author: George Howard, Jr., Judge. David Newbern, Judge,

text:
    CITY OF LITTLE ROCK v. Gerald L. BREEDING and John Michael HENDERSON
    CA 80-178
    606 S.W. 2d 120
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980
    Rehearing denied November 5, 1980

      jR. Jack Magruder, III, City Atty., by: Carolyn B. Wither-spoon, Asst. City Atty., for appellant.

      Wright, Lindsey & Jennings, for appellees.
   George Howard, Jr., Judge.

This is an appeal from a decree in an action brought by appellees to rezone 1.8 acres of land from a single family district (A-residential) to a commercial district (F-commercial) for the purpose of constructing a convenience store — where the chancellor found:

1. The property is located in an established and expanding business district;
2. The Board of Directors acted in an arbitrary, capricious and unreasonable manner in rejecting appellees’ application.
And, consequently, the court concluded:
‘THEREFORE, the said property is hereby rezoned to “F”/’

The thrust of appellant’s argument for reversal may be stated by citing appellant’s points relied upon in articulating the purported errors made by the chancellor:

1. The trial court erred in finding that the appellees’ property was located in an established and expanding business district.
2. The trial court’s finding that the decision of the Little Rock Board of Directors in denying appellees’ request for rezoning was arbitrary, capricious and unreasonable is contrary to the preponderance of the evidence.
3. The trial court erred in rezoning the property directly by decree.

The essential facts for an understanding of this controversy, as well as for a resolution of the issues tendered, are:

Appellees’ parcel of land is located at the southeast corner of Green Mountain Drive and Rainwood Road in Little Rock. The property is part of and, as a matter of fact, is surrounded by approximately 65 acres of land either used or zoned for commercial purposes.

Propertly immediately north of the subject property is a vacant tract of land, consisting of six acres, with street improvements and zoned “S” commercial.

To the east, extending several hundred feet to Interstate Highway 430, is Charles Valley Commercial Subdivision, which is mixed “F” commercial and “G” commercial zoning.

To the west and southwest of the subject property are the Green Forest and Williamsburg apartment complexes; and the Fox Run apartment complex is located on the northwest quadrant of the intersection of Rainwood Road and Green Mountain Drive. It is undisputed that these apartment complexes are buffers to any development to the west and southwest of the subject property. This conclusion was acquiesced in by both appellees’ expert witness, Don R. Venhaus, a Planning and Land Use Consultant, and appellant’s expert witness, Nathaniel Griffin, Planning Director for the City of Little Rock. There are 716 apartment units in these three apartment complexes.

To the south and southeast of appellees’ property are a mini-warehouse complex which has been classified as “I” light industrial use and a commercial daycare center.

On January 29, 1979, appellees filed their application for rezoning of the subject property to commercial. On February 27, 1979, the Planning Commission recommended to the City Board of Directors tnat appellees' request be denied. While the Commission’s report recommended that the application be denied, the report found: (a) “No issue exists” relative to street right-of-way and traffic considerations, (b) no expressions regarding standards of quality, (c) no effect on public finances, (d) no adverse impact expected on utilities, (e) no adverse impact on public services, (f) no opposition from the neighborhood, (g) no effect on environs, and (h) as far as legal considerations and reasonableness, the report concluded:

“The property abuts vacant nonclassified land to the east, vacant “G-l” commercially zoned land to the north, a light industrial but .unclassified use to the south”

On May 1, 1979, the Board of Directors denied appellees’ application, and appellees filed their action on May 31, 1979.

Appellant filed its answer on June 19, 1979, asserting, among other things, the following as the basis for resisting appellees’ lawsuit:

“6. Defendant states that the Little Rock Board of Directors acted in the best interest of the City of Little Rock and that such action taken by the Board of Directors with respect to the Complaint herein was done consistent with and pursuant to such interests. Defendant also states that the denial of the rezoning was directly related to the health, safety, and welfare of the City of Little Rock.”

The 65 acre tract is bounded on the north by Rodney Parham Road and, partially on the east by Interstate Highway 430. 7

Mr. Venhaus in explaining his familiarity/with the area during his tenure as Director of Planning for Little Rock testified:

“A.. . [I]n the early seventies the city didn’t have zoning jurisdiction in this area, the areas outside of the city. The city had no zoning or development controls other than subdivision platting process. The properties were required within five miles of the city limits to subdivide just as though they were inside of the city. We, being the City, and I am not referring only just to the Planning Department, but also then to the traffic department and other development related departments, recognized that this area was an emerging commercial area, and that was not our personal speculation. It was publicly announced by Rector-Phillips-Morse in the development of Charles Valley, that they intended to develop Charles Valley and the area just to the east of the subject property as a commercial area, and there were evidences of other commercial developments in the area, so we had no way of restricting or confining or stopping commercial areas, so the city did the best they could to anticipate the future commercial development of the area. Therefore, all of the streets, or collector streets, and all of the setback lines, are based on the assumption that the area would develop as a commercial area." (Emphasis added)

Gerald L. Breeding, one of the owners of the subject property and developer of the commercial property adjacent to the property in question, testified:

“A. . . At the time we acquired the property, although the property was outside of the city limits, it was our understanding that if the property was within five miles we had to comply with subdivision requirements, which there were many to be complied with. In fact, we are the ones who put Green Mountain Drive in from its inception. We had curb and gutter requirements, sidewalk requirements, drainage requirements, and also had to bring water to the area from about Regal Drive and Rodney Parham Road down to the intersection. We had to bring an eight inch water line from that point down to where Green Mountain Drive is presently and all the way down Green Mountain Drive to comply with the subdivision requirements.”

