text:
    MONTGOMERY WARD & CO., Inc. v. G.W. ANDERSON and Shirley Anderson
    97-1456
    976 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Wright, Lindsey & Jennings LLP, by: Jay Moody, for appellant.

      Hively & Ketz, by: Vickie A. Warner, for appellees.
   David Newbern, Justice.

This is a tort case in which the issue concerns application of the collateral-source rule. The Trial Court held that the rule required exclusion of evidence of the partial forgiveness of a debt for medical services rendered to the plaintiff. The defendant moved for a new trial pursuant to Ark. R. Civ. P. 59(a)(8), arguing that the ruling was an error of law that prevented it from having a fair trial. The Trial Court denied the motion, and we affirm.

On November 14, 1994, appellee Shirley Anderson was badly injured in a fall while shopping in appellant’s Montgomery Ward store in Little Rock. Montgomery Ward personnel sent her to the hospital at the University of Arkansas for Medical Sciences (“UAMS”) to be treated. Ms. Anderson had surgical and other medical-services expenses at UAMS totaling $24,512.45. Montgomery Ward moved in limine to prohibit Ms. Anderson from presenting the total amount billed by UAMS as proof of her medical expenses and asked that her evidence be limited to the actual amount for which she would be responsible to pay. In response, Ms. Anderson stated that, through her attorney, she had reached an agreement with UAMS that UAMS would discount the bill by fifty per cent. Ms. Anderson asserted that the collateral-source rule would prohibit Montgomery Ward from introducing evidence of the discount.

The Trial Court denied the motion in limine, ruling that the negotiated discount with UAMS was a collateral source, and allowed evidence of the entire amount billed by UAMS. Montgomery Ward urges that the ruling and the denial of the motion for new trial made on the same basis were erroneous.

The decision to grant or deny a new trial under Rule 59(a)(8) is within the discretion of the trial court, and that decision is not reversed absent a manifest abuse of discretion, that is, discretion exercised thoughtlessly and without due consideration. Nazarenko v. CTI Trucking Co., Inc., 313 Ark. 570, 856 S. W.2d 869 (1993). See also Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989). Similarly, a trial court’s ruling on the admission or exclusion of evidence will not be reversed absent abuse of discretion. See Ark. R. Evid. 104(a); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).

We have held that the collateral-source rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages. Parrish v. Newton, 298 Ark. 404, 768 S.W.2d 17 (1989). The issue, then, is whether the forgiveness of a debt for medical services is a collateral source to be sheltered by the rule. There is no Arkansas authority dealing directly with that precise issue, but our cases explaining the policy behind the rule support the Trial Court’s ruling.

The Trial Court relied on Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), and Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994), in holding that the negotiated discount was a collateral source sheltered by the rule. Additionally, the Trial Court stated that the facts of the case did not come within the four exceptions to the collateral-source rule set forth in Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983), and Nazarenko v. CTI Trucking Co., Inc., 313 Ark. 570, 856 S.W.2d 869 (1993), and that the rule therefore applied.

Although those cases do not directly answer the question in this case, they deal with analogous situations and explain the policy behind the collateral-source rule. A trial court must “exclude evidence of payments received by an injured party from sources ‘collateral’ to . . . the wrongdoer, such as private insurance or government benefits . . . .” Bell v. Estate of Bell, 318 Ark. 483, 490, 885 S.W.2d 877, 880 (1994). See also Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985); Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984); Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). Recoveries from collateral sources “do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.” Bell v. Estate of Bell, 318 Ark. at 490, 885 S.W.2d at 880; Green Forest v. Herrington, 287 Ark. at 49, 696 S.W.2d at 718.

In the Bell case, we recognized that commentators had criticized the rule as being “incongruous with the compensatory goal of the tort system” and that some jurisdictions had modified or abrogated the rule. Bell, 318 Ark. at 490, 885 S.W.2d at 880. To refute that criticism, we quoted in the Bell case from F. Harper, et al., The Law of Torts § 25.22, at p. 651 (2d ed. 1986) as follows:

But in these cases the courts measure “compensation” by the total amount of the harm done, even though some of it has been repaired by the collateral source, not by what it would take to make the plaintiff whole. It is “compensation” in a purely Pickwickian sense that only half conceals an emphasis on what defendant should pay rather than on what plaintiff should get.