While Mr. Griffin, appellant’s expert witness, testified about an evolving land use in the area that was not commercial, he testified as follows on cross-examination:

“A. ... I was speaking in terms of the entire area, as opposed to that area limited to the east of Green Mountain.
Q. But, now, are not these apartments which are in place, and rather large and have been there for quite sometime, a complete buffer to any development that might occur to the west? How can there be any impact from this tract when apartments are setting between this tract and the property west — ?
A. I wouldn’t dispute that.
Q. It is a buffer?
A. I wouldn’t dispute that the development of the subject tract commercially would not impact areas to the west of Fox Run or Greenwood Forest or Williams-burg. The concern is the ultimate development of the unused property to the east of Green Mountain.
Q. Other than the Berkshire condominiums where is there emerging residential use that you are talking about?
A. What I am referring to is the increased interest in condominium and multi-family type of development as an alternative to single family, and the fact that at numerous locations in west Little Rock and in this general area such projects are undergoing, and I think what we are going to see is that much of the property presently zoned for commercial and office and other intensive uses will ultimately be used for that purpose within the area encompassed in this map.
Q. But other than the area encompassed in this plat, which is, of course, corresponding to this plat, what is the residential use there, the emerging residential use you talk about, except Berkshire condominiums? Isn’t Rodney Parham all commercial? Isn’t it commercial here at the corner?
A. Certainly.
Q. Isn’t Merrill Drive going commercial and Market street going commercial? Isn’t Shackleford going commercial? Where is the residential use other than the Berkshire condominium monopoly?
A. Well, I would reiterate that when you look at this area in a broad context it would be easy to detect this development pattern emerging.
Q. Well, where is it?
A. Well, that property just to the west on Rainwood Drive.
Q. Buffered by the apartments from this site?
A. Well

Relative to the highest and best use of appellees’ property, Mr. Breeding testified:

“Q. Why is it [the subject property] not suitable for residential use or an office use?
A. Well, mainly because of the size of the tract remaining, 1.8 acres. It couldn’t be used for apartments because of density and amenities that would be required to be marketable. It certainly is not a location for offices in that it is not on any major- roadway such as Rodney Parham Road, or the interstate, and that pretty much restricts it to a commercial use to be used as a convenient area for the market that is already built into the area.”

Mr. Venhaus testified:

“A. ... I think general commercial zoning and development of the site is the highest and best use for that property.”

Mr. William B. Putnam, expert witness in behalf of the appellees, testified:

“A. In my opinion the highest and best use for the subject property is an “F-commercial” use or a “C-3” under the present codes, or a “G”, but a commercial use within the classification of the commercial uses in the area.”

The basis of appellant’s resistance to appellee’s request for rezoning the subject property to commercial may be summarized:

While appellee’s property should not be classified as “A” Single-Family, given the surroundings in which the property is situated, it seems that a “Quiet Business’ classification of a “lower medium-density apartment or condominium developments, “would be appropriate, provided the property north of appellees’ property ‘designated as “G-1” ’ would be used for either office or apartment use.”

Furthermore, appellant asserts that there seems to be no compelling need for a convenience store on the subject property, since such a facility is presently in existence one block north of appellees’ property at Green Mountain Drive and Rodney Parham Road; and that the establishment of a convenience facility would have a negative effect on the continued trend of residential development in the area.

It is universally recognized that a municipality may adopt and administer comprehensive zoning regulations under its police powers in order to encourage and promote a systematic growth and development of a community, or for the protection of the public safety, health and morals. It is also equally well recognized that when decisions of a zoning board are predicated on planning principles, the expertise and discretion of planning authorities, a court will not interfere with such decisions unless it is clear that the decisions are arbitrary, capricious and unreasonable. In other words, while a zoning agency has wide discretion in administering zoning regulations, its powers are not absolute and unlimited; and where it has been demonstrated that there has been an abuse of the police powers or a decision impinges due process, a court of equity will intervene in order to afford relief. See: City of Little Rock v. Sun Building & Developing Company, 199 Ark. 333, 134 S.W. 2d 583 (1939).

It is also settled law that a decision, as here, on appeal from a chancery court will be affirmed where the holding is not clearly against the preponderance of the evidence. This proposition, of long duration, has been reaffirmed by the adoption of Rule 52, of Arkansas’ Rules of Civil Procedure, which became effective July 1, 1979:

“. . . Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses

See also: Charles M. Taylor v. City of Little Rock, et al, 266 Ark. 384, 583 S.W. 2d 72 (1979).

After carefully reviewing the evidence and giving credence to the legal concepts just mentioned, we are persuaded that the evidence here is so overwhelmingly supportive of appellees’ position and the chancellor’s findings that we have no difficulty in affirming the trial court’s decision. The evidence in this case does not lend itself to a situation where the proof is evenly balanced or so conflicting that the better part of discretion would have required the trial court to defer to the wisdom and discretion of the Board of Directors of Little Rock. Stated differently, we are of the view that reasonable minds could not differ as to the inescapable conclusion to be drawn from the evidence here that appellant’s decision to deny appellees’ request for rezoning their property to commercial does not support sound planning.

The area of land which surrounds appellees’ property is pretty much restricted to commercial use or is zoned for commercial use. Moreover, the subject property is pretty much restricted to commercial use because of its size and location.

Mr. Venhaus, former Director of Planning for Little Rock, testified that it became evident in the early seventies that the area was emerging “commercial” and that inasmuch as the City of Little Rock had no way of restricting the commercial development, since the area was outside of the corporate limits of the city, the city did the next best thing, in the anticipation of the future commercial development of the area, to require all developers to construct proposed streets, collector streets and setback lines in accordance with commercial standards.

Mr. Breeding emphasized that the subject property is not suitable for residential or office use; that it could not be used for apartment use because of “density and amenities that would be required to be marketable;” and that the property is really restricted to commercial use as a convenience outlet for an existing market. Mr. Putnam also acquiesced in this conclusion by stating that the highest and best use for the property is a commercial classification.

Mr. Griffin, appellant’s witness, conceded that the apartment complexes served as a complete buffer to any development that might occur to the west of appellees’ property and, consequently, there would be no impact to residential districts west of the apartments if the property were rezoned commercial. Moreover, when Mr. Griffin was pressed, on cross-examination, to identify “the residential use other than the Berkshire condominium monopoly” in the immediate area, he referred to property west of Rainwood Drive which is buffered by the apartments from appellees’ property.

We are persuaded that the factual situation before us is not comparable to a situation where the subject property is an isolated tract of land is a high density residential area and the subject property is particularly desirable for a business use suitable only to the inclination of the owner. No land owner resisted appellees’ request for rezoning. As a matter of fact, the Planning Commission’s report registered virtually no negative responses while appellees’ application for rezoning was under investigation.

We hold that the denial of appellees’ application for rezoning of the subject property to F-commercial was an arbitrary denial of appellees’ right to make use of their property to its highest and best use which would not in any way impact adversely on any adjacent property. Metropolitan Trust Company v. City of North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613 (1972); City of Blytheville v. Thompson, 254 Ark. 46, 491 S.W. 2d 769 (1973); Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925).

Affirmed.

Newbern and Penix, JJ., dissent.

David Newbern, Judge,

dissenting. This is an appeal from a judgment holding that the Little Rock City Directors’ refusal to rezone property from “A” to “F,” or from residential to commercial use, was arbitrary and capricious. The question here is whether the chancellor’s decision was clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.

The property in question is roughly 1.8 acres located on the southeast corner of the intersection of Rainwood Drive and Green Mountain Drive in the City of Little Rock. The Planning Commission recommended against, and the Board of Directors turned down, the appellees’ request that the land be rezoned from “A,” which is single family residential, to “F,” which is commercial, zoning. The chancellor, after a hearing, determined the board acted in an arbitrary and capricious manner. His decree stated as his reason that the property in question is in an “established and expanding business district.” In defining the “business district,” the trial court and the majority here considered all the property in an at least 65-acre area bounded by Rodney Parham Road on the north, 1-630 on the east and Green Mountain Drive on the west.

The “established and expanding business district” test applied by the chancellor is based upon our supreme court’s decision in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925). That case used the above-quoted language in holding that: “[w]hen a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” 169 Ark. at 1031. That language has, of course, been limited over the years, and in Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W. 2d 912 (1975), and City of Conway v. Housing Authority, 266 Ark. 404, 584 S.W. 2d 10 (1979), the supreme court made it clear that the mere fact that property is located adjacent to commercial property does not entitle its owner to a rezoning for commercial use. The main question presented in this case, and glossed over by the majority, is the definition of “established and expanding business district.”

My problem with the appellee’s argument and the chancellor’s decree is that there is hardly any evidence that the land in question here was in an “established and expanding business district.” The land to the north, across Rainwood Drive is zoned G-l (commercial), but it has not been commercially developed. To the immediate west is a large apartment (residential) complex area zoned “D.” To the immediate south and on some of the east boundary is an area occupied by some “mini warehouses” which serve mostly as boat storage facilities for persons who dwell in the nearby apartments, and which constitute a non-conforming use in an area zoned “A.” The remainder of the property on the immediate east is zoned “A” and is largely undeveloped. There is a day care center just south of the “mini warehouses.” That is a commercial, non-conforming use, consisting of a single family dwelling converted to that use.

Thus, there is no actual commerical development on any property that is adjacent to the land in question. The most that can be said for the trial court’s application of the Pfeifer rule is that the land to the north is zoned commercial, but is not so developed, and the adjacent land to the south is subject to a non-conforming industrial use.

The only case cited by the appellees in the portion of their brief devoted to showing how the Pfeifer principle should be applied in their favor here is Metropolitan Trust Co. v. City of North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613. The case is cited for the proposition that it was proper for the chancellor to consider the zoning of the adjacent lands. I agree, but the mere existence of the “G-l” land across the street does not constitute much to establishment of a preponderance of the evidence. One look at the Metropolitan Trust case is enough to show why the principle of Pfeifer required zoning there but not here. The land in question was the southwest quandrant of the intersection of Highway 67-167 and McCain Boulevard, two primary traffic arteries, and all of the other three quadrants were zoned commercial. Even the vacant land in question had been in commercial use before it was annexed to North Little Rock. Thus, a determination there that the area was not in an “established and expanding business district” was against the preponderance of the evidence, and that is what the supreme court held.

The appellees want us to look at the larger picture to include such a clearly commercial “strip” as Rodney Parham Road which is many blocks away, and other “F” and “G-l” zoned lands which are separated from the site by property zoned “A.” I know of no authority which would permit such an approach, and indeed I find it a dangerous one. That there is a good deal of commercial or potentially commercial property in an area 65 acres or more surrounding land under consideration which is less than two acres does not entitle the small piece to commercial zoning. In my opinion, to suggest that because there is commercial development in a 65-acre tract any property in that tract is entitled to commercial classification is to suggest the demise of zoning altogether.