We also noted that the rule had been extended to cases in other areas of the law, such as unemployment compensation received during a period later held to have resulted from a wrongful discharge under the Teacher Fair Dismissal Act. Green Forest v. Herrington, 287 Ark. at 49, 696 S.W.2d at 718. In a later case, East Texas Motor Freight Lines, Inc. V. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986), a defendant argued that the collateral-source rule was inequitable because it resulted in a windfall to the plaintiff. We disposed of the argument by explaining the policy behind the rule as follows:

Whether she received the money from her employer or from an insurance policy, she, rather than the alleged tortfeasor, is entitled to the benefit of the collateral source, even though in one sense a double recovery occurs. Vermillion v. Peterson, 275 Ark. 37, 630 S.W.2d 30 (1982). The law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an insurance premium or lost sick leave, whereas to the tortfeasor it would be a total windfall.

Id. at 548, 713 S.W.2d at 462. That statement of policy and the cases cited favor including discounted and gratuitous medical services within the shelter of the collateral-source rule. There is no evidence of record showing that Montgomery Ward had anything to do with procuring the discount of Ms. Anderson’s bill by UAMS. The rationale of the rule favors her, just as it would had she been compensated by insurance for which she had arranged.

Montgomery Ward cites Auto Transports, Inc. V. May, 224 Ark. 704, 275 S.W.2d 767 (1955), as authority that the collateral-source rule allows plaintiffs to introduce evidence only of bills that must actually be paid as the result of the injury inflicted by the defendant. In the Auto Transports case, the plaintiff requested damages of $200 for her medical bills. The evidence the plaintiff presented at trial indicated that she was only obligated to pay $28 in medical bills, and thus it was held that she could recover only that amount. The Auto Transports case is not helpful here, as the issue there had to do with the failure of proof by the plaintiff and not application of the collateral-source rule.

We recognize four situations in which the rule does not apply, as explained in Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). They are cases in which a collateral source of recovery may be introduced (1) to rebut the plaintiff s testimony that he or she was compelled by financial necessity to return to work prematurely or to forego additional medical care; (2) to show that the plaintiff had attributed his condition to some other cause, such as sickness; (3) to impeach the plaintiff s testimony that he or she had paid his medical expenses himself; (4) to show that the plaintiff had actually continued to work instead of being out of work, as claimed. Id. at 226, 650 S.W.2d at 570. See also Howard W. Brill, Arkansas Law of Damages § 9-4 (3d. ed 1994). This Court has also allowed evidence of collateral sources when the plaintiff opens the door to his or her financial condition. See Babbitt v. Quik-way Lube & Tire, Inc., 313 Ark. 207, 853 S.W.2d 273 (1993); Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). The Trial Court ruled that none of the exceptions applied to the facts at hand, and an examination of the abstract indicates that ruling was correct. There is no testimony by the plaintiff that arguably invokes any of the exceptions.

The Restatement (Second) of Torts § 920A(2) provides guidance on this issue and explains that the general rule is that “[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” Comment b to that Restatement section explains that, if the plaintiff is responsible for the benefit received, the law allows the plaintiff to keep it. Further, if the benefit was a gift to the plaintiff from a third party or established for the plaintiff by law, the plaintiff should not be deprived of the advantage that it confers. Another way to state the rule is to say that “it is the tortfeasor’s responsibility to compensate for all harm that he [or she] causes, not confined to the net loss that the injured party receives.” Restatement (Second) of Torts § 920A cmt. b. Comment c(3) indicates that gratuities of cash or services are collateral sources that are not subtracted from a plaintiff’s recovery. The comment gives the example of a doctor who does not charge for medical services.

Other authority indicates that a substantial number of jurisdictions addressing the issue have held that the plaintiff may recover the reasonable value of nursing care or services rendered gratuitously for the plaintiff s benefit. See J.A. Connelly, Annotation, Damages for Personal Injury or Death as Including Value of Care and Nursing Gratuitously Rendered, 90 A.L.R.2d 1323 (1963). The primary issue remaining today is how to value the services, see David W. Knotts, Annotation, Valuing Damages in Personal Injury Actions Awards for Gratuitously Rendered Nursing and Medical Care, 49 A.L.R.5th 685 (1997), but that issue is determined in this case by the total medical bill submitted to Ms. Anderson by UAMS.

Montgomery Ward cites cases from Massachusetts, New York, and Illinois for the proposition that gratuitous medical services may not be an item of recovery because the policy behind the collateral-source rule does not apply where the plaintiff has incurred no expense or obligation for the services needed. Peterson v. Lou Bachrodt Chev. Co., 392 N.E.2d 1 (Ill. 1979); Coyne v. Campbell, 183 N.E.2d 891 (N.Y. 1962); Daniels v. Celeste, 21 N.E.2d 1 (Mass. 1939). We are, however, persuaded by cases holding that gratuitous medical services do fall under the collateral-source rule. Oil Country Haulers, Inc. v. Griffin, 668 S.W.2d 903 (Tex.App. 14 Dist. 1984); Texas Power & Light Co. v. Jacobs, 323 S.W.2d 483 (Tex.Civ.App. 1959). See also Joshmer v. Fred Weber Contractors, Inc., 294 S.W.2d 576 (Mo.App. 1956), which held that contributions received by the injured party as a direct result of being injured are not to be taken into consideration in assessing damages.

We choose to adopt the rule that gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal-injury plaintiff. It is the rule recommended by the Restatement (Second) of Torts, and it is consistent with our oft-stated policy of allowing the innocent plaintiff, instead of the tortfeasor defendant, to receive any windfall associated with the cause of action. Accordingly, we hold that the Trial Court did not err by excluding evidence of the UAMS discount as a collateral source.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Brent STANDRIDGE v. Sharon PRIEST
    98-1115
    976 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Sr. Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal is an election case initiated by appellant Brent Standridge after he was denied an attempt to file as a Republican candidate for a judge’s position, District 6, on the court of appeals. We assume jurisdiction of this matter pursuant to Ark. Sup. Ct. R. 1-2(a)(4).

On March 31, 1998, Standridge tendered his required documents and filing fee to qualify him as a candidate for one of the six new court of appeals positions created by Act 15 of 1995, First Extraordinary Session. The Secretary of State, Sharon Priest, refused to accept Standridge’s filing. In doing so, she relied on attorney general’s opinion No. 97-198 which provides that the Governor’s appointees presently holding the six new positions were entitled to continue in office past January 1, 1999, until the General Assembly makes special provisions for the election of the appointees’ successors. In short, Priest rejected Standridge’s efforts to file because no court of appeals position would appear on the November 3, 1998 General Election ballot, since no vacancy would occur in any of the Act 15 positions commencing in January 1999.

Standridge’s contention is that the law provides for the Arkansas voters to elect the new court of appeals judges at the 1998 General Election and that those judges are to take office on January 1, 1999. Consequently, he filed a petition for mandamus and declaratory relief on April 20, 1998, seeking the Pulaski County Circuit Court to declare him as eligible to file for the new District 6 position on the court of appeals and to direct Priest to place his name on the May 19, 1998 Republican Party primary ballot. Standridge further pled that, if he was unopposed or was declared the winner in the primary election, Priest should place his name on the 1998 General Election ballot. On April 29, 1998, Secretary of State Priest responded, denying that Standridge was entitled to the relief he sought, but she also requested that Standridge’s petition be dismissed because it was untimely. The parties entered into a number of written stipulations; however, it was the Attorney General’s office, as representative of Priest, who notified the circuit court that the case could be decided on the briefs and that no hearing was necessary.

'On the day of the 1998 preferential primary election, May 19, 1998, the circuit court entered its order denying Standridge’s petition. The trial court held Standridge’s petition was untimely, but it added that, on the merits of the case, the present six appointees currently serving on the court of appeals would hold over in office in 1999 until the General Assembly made provisions for the election of their successors. In sum, the trial court ruled that no court of appeals positions were available for which candidates could be elected. We affirm the trial court’s decision that Standridge’s request for relief was untimely.

In State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), this court discussed in detail the proper legal proceeding to file to determine the eligibility of a candidate and to decide whether his or her name should be placed on or removed from a ballot. There, the court sanctioned the use of mandamus when seeking the appropriate election officials to remove a candidate’s name from the ballot or requiring them to place a candidate’s name on the ballot. Craighead County, 300 Ark. at 412, 779 S.W.2d at 172. In upholding the use of mandamus in these circumstances, the court concluded that because petitions for writs of mandamus must be heard within seven days, such a remedy provides for prompt consideration of issues, which is often important in election cases. 300 Ark. at 412, 779 S.W.2d at 172; see also Ark. R. Civ. P. 78(d), Court’s Notes, 1995 Amendment. However, because mandamus does not provide the means for the court to make a declaration concerning a candidate’s eligibility, we directed that the person seeking mandamus in these matters must also include a request for declaratory relief. The Craighead County court further held that, even though the mandamus remedy is combined with a request for declaratory relief, the action will still be considered essentially one of mandamus and must be heard within seven days. Id.