Although the Pfeifer case was not specifically cited by our supreme court, the principle of the case as it has evolved, was dealt with in Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974). The supreme court referred with approval to the chancellor’s decision of conditions surrounding the land sought to be zoned commercial which request the city board had denied. The conditions were strikingly similar to those here:

It also must be observed that the testimony equally shows by the aerial photo that although you must concede the existence and near proximity of light industry and commercial areas, and . . . the sewage pumping station, it is equally true that on two of the four sides of adjacent property, it is all residential .... [256 Ark. at 354]

Admittedly, the Lindsey case differs in that there the decision was to affirm the chancellor’s decision that the board’s action was not arbitrary and capricious. However, in none of the extensive number of cases reviewed in Lindsey was there a review of the circumstances surrounding the site being considered in terms suggested by the majority here. Application of the Pfeifer principle in Lindsey and all other cases of which I am aware was limited to consideration of the area adjacent to the site in question. Given my view that that limitation is appropriate and necessary, I find the preponderance of the evidence here clearly favored the appellant.

Other than their demonstration of the physical circumstances in the area, the appellees presented expert testimony which dwelt upon opinions as to how the property should have been zoned by the board. None of that testimony was sufficient to base the conclusion the board’s decision was arbitrary and capricious. The chancellor’s decree does not mention this testimony but is based upon facts demonstrable by the zoning code, an aerial photo and the planning commission report which was before the board. These matters were appropriately considered, but the decision was clearly against the preponderance of this evidence if the Pfeifer test is still to be applied.

The majority opinion quotes testimony mentioning the commercial type concrete work done by the appellees when the big tract was developed. I assume this work was done to meet the City’s requirements, but that it was done with the expectation of making a profit on the subdivision and with no guarantee that the property would subsequently be zoned to suit them when it was annexed.

Nor do I understand the majority opinion’s fixation on “highest and best use” which is not defined by it. If, as I suspect, in this context that means “most remunerative use,” then what piece of border line or even nearby property is protected against commercial rezoning?

In my opinion decisions like this one strike hard at the zoning concept. When the Pfeifer decision is properly applied, this is not even a close case. I find the failure of the majority opinion even to discuss the rationale of that case, which was the focal authority for the chancellor’s decision and the main bone of contention on this appeal, to be, to say the least, distinctive.

For all of these reasons, but mostly because .1 believe the majority has failed to apply correctly the Pfeifer case holding, I respectfully dissent.

Judge Penix joins in this dissenting opinion.

      It is plain that appellant-defendant’s answer merely pled conclusions rather than any basic factual objections to appellees’ complaint'for relief. ’

      While the City of Little Rock had no zoning or development control over the area “during the early seventies,” the city did have authority to approve subdivision platting of properties within five miles of the corporate limits of Little Rock.


source: Caselaw Access Project

author: George Howard, Jr., Judge.

license: Public Domain

text:
    Irby TEEL v. Charles L. DANIELS, Director of Labor, and CHARTER BUILDERS
    E 80-35
    606 S.W. 2d 151
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Appellant, pro se.

      Herm Northcutt, for appellees.
   George Howard, Jr., Judge.

Claimant was disqualified by the local agency for benefits under Ark. Stat. Ann. § Sill 06(a) (Repl. 1976) of the Employment Security Law on the grounds that he left his last work voluntarily and without good cause connected with the work. The action of the agency has been affirmed by both the Appeals Tribunal and the Board of Review.

This appeal presents the typical issue involved in employment security cases, namely, whether the holding of the Board of Review is supported by substantial evidence.

The claimant testified essentially, before the Appeals Tribunal, that he left respondent’s employment when he and a representative of his union were unable to persuade respondent to take corrective measures to eliminate certain hazards that he and some of his fellow workers were subjected to in work assignments, the repeated and constant verbal abuse that he and his fellow workers were subjected to from the superintendent of the job, and the failure of the respondent to provide drinking water and adequate toilet facilities for the workers.

Specifically, the evidence reflects that while the respondent’s work force consisted of between 50 and 75 individuals and involving a construction project that embraced approximately 100 acres of land, respondent provided only three sani-cans, as toilet facilities, for the work force. As a consequence, employees had difficulty in making use of these facilities in order to relieve themselves when on ground level; and that the work force performing roofing assignments, which included the claimant, were admonished to relieve themselves by urinating from the roof rather than leaving their work stations in order to make use of the sani-cans; that drinking water was scarce and that water which was provided was generally not fresh; and that claimant and his associates were rebuked and even threatened to be discharged when they sought to register complaints about these conditions. Claimant also testified that he was required to ascend a 36 foot ladder in order to reach his work station and that the ladder was not built to accommodate a person of his size; that claimant and three of his associates were required to perform roofing assignments without being afforded handrails for their personal protection and safety; and that on the morning that claimant voluntarily left, the roof was “iced over” and when claimant reported this to the foreman, claimant simply received the usual threat of being fired if he did not commence work.

Mr. Craig Cherry, Project Engineer, appeared in behalf of the respondent. Mr. Cherry testified that he had no personal knowledge of the problems enumerated by claimant by stating:

“Ah, like Mr. Teel says, most of my information is hearsay because I’m not per se in the field, I am in the office.”

It is clear that Mr. Cherry’s testimony, which was offered to refute the charges of the claimant, is hearsay for he possessed no personal knowledge of the circumstances related by claimant. It was vital to respondent’s case to have some representative who had direct and personal knowledge regarding the merits or demerits of claimant’s charges. No explanation was given for the absence of the foreman and the general superintendent. Claimant’s testimony stands uncontradicted.

The standard resorted to by the courts in determining .good cause in connection with an employee’s voluntary departure from his employment has been stated as:

“. . . [A] cause which would reasonably impel the average able-bodied, qualified worker to give up his or her employment.....
“. . . ‘[G]ood cause’ is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved. In this context, good faith, which has been held to be an essential element of good cause, means not only the absence of fraud, but also the presence of a genuine desire to work and to be self-supporting. ...
“. . . [Another element] in determining good cause is whether the employee took appropriate steps to prevent the mistreatment from continuing. ...”

See: 76 ALR 3d, “Good Cause” for Abandonment of Employment, § 2, pages 1093 and 1095.