In the present case, Standridge filed an appropriate petition for mandamus and declaratory relief, and while his petition requested expedited consideration of his case under Ark. R. Civ. P. 78(d), he failed to demand an expedited hearing or decision prior to the May 19, 1998 preferential primary election. Standridge apparently believed that, since he was the only individual to file for one of the new court of appeals positions, nothing else was required of him. Such is not the case. First, we note that, under Ark. Code Ann. § 7-7-203(d) (Supp. 1997), the Republican State Committee’s chairman and secretary had the duty to certify the Committee’s ballot and names of all candidates who timely and properly filed for office to the various county committees and county boards of election commissioners. Those state party officials were required to make the certification no later than forty days before the preferential primary election. Ark. Code Ann. § 7-7-203 (d). In this case, the State Committee was required to certify its qualified candidates on or before April 9, 1998. Thus, Standridge had the burden to show he was a qualified candidate, yet he failed to obtain the circuit court’s prompt ruling on this question. If he had demanded a timely hearing and obtained an unfavorable outcome, Standridge then could have appealed the adverse ruling to this court and sought accelerated consideration of his appeal under Rule 6-1 of the Rules of the Supreme Court. Because Standridge failed to seek a timely resolution and enforcement of Arkansas’s applicable election provisions prior to the 1998 primary elections, the circuit court correctly denied his petition for mandamus and declaratory relief. See Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994).

For the foregoing reasons, we affirm the lower court’s ruling that Standridge’s petition was filed untimely.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I join in the majority opinion and agree that the appellant has failed to follow the necessary procedures that would allow us to order his placement on the ballot.

But, in addition, it is particularly anomalous for the appellant to argue that an election must be held when the General Assembly has failed to fix the Court of Appeals district for that election. Surely, having a district is an essential prerequisite. In reading Ark. Code Ann. § 16-12-101 (Supp. 1997), the General Assembly specifies Court of Appeals elections for the six new judges in the 1998 general election and creates a Court of Appeals Apportionment Commission “to assist the General Assembly with the establishment” of the districts for those judges. Ark. Code Ann. § 16-12-101(e)(2) (Supp. 1997). To date, those districts have not been established by law. How can there be an election without knowing who the voters will be?

The appellant speculates that perhaps the six new judges could run in the existing six Court of Appeals districts or run at large. But to implement the Court of Appeals district would be pure legislation on our part. Such matters are for the General Assembly to determine — not this court.

I would affirm the trial court for the reasons stated in the majority opinion, but also for the additional reason that an election without a fixed Court of Appeals district is an impossibility.

       Arkansas law in relevant part provides that no person’s name shall be printed upon the ballot as a candidate for any public office in this State at any election unless the person is qualified and eligible at the time of filing as a candidate for the office to hold the public office for which he is a candidate .... Ark. Code Ann. § 7-5-207(b) (Supp. 1997).

       While the names of unopposed candidates are omitted from the primary ballot, such a ballot omission occurs only when one candidate qualifies for a particular office or position. See Ark. Code Ann. § 7-7-304(c) (Supp. 1997). (Emphasis added.) Standridge may have mistakenly believed that since he was the only person to file for the position, no ballot issue existed concerning the primary election ballot.

       We note that no one argues whether the State Committee chairman and secretary or the present Act 15 appointed judges should have been made parties to this litigation. Therefore, we need not consider these issues except to mention that part of the Craighead County decision indicates that, in election cases involving mandamus and declaratory actions, the court must see that all necessary parties are joined under Ark. R. Civ. P. 19.


author: Donald L. Corbin, Justice.

text:
    Frank QUINN (Deceased) v. WEBB WHEEL PRODUCTS
    97-1550
    976 S.W.2d 386
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Tolley & Brooks, P.A., by: Jay N. Tolley, for appellant.

      Michael H. Mashburn, for appellee.

      Winston Bryant, Att’y Gen., by: Leigh Anne Yeargan, Ass’t Att’y Gen., for amicus curiae Arkansas Workers’ Compensation Commission.
   Donald L. Corbin, Justice.

This case involves a constitutional challenge to the composition of the Workers’ Compensation Commission as established in Ark. Code Ann. § 11-9-201 (Repl. 1996). The Commission ruled that section 11-9-201 was constitutional and that the composition of the Commission does not deny claimants their rights to due process of the law. Appellant Frank Quinn (Deceased) appealed the Commission’s ruling to the Arkansas Court of Appeals, and that court affirmed the Commission’s ruling. See Quinn v. Webb Wheel Prods., 59 Ark. App. 272, 957 S.W.2d 187 (1997) (Quinn II). We granted Appellant’s petition for review of that decision, pursuant to Ark. Sup. Ct. R. 1-2(e), and we affirm.

Appellant sustained a compensable back injury on November 23, 1991, and was awarded permanent partial disability benefits by the administrative law judge (ALJ) in an order dated January 7, 1993. That order was affirmed by the Commission on June 22, 1993. Pursuant to Appellant’s request that the remaining portion of the benefits be paid in a lump sum, a hearing was held on January 3, 1994. In an opinion dated January 13, 1994, the ALJ found that it was in Appellant’s best interest to receive a lump sum. After reviewing the medical evidence relating to Appellant’s diagnosis of terminal cancer, unrelated to the compensable injury, the ALJ determined that Appellant was unlikely to survive more than sixty weeks. Accordingly, the ALJ made a lump-sum award of sixty weeks of benefits discounted at ten percent compounded annually. Less than one month later, on February 1, 1994, Appellant died. Appellee then appealed the award of a lump-sum payment to the Commission. The Commission remanded the case to the ALJ and instructed him to conduct a hearing to consider new evidence, the fact that Appellant had died, in assessing the amount and propriety of the lump-sum payment. On remand, the ALJ found that Appellant’s right to permanent disability benefits previously awarded terminated with his death on February 1, 1994. He also found that Appellant was not entitled to a lump-sum payment because he had been paid weekly and the payments were current at the time of his death. The Commission affirmed and adopted the ALJ’s opinion.

Appellant appealed the Commission’s decision to the court of appeals, arguing two points: (1) the Commission erred in remanding the case to the ALJ for consideration of Appellant’s death as new evidence, and (2) the composition of the Commission violated his rights to due process of law. The court of appeals affirmed on the first point, but refused to address the second point on the ground that the record did not show that Appellant had ever obtained a ruling on the constitutionality of the statute. See Quinn v. Webb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996) (Quinn I). Appellant subsequently filed a petition for rehearing on the basis that the holding in Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996), that a party must obtain a ruling from the Commission on constitutional issues to preserve them for appeal, was prospective only. The court of appeals agreed and remanded the constitutional issue to the Commission for consideration. See Quinn v. Webb Wheel, 52 Ark. App. 208, 213-A, 923 S.W.2d 287 (1996) (supplemental opinion on granting of rehearing).

On remand, the Commission ruled that its statutory composition provided for in section 11-9-201 does not deny claimants due process of law. The court of appeals affirmed the Commission’s ruling in Quinn II, 59 Ark. App. 272, 957 S.W.2d 187, holding that the findings made by the Commission revealed nothing that would indicate any bias in the Commission’s decisions. We granted Appellant’s petition for review on January 29, 1998. When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).

Appellant argues that section 11-9-201, the statute creating the Workers’ Compensation Commission, is unconstitutional because it requires two of the three commissioners to have specific experience in workers’ compensation matters: one commissioner must have experience representing employees and the other must have experience representing employers. Appellant argues that commissioners perform quasi-judicial functions, and that it is therefore a violation of principles of due process that they are required to be classed as a representative of an identifiable group. Appellant asks this court to abolish the Commission on the basis that two of the three members are not impartial, fair, and independent, because they are classed as representatives of employees and employers. Appellant concedes, however, that there is no evidence of actual bias on the part of the individual commissioners. He also concedes that there is no evidence that he was actually prejudiced by the composition of the Commission who heard his claim. Rather, he contends only that the commissioners’ bias is both perceived and inherent in the selection procedure established by section 11-9-201.

Appellee contends that the decision by the court of appeals in Quinn I, 208 Ark. 209, 915 S.W.2d 740, which affirmed the Commission’s ruling that Appellant was not entitled to a lump-sum payment of benefits, completely resolved the issues that related to Appellant individually. Appellee contends that because no evidence was ever introduced below showing that the composition of the Commission actually prejudiced Appellant as an individual, the resolution of the freestanding constitutional issue is unwarranted and unnecessary. We agree that the outcome of the litigation below has rendered this issue moot.

A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Pennington v. Pennington, 315 Ark. 479, 868 S.W.2d 460 (1994). There are exceptions to the mootness doctrine, none of which apply here, for cases involving the public interest and the prevention of future litigation and cases that are capable of repetition yet evading review, as the justiciable controversy will necessarily expire or terminate prior to adjudication. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). Correspondingly, this court has long held that it will not pass upon constitutional questions if the litigation can be determined without doing so. Osage Oil & Transp., Inc. v. City of Fayetteville, 260 Ark. 448, 541 S.W.2d 922 (1976) (citing Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968)). Because the litigation in this case has been resolved as it pertained to the named parties, and because neither party accordingly stands to lose or gain financially based upon the outcome of this appeal, see Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991), we decline to address the merits of Appellant’s moot constitutional argument.

Affirmed.