It is plain that claimant and several of his fellow workers were subjected, without provocation, to not only threatening, profane and abusive language, but were told that they would be fired if they continued to complain about the lack of toilet facilities, drinking water and safe working conditions.

When claimant’s personal efforts proved futile, claimant’s union steward, an employee of respondent’s, was requested to intercede, but the steward was threatened likewise, when told if he did not return immediately to his job assignment. While an official representative of claimant’s union was permitted to dicuss the matter with respondent’s superintendent and assurances were made that corrective measures would be taken, the situation in reality appeared to have gone from bad to worse. It is clear that the proverbial straw that broke the camel’s back was when claimant was expected to ascend a ladder to a heighth of 36 feet to perform some roofing assignments where the decking was iced over and produced an immediate hazard to claimant’s personal safety. Given all of the circumstances enumerated, we are not persuaded that the claimant may be characterized as a “supersensitive employee” who has blown a rather minor and insignificant incident out of proportion in order to recover unemployment benefits under the pretext that working conditions and the harrassment on the part of his superintendent constitute good cause for abandonment of his employment.

We hold that the evidence is insufficient to sustain the decision of the Board of Review.

Reversed and remanded.


author: David Newbern, Judge.

text:
    Wanda Clark Butler VANCE v. Lillian BUTLER
    CA 80-188
    606 S.W. 2d 153
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Brockman & Brockman, by: C. Mac Norton, for appellant.

      Jenkins & Berry, for appellee.
   David Newbern, Judge.

In this child custody case the appellant, who is the mother of four children, was denied custody of them after the death of the children’s father who had been their custodian. The chancellor awarded custody to their paternal grandmother who is the appellee and with whom the children had lived before and after their father’s untimely death. We find the chancellor’s decision was not clearly erroneous or clearly against the preponderance of the evidence, and thus we affirm. A. R. Civ. P. 52.

Testimony revealed that the appellant had a long lasting affair with an employee of her husband. The affair took place in the farm home of the appellant and her husband in which the children were present. There was testimony that this conduct had an adverse effect upon at least the oldest child. Eventually the appellant left her husband and continued the affair for some time. Upon her divorce from the children’s father, the appellant agreed he should have custody of the children. Prior to marrying him she lived for some ten months with a third man, Mr. Vance, who is her current spouse.

There was a swearing match at the hearing between neighbors and friends who lived in and about the small Ethyl community where the appellant and the father of the children had lived. Some said she had been a good, or at least average, mother to her children. Others said she did not give them proper care, leaving them dirty and unkempt. At the time of the hearing, the two older girls were eleven and eight, and the twins were four years old.

All of the testimony showed the appellee, who was 59 years old at the time of the hearing, was a fine homemaker who cared well for the children. There was some evidence she was taking medication, but a doctor said she was in good health.

The main burden of the appellant’s argument is that although the chancellor had a right to consider her admitted misconduct, this was not evidence of her present fitness, or lack of it, because most of it occurred some two years before the hearing. The appellant and her husband testified about wanting the children and about the good child raising conditions in their Hot Springs home.

We simply cannot find that, despite the presumption favoring a natural parent, the chancellor’s decision was clearly against the preponderance of the evidence. The appellant admitted upon oral argument that the chancellor had a right to consider the testimony with respect to the appellant’s misconduct. In view of the rule that in child custody cases the “personal observations” of the chancellor have special significance, Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500 (1958), we cannot say he reached an incorrect result as to the best interests of these children. Digby v. Digby, 263 Ark. 813 567 S.W. 2d 290 (1978); Perkins v. Perkins, 266 Ark. 259, 589 S.W. 2d 588 (Ark. App. 1979).

We agree with all of the cases cited by the appellant and the propositions for which they stand. For example, we agree that “unless abandonment [of children] is clearly shown, or unless unnatural proclivities upon the part of parents is established, such as cruelty or negligence amounting to parental indifference, the superior claim of a father or mother is given first consideration.” McGraw v. Rose, 224 Ark. 96, 271 S.W. 2d 912 (1954). In our opinion, however, the chancellor was not clearly incorrect in finding that “first consideration” overcome by the evidence.

The only serious objection the appellant makes with respect to the appellee’s ability to care for the children is that the appellee is now 60 years old and when the twins are 14 she will be 70. The chancellor had not terminated the relationship between the appellant and her children. She has been given liberal visitation rights, and the chancellor has retained jurisdiction of this matter so that, if circumstances change, the best interests of the children may continue to be served by whatever custodial change, if any, may thus be necessitated.

Affirmed.


text:
    Ben SHINN and Ellen M. SHINN v. FIRST NATIONAL BANK OF HOPE, ARKANSAS
    CA 80-216
    606 S.W. 2d 154
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Chambers & Chambers, by: Melvin T. Chambers, for appellants.

      James H. Pilkinton, Jr., for appellee.
   David Newbern, Judge.

This appeal is from a judgment in favor of the holder of an overdue promissory note. The appellants, who were the makers of the note, contend the judgment was in error because they proved fraudulent conduct on the part of the appellee in dealing with the appellants. The chancellor found that the alleged instances of fraud were not proven, and we agree.

On June 10, 1975, appellant Ben Shinn, Olin Lewis and Joe Mercer executed, as co-makers, a note in favor of the appellee in the amount of $32,000. The testimony shows that Shinn and Lewis were acting as accommodation makers to enable Mercer to purchaser the Hope Furniture Company with the borrowed money. The sole collateral pledged in support of the note was a $20,000 certificate of deposit which belonged to Mr. Shinn. Mr. Hays the President and Loan Officer of the appellee, testified that neither Mr. Mercer nor Mr. Lewis, who was Mercer’s father-in-law, could present a sufficient financial statement to justify the loan, and that the loan was made based primarily upon the credit of Mr. Shinn.