       Although that case actually dealt with the related issue of a litigant’s standing, we think the reasoning is also applicable to the facts of the present case.


author: Per Curiam.

text:
    Bobby Joe JONES v. STATE of Arkansas
    CR 98-924
    976 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Marsha Basinger, for appellant.
    No response.
   Per Curiam.

Appellant Bobby Joe Jones filed a motion for belated appeal from the order denying his motion for postconviction relief pursuant to A.R.Cr.P. Rule 37. We previously denied the motion because Appellant’s attorney, Marsha Basinger, did not admit fault in fading to timely file the notice appeal. See Jones v. State, 334 Ark. 236, 973 S.W.2d 483 (1998) (per curiam). We indicated, however, that we would grant the motion if Appellant’s attorney filed within thirty days a motion and affidavit accepting full responsibility for not timely filing the notice of appeal. Appellant’s attorney has assumed full responsibility for the error in an amended motion filed October 5, 1998.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 332 Ark. 78, 959 S.W.2d 54 (1998) (per curiam); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this per curiam will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


author: Per Curiam. Robert L. Brown, Justice,

text:
    Jimmy Lee PHILLIPS v. STATE of Arkansas
    CR 97-940
    976 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Ass’t Att’y Gen., for appellee.
   Per Curiam.

In 1994, judgment was entered reflecting that Jimmy Lee Phillips had pleaded guilty to three felony offenses and had been sentenced to probation. In May 1996, judgment was entered reflecting that the probation had been revoked and that Phillips had been sentenced as a habitual offender to a term of eighty-four months’ imprisonment for each of the three offenses to be served consecutively. The Court of Appeals affirmed. Phillips v. State, CACR 96-986 (April 16, 1997). The mandate was issued to the circuit clerk on May 6, 1997.

Following the direct appeal, Phillips filed a petition for post-conviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied the petition as untimely because its filing, which occurred on May 5, 1997, preceded the issuance of the mandate by one day. Phillips filed another petition on June 27, 1997. The Circuit Court, finding that Phillips had filed a notice of appeal from the denial of the first petition, concluded that the second petition was also untimely.

It appears that the Circuit Court erred in denying Phillips’s petition as untimely. Phillips filed the petition within sixty days of the appellate mandate, and we recognized the petition’s timeliness when we granted Phillips’s motion to file an amended abstract. Phillips v. State, CR97-940 (February 19, 1998).

In this appeal, however, Phillips does not assign error to the Circuit Court’s conclusion that his petition was untimely. Rather, he contends that his sentence is illegal because it violates the ex post facto and double jeopardy clauses of the Arkansas Constitution and the United States Constitution.

Because the timeliness of Phillips’s petition was the only issue the Circuit Court considered in its opinion, we cannot reach the merits of the arguments that Phillips raises on appeal. Accordingly, we must affirm.

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. This is a case where the trial judge obviously erred in finding that appellant’s Rule 37 petition was untimely, as the majority’s per curiam opinion acknowledges. Because of the error, the trial court found that it lacked subject-matter jurisdiction. The appellant who is pro se has appealed on the merits of his petition and has not raised the jurisdictional question. The majority declines to raise subject-matter jurisdiction on its own, and, thus, an error is perpetuated and the merits of this matter never reached.

We have been assiduous in raising subject-matter jurisdiction on our own when we observe that the trial court- did not have it. See, e.g., Vanderpool v. Fidelity & Cas. & Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). Here, the trial court found it was without jurisdiction, and the trial court was wrong. I would correct the error, hold that the trial court did have subject-matter jurisdiction, and remand this case for a decision on the merits. The fact that the appellant is pro se should not militate against a remand in light of the fact that subject-matter jurisdiction is involved.

Imber, J., joins.


text:
    Donnie WHITNEY v. STATE of Arkansas
    CR 98-922
    976 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered October 22, 1998

      Marsha Basinger, for appellant.
    No response.
   Per Curiam.

Appellant Donnie Whitney filed a motion for belated appeal from the order denying his motion for postconviction relief pursuant to A.R.Cr.P. Rule 37. We previously denied the motion because Appellant’s attorney, Marsha Basinger, did not admit fault in failing to timely file the notice of appeal. See Whitney v. State, 334 Ark. 241, 973 S.W.2d 481 (1998) (per curiam). We indicated, however, that we would grant the motion if Appellant’s attorney filed within thirty days a motion and affidavit accepting full responsibility for not timely filing the notice of appeal. Appellant’s attorney has assumed full responsibility for the error in an amended motion filed on October 5, 1998.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 332 Ark. 78, 959 S.W.2d 54 (1998) (per curiam); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this per curiam will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


author: David Newbern, Justice.

text:
    ARKANSAS COUNTY FARM BUREAU v. David T. McKINNEY
    97-1192
    976 S.W.2d 945
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      Laser, Wilson, Bufford & Watts, P.A., by: Sam Laser and Stephanie G. Holder, for appellants.

      Russell D. Berry; and Bridewell and Bridewell, by; Robert G. Bridewell, for appellee.
   David Newbern, Justice.

Appellee David T. McKinney was employed as the “agency manager” of Arkansas County Farm Bureau (“ACFB”), an unincorporated association. He was dismissed from that position, and he brought an action against ACFB as well as three Farm Bureau Insurance corporations with whom he had contracts providing for his employment as the manager of ACFB. Mr. McKinney’s complaint against ACFB named the following directors of the association as a class representing all the directors and members of the association; Jerry Burkett, Howard Hammons, David Hillman, Walter Hillman, Webster Hillman, Daverne Strickland, and Donnie Stroh. These directors have brought an interlocutory appeal from an order providing for notice to all members of the ACFB and stating a deadline for their responses. The claims against the other defendants are not at issue in this appeal.

The named directors and ACFB argue on appeal that it was improper for the Trial Court to certify a class and that the notice prescribed does not satisfy the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Mr. McKinney asserts that we lack jurisdiction of the appeal. He contends that there was no formal order of certification and that Ark. R. App. P.—Civ. 2(a)9, which permits an appeal from “[a]n order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure,” therefore does not apply. We hold that the order amounted to an attempted certification pursuant to Ark. R. Civ. P. 23 and is thus appealable. We further hold, however, that the action against ACFB and the named directors falls within the purview of Ark. R. Civ. P. 23.2 and not Rule 23; thus, there was no need for certification or notice to all of the ACFB members. We affirm the refusal to dismiss the action, reverse the purported certification, and remand the case for further proceedings consistent with this opinion.

Farm Bureau Mutual Insurance Company of Arkansas, Inc., Southern Farm Bureau Casualty Insurance Company, and Southern Farm Bureau Life Insurance Company each contracted with Mr. McKinney in 1988 to manage ACFB. The approval of the ACFB directors was apparently important to Mr. McKinney’s continued employment. A majority of the directors voted in 1993 to withdraw the approval, and Mr. McKinney was informed that his employment would terminate January 15, 1994.

Mr. McKinney’s complaint against ACFB, filed in June 1994, asserted various tort claims including defamation, interference with contract, and conspiracy to defame him. He claimed that the ACFB and the directors had falsely accused him of misappropriation of funds belonging to ACFB and had deprived him of $6,000 to which he was entitled. He sought $5,006,000 in compensatory damages and $5,000,000 in exemplary damages.

The complaint named the above-mentioned directors as:

some of the directors of Arkansas County Farm Bureau and [they] are named as defendants in their official capacity as such directors, not individually, and as a class representing Arkansas County Farm Bureau and all of its other directors and members. The defendant directors would fairly and adequately represent and protect the interest of the defendant, Arkansas County Farm Bureau, an unincorporated association, and that of its members. The defendant directors are known to be persons that are very actively involved with the association.

The complaint does not cite Rule 23.2, but some of the above language is identical to that found in the rule.

A trial was scheduled for February 19, 1997. On February 14, 1997, ACFB and the directors moved to dismiss on the ground that Mr. McKinney was attempting to maintain the action pursuant to Rule 23.2 but had failed to have the members of ACFB certified as a class. ACFB and the directors complained that there had been no ruling on the adequacy of the representation of the named directors and that no notice had been given to the ACFB members. By letter, counsel for Mr. McKinney conceded that “it will be necessary to go through this [certification] process” and that, “as a result, the trial will have to be continued.”

Mr. McKinney filed a response to the motion to dismiss, acknowledging that the claim was made pursuant to Rule 23.2 against ACFB as an unincorporated association. The response suggested, however, that ACFB, as well as “all of its members,” had properly “been made parties hereto and due process has been afforded.” He stated that “any further certification or notice is discretionary under Rule 23.2 and not mandated.” Mr. McKinney also contended that ACFB and the directors had waived their objections by not making them in their initial response to the complaint.

In a reply to the response, ACFB and the directors denied any waiver and asserted the necessity of a hearing to assure compliance with Rule 23(a) and (c). They sought dismissal for Mr. McKinney’s failure to comply with the certification procedures. In the alternative, they sought a hearing to address the adequacy of representation of the named directors. ACFB and the directors also filed a formal “objection” to class certification. They complained that the members of ACFB were being sued for tortious misconduct of which they had no knowledge, that the directors had internal conflicts, and that various requirements of Rule 23 had not been satisfied.