As the note originally appeared, it provided for quarterly payments of $3,000. On September 10, 1975, the face of the note was changed by a bank employee to provide for quarterly payments of $750. Mr. Hays’ testimony shows the parties contemplated that $3,000 per year would be paid on the note, and thus the change was to correct a scrivener’s error. Several $750 payments were made on the note, the last one being made August 23, 1976, but the note ultimately became overdue.

On April 9, 1976, the Bank had, by letter, denied a loan application from Mr. Shinn in the amount of $150,000, the proceeds from which he had intended to use in a Texas motel operation. The Bank cited, as one reason for denying the $150,000 loan, “the situation with the Hope Furniture-Joe Mercer loan as it is.” The letter closed by saying “we will work closely with Joe Mercer and his business operation here in Hope.”

On August 4, 1976, the appellee received from a Mr. Kusin a notice required by the part of the Uniform Commercial Code which deals with bulk transfers, Ark. Stat. Ann., 85-6-105 (Add. 1961), stating that Kusin proposed to purchase the Hope Furniture Company from Mr. Mercer and that creditors should file claims by August 16, 1976, as the sale was to take place August 18. With the notice was enclosed a statement of the terms of the proposed sale. It provided the sale proceeds would be used to pay certain creditors with the balance to go to the Bank toward Mercer’s obligation to the Bank. The appellee had no security interest in the assets of Mr. Mercer or Hope Furniture Company as collateral for the original $32,000 note. On August 20, 1976, Mr. Kusin sent the appellee a check in the amount of $8,-747.31. The appellee applied $1,847.44 to the $32,000 note. Three thousand dollars was applied to retire a separate $3,-000 note Mercer had made to the Bank for purchase of a truck, leaving $3,806.47 which the appellee applied to overdrafts in Mr. Mercer’s checking account.

The appellants, on November 15, 1976, made a second note payable to the Bank in the amount of $29,540.96, which was the amount due, including interest, on the note described above. In exchange for the second note, the Bank assigned the first note to the appellants without recourse. The $20,000 certificate of deposit was repledged by the appellants as collateral for the new note. When this note became overdue, the Bank applied the certificate of deposit, and brought suit for the balance of $9,540.96, plus interest.

It was not until November 4, 1976, that the appellee demanded payment of the $32,000 note from Mercer, and it was not until November 15, 1976, that the appellant’s note, which is the subject of this suit, was executed in exchange for assignment of the $32,000 note.

Other facts will be stated as we discuss the appellants’ allegations of errors.

1. Alteration of the note.

The appellants contend that because the original $32,-000 note was altered, they were not liable on it and thus should not be liable on the note they executed in exchange for the assignment. The contention is based upon Ark. Stat. Ann., § 85-3-407(2)(a) (Add. 1961). The statute provides that an alteration “which is both fraudulent and material” by the holder of an instrument discharges a party whose contract is thereby changed, unless the party assents. The appellants showed the change might have been material, as had Mercer’s quarterly payments been $3,000 rather than $750, the obligation on the original note at the time the default occurred would have been considerably less. There is however, no showing whatever that the alteration was done for fraudulent purposes. The chancellor obviously was satisfied with the explanation of the appellee’s president that no one expected the payments to be $12,000 per year at the time the note was made. His finding is supported by the evidence and not clearly erroneous. A.R. Civ. P. 52.

2. Failure to assert claim.

The appellants’ second contention is that the appellee had an obligation to assert its claim on the $32,000 note against Mercer and Hope Furniture Company at the time notice was received that the company was to be sold. Although it is not clear from the appellants’ brief, their contention apparently is that had the Bank filed its claim with Kusin, it would have been paid in full by him out of the proceeds of the sale. The appellants imply that because Mr. Hays went to Texarkana to solicit Mr. Kusin’s business with respect to Hope Furniture Company, the Bank, in exchange for Kusin’s account, agreed not to collect from the proceeds of the sale to satisfy Mercer’s note. This argument is based on nothing but speculation. The appellants have not shown that there was any duty whatever upon the Bank to claim against the sales proceeds or that the assets of the furniture company were in any way to be considered collateral for Mercer’s note.

The appellants seem to contend the Bank misled them by agreeing to “work with” Mercer in the April letter. We find no merit in that argument. The new loan to Mr. Shinn was being denied, among other reasons, because the Bank apparently recognized the Mercer, Lewis, Shinn note was undersecured. The remark in the letter created no special duty, and the appellants cite no authority even suggesting it did.

3. Burden of proof.

The appellants next contend the trial court erred in holding they had the burden of proof on the question of “bad faith” with respect to the Bank’s failure to assert its claim against Kusin after the notice of sale was given. The appellants argue this point with no citation of authority whatever, and, as it is not an obviously correct proposition, we need not consider it. Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251 (1977); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977).

4. Amendment of pleading.

Citing A.R. Civ. P. 15(b), the appellants contend they should have been allowed to amend their answer after the trial to state a claim to recover the $20,000 represented by the certificate of deposit which was applied by the Bank to the appellants’ indebtedness. The appellants contend the evidence showed that Mr. Hays knew about the sale of the furniture company and the material changes on the original note and that at the time he discussed the forfeiture of the certificate of deposit with Mr. Shinn, Mr. Shinn was unaware of these events. The court denied the proposed amendment to conform to the evidence upon the appellees’ objection that it would be prejudicial to it. The Bank’s contention is that such an amendment which would, in effect, .have amounted to introduction of a counterclaim could have been successfully rebutted had it been an issue at the trial and that such a belated amendment would have the effect of precluding the appellee from presenting vital evidence. An example of the kind of item the Bank suggests it would have introduced had the counterclaim been an issue is a certified judgment in favor of Ben Shinn against Olin Lewis on the $32,000 note which was assigned by the appellee to the appellants.

Rule 15(b) gives the trial court the authority to permit amendment of a pleading even after judgment, however, that subsection of the rule has to do with instances in which “issues not raised by the pleading are tried by expressed or implied consent of the parties.” Here, it is apparent that the appellee did not at any point consent to trial of any counterclaim, and it was not an issue. Although F.R.C.P. 15(b) has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, the cases permitting it have done so where it was clear all the relevant evidence was in the record or the issue was clearly one the parties contemplated as being before the court. In our opinion, had the chancellor allowed the requested amendment, the result would have been the same, as he found no fraud which would have had to have been the basis of the counterclaim.

5. Impairment of collateral.

The appellants cite the section of the Uniform Commercial Code dealing with “impairment of recourse or collateral.” Ark. Stat. Ann., § 85-3-606 (Add. 1961). This section refers to the holder of an instrument, who:

without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary. . . .

It provides that such a holder “discharges any part to the instrument” to the extent he does so without such party’s consent.

The appellant’s brief has materially misquoted the statute as follows:

“Impairment of recourse or of collateral. — (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a) . . . with knowledge of recourse agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person.”

As “quoted” by the appellants, the statute is made to appear to be effective against a holder who releases an obligor with knowledge of recourse the holder may have against the obligor. The statute obviously contemplates knowledge of recourse the party, in this case Mr. Shinn, may have had against the person discharged or released.

It is enough to say that neither Mr. Shinn nor the Bank had any “recourse” against Kusin, and the Bank took no action we can find which could be characterized as releasing or discharging Kusin from any obligation.

6. Sufficiency of abstract.

The appellee contends that it was required to supplement the abstract to the extent of 13 pages filed with its brief for which it should be reimbursed a printing cost and attorney fee. While we agree the appellant’s abstract left much to be desired, we choose, given the circumstances of this case, to exercise the discretion permitted us by Rule 9, and we decline to award those specific costs and fees.

Conclusion

W concur in the chancellor’s determination that the appellants attempted to prove fraud as a defense to the claim on the note failed. Therefore, the judgment is affirmed.

Affirmed.

Judge Piikinton did not participate.

        Dale Benz, Inc. v. American Cas. Co., 303 F. 2d 80 (C. A. 9, 1962).

        Rogers v. Union Pac. R. Co., 145 F. 2d 119 (C.A. 9, 1944.)


author: George Rose Smith, Justice.

text:
    Wayne WICKS v. STATE of Arkansas
    CR 79-194
    606 S.W. 2d 366
    Supreme Court of Arkansas
    Opinion delivered October 20, 1980

      Robert A. Newcomb, for appellant. |

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

By an information containing two counts the appellant was charged with having raped the same woman twice, once on August 17 and again on September 26, 1978. The prosecutrix testified to both occurrences, but the court, without objection, submitted only a verdict form permitting the jury to find the defendant guilty of rape, rather than of two separate offenses. The jury found Wicks guilty and fixed the punishment at life imprisonment. We find no merit in the six points that are argued, nor any other reversible error.

The prosecutrix testified that she did not know Wicks before the incidents and did not learn his identity with certainty until just before the information was filed in December, 1978. Both incidents occurred after she had gone to bed at night. In both instances the intruder found her in bed after gaining entrance into the house. The prosecutrix said that immediately after the first rape she talked with her assailant for about 20 minutes on her front porch, where she sat facing a street light. There was also a full moon. She was positive in her identification. She discussed the incident with her married daughter and with a fellow employee where she worked, both of whom testified, but she did not report either offense to the police until about two weeks after the second one, when certain damage to her screens led her to suspect that still a third attempt to enter her house had been made.

First, it is argued that the imposition of a life sentence in this case was a denial of due process of law, because the case was submitted to the jury without any guidelines to help the jury in its deliberations. On this point Wicks relies on the decision of the district court in Rogers v. Britton, 476 F. Supp. 1036 (E.D. Ark., 1979), holding that such guidelines are essential. That decision, however, was reversed earlier this month, after the case at bar had been fully briefed and submitted for our decision. Britton v. Rogers, 631 F. 2d 572 (8th Cir., 1980). The Court of Appeals held that guidelines are required only in capital cases.

Inasmuch as the Rogers case may yet be carried to the Supreme Court, we need only say in disposing of the present case that we adhere to our view that such guidelines are unnecessary except in capital cases. Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980); Rogers v. State, 265 Ark. 945, 582 S.W. 2d 7 (1979). It is the finality of a death sentence that makes capital cases unique. A life sentence has no similar irrevocability. If guidelines were mandatory in life sentence cases, it would be only the shortest of steps to extend the requirement to a sentence of, say, 50 years. Beyond that there is no reasonable stopping place. Moreover, a jury hardly needs to be told about matters that it would inevitably consider anyway, such as the defendant’s youth or his mental condition or his past criminal record. Such matters are ordinarily emphasized by counsel in their closing arguments. The common law approach has been to allow juries, representing the common sense of the community, to impose punishment on a case by case basis. We are unwilling to say that for centuries common law jury trials have been a continuing denial of due process of law. Unless the Supreme Court so holds we do not think it proper for us to take that view.

Second, it is argued that the evidence does not support the verdict, for the reason that no rational person could find Wicks guilty beyond a reasonable doubt. The proof, however, simply presented a question of fact for the jury. Wicks flatly denied the charges and sought to show by other witnesses that he was elsewhere at the time of each offense. The charges, however, were not filed until some three months after the second incident, Wicks’s identity not being known. After that lapse of time both Wicks and his witnesses were understandably handicapped in trying to pinpoint his whereabouts on either night. It cannot be said that the proof shows conclusively that Wicks could not have committed either crime. Thus the issue was for the jury.

Third, it is insisted that the trial judge should have granted a motion for a mistrial after the following testimony by the prosecutrix on direct examination:

Q. Have you told anybody else about the rape, other than the police and your daughter?
A. Well, my boss knows why I’m here.
Q. I mean before you reported it?
A. No. I told him what I had to leave for when I went to Little Rock, for my polygraph test.

After a discussion in chambers, with defense counsel candidly conceding that the remark was spontaneous and not planned, the court denied the motion for a mistrial and promptly instructed the jury to disregard the statement about a polygraph test. We perceive no error. True, the result of a polygraph test is ordinarily not admissible, but it does not follow that every reference to such a test calls for a mistrial, any more than that is so when the court instructs the jury to disregard a statement based on hearsay. A mistrial is such a drastic measure that it is warranted only if justice could not be served by going on with the trial. Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975). Here we hold that the admonition to the jury was a sufficient corrective.

Fourth, after the entry of judgment the court, after an evidentiary hearing, denied a motion for a new trial. The court reporter states under oath in a supplemental transcript that the case was reported by another reporter and that the notes for the post-trial hearing “are illegible and cannot be transcribed.” The appellant, without even asserting that the motion for a new trial had merit, asks that the case be remanded for a reconstruction of the record or a new hearing.

The request must be denied, for the appellant is ignoring established procedure. He has the burden of supplying a transcript of the proceedings below. Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978). That burden includes responsibility for obtaining a transcript or its reconstruction. Graham v. State, 264 Ark. 804, 575 S.W. 2d 149 (1979). The correct procedure to obtain what used to be called a bystander’s bill of exceptions is specified in detail in Appellate Procedure Rule 6 (d) (1979). The appellant has apparently made no effort to pursue his available remedy and is not entitled to different relief.

Fifth and sixth, the appellant argues that the court should not have excused a juror who wavered about his ability to impose life imprisonment for rape and that the court erred in submitting a single offense to the jury when both the information and the State’s proof charged two offenses. We are considering these two points together, because they are both defective in not being supported by an objection in the trial court.

It is apparent at the outset that trial counsel may have deliberately chosen not to object in both instances. That is, counsel may have had a reason for not wanting the juror in question and may understandably have thought it better for his client to face one possible conviction for rape rather than two. We prefer, however, to stress the absence of any objection in the trial court, because arguments for a reversal without a supporting objection are being made with increasing frequency, especially when, as in this case and in appeals briefed by the State Appellate Public Defender, counsel on appeal were not also counsel in the trial court. We think it best to make our position clear.

Some courts, especially the federal courts, have a “plain error” rule, under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Federal Rules of Criminal Procedure, Rule 52 (b); State v. Meiers, 412 S.W. 2d 478 (Mo., 1967). In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Citations to that familiar principle are unnecessary.

Exceptions to the basic requirement of an objection in the trial court are so rare that they may be reviewed quickly. In two cases in which the death penalty was imposed, we did not require an objection to the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. In the earlier case the court failed to require the jury to find the degree of the crime, as required by the statute, so that the jury might have imposed the death penalty for a homicide below first-degree murder. Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451 (1937). In the later case the trial court apparently failed to tell the jury that it had the option of imposing a life sentence. Smith v. State, 205 Ark. 1075, 172 S.W. 2d 248 (1943).

A second exception arises when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978), where defense counsel did not see an erroneous form for the verdict. Also Bush v. State, 261 Ark. 577, 550 S.W. 2d 175 (1977), and Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954), in both of which the judge entered the jury room without the knowledge of defense counsel. (Criminal Procedure Rule 36.21 [1976] embodies the general principle.)

A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. We implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor’s closing argument and allows him to go too far: “Appellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905)]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910)].”

It must be noted that, first, we did not reverse the judgment in Wilson, and second, the quoted statement was taken essentially from the cited Murphy case, where we went on to say explicitly that if the court fails to restrain an improper argument, counsel should make a definite objection and call for a ruling. We have mentioned the Wilson suggestion in two recent cases, but in neither one was the judgment actually reversed because of the trial court’s failure to act on its own motion. Ply v. State, 270 Ark. 554, 606 S.W. 2d 556 (1980); Wilson and Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977). Thus every statement of the original Wilson suggestion has been obiter dictum, because no judgment has been reversed on account of the trial court’s failure to intervene. Such a reversal would necessarily be an extremely rare exception to our basic rule. In the case at bar, obviously the trial judge might not have excused the juror and might have submitted a different verdict form if objections had been made.

A fourth possible exception might arguably be asserted on the basis of Uniform Evidence Rule 103 (d): “Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.” Ark. Stat. Ann. § 28-1001 (Repl. 1979). That statement, however, is negative, not imposing an affirmative duty, and at most applies only to a ruling which admits or excludes evidence. If there is any other exception to our general rule that an objection must be made in the trial court, we have not found it in our review of our case law. Quite obviously the two arguments now under consideration do not fall within the scope of any recognized exception to the rule.

In closing, we mention a position sometimes taken in appellate briefs, in criminal cases, that a possible error should be argued by counsel even in the absence of an objection below, because the matter might be raised in a petition for postconviction relief. The short answer to that suggestion is that if the supposed error actually calls for postconviction relief, the defect is not cured by the presentation of an argument that is certain to be rejected by this court for want of an objection at the trial. Nevertheless, if counsel insist upon consuming their time and that of the court in making such an unsupported argument, the argument should be preceded by a clear statement that no appropriate objection was made below and that the point is being presented despite that omission.

Affirmed.

Mays, J., concurs.