A hearing was held in which counsel for ACFB and the directors stressed the need for individual notice to each class member because each member might be “potentially liable.” Counsel then stated, however, that she knew of no law to the effect that “mere membership in an unincorporated association would subject a person to individual liability for any intentional tort of its directors.”

The Trial Court’s order denied the motion to dismiss and overruled the objections to the “class certification.” It directed

that notice be given to each member of Arkansas County Farm Bureau as of January 15, 1994, by ordinary mail addressed to their last known address such notice to be in the form attached hereto; and, in order to provide such notice the representative defendants shall provide to the plaintiff a list of the names and last known addresses of each member.

The notice to be provided to the members was to the effect that a member of ACFB “may be individually liable for any amount awarded to the plaintiff” against ACFB.

1. Appealability

Obviously, there is no final order in this case. The only possibly applicable exception to the rule that only final orders may be appealed appears in Ark. R. App. P.—Civ. 2(a)(9), which provides that an appeal may be taken from “[a]n order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.”

We have here no order granting or denying a motion to certify a class in so many words. We have, rather, an order that was the result of the overruling of an objection to the certification of a class.

Our Rules 23 and 23.2 are patterned upon the correlative federal rules. We are aware of some federal cases that suggest that it is appropriate to “certify” a class in accordance with Fed. R. Civ. P. 23.2. See, e.g., Resolution Trust Corp. v. Deloitte & Touche, 822 F. Supp. 1512 (D. Colo. 1993); Merkey v. Board of Regents of State of Florida, 344 F. Supp. 1296 (N.D. Fla. 1972); Management Television Systems, Inc. v. National Football League, 52 F.R.D. 162 (E.D. Pa. 1971). That is not our holding here. The problems in this case have been created by the confiision of the parties and the Trial Court of Ark. R. Civ. P. 23 and 23.2. Rule 23.2 is not a “subset” of Rule 23, as is argued by ACFB and the directors. Rule 23.2 is a completely separate rule that incorporates the provisions of Rule 23 only to the extent provided in Rule 23.2.

In view of our holding, discussed below, that there is no need for the certification of a class in an action brought pursuant to Rule 23.2, and in view of the apparent attempt on the part of the parties and the Trial Court to provide a notice pursuant to Rule 23, we hold that the order is appealable under Ark. R. App. P.—Civ. 2(a)(9). This holding is based upon the unique facts of this case, and our assumption is that, hereafter, there will be no Rule 23-style attempts to “certify a class” or prescribe notice in cases brought pursuant to Rule 23.2.

2. Waiver

Mr. McKinney suggests the arguments raised by ACFB and the directors are the type of “defenses” that, under Ark. R. Civ. P. 12, had to be asserted at the pleading stage or else waived, i.e., lack of personal jurisdiction resulting from lack of proper service of process. ACFB and the directors respond that Mr. McKinney’s complaint was a proper Rule 23.2 complaint and that they had no reason to raise issues of notice or certification in response to it.

We agree with ACFB and the directors that the arguments they are making, primarily that it is too late to certify a class, are not ones required to be made by Rule 12 in an initial responsive pleading. We note that the complaint of Mr. McKinney was indeed a proper Rule 23.2 complaint, and it probably would have remained so had ACFB and the directors not raised Rule 23 issues of certification and notice and thereby improperly confused the provisions of the two rules.

3. Certification and notice

ACFB and the directors assert that the Trial Court’s order should be reversed because it improperly “certified” the class after too long a delay. They also argue that the Trial Court abused its discretion in certifying the class because certain elements of Ark. R. Civ. P. 23 have not been satisfied. Finally, ACFB and the directors assert that the notice prescribed by the Trial Court violates the ACFB members’ right to due process of law.

Rule 23.2 does not require a party to have a class “certified” in order to proceed under that rule, as the text reveals:

Rule 23.2. ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d)] and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e) [emphasis added].

The rule thus speaks in terms of a Rule 23.2 action being “maintained” or “conducted,” but there is no requirement for a “certification” of a “class,” let alone a “timely” certification. By way of comparison, Rule 23 suggests that the certification of the class should occur “as soon as practicable.” As a majority of courts have held, however, the provisions of Fed. R. Civ. P. 23 do not apply to actions brought under Fed. R. Civ. P. 23.2, except to the extent that Rule 23.2 itself incorporates by reference the provisions of Rule 23(d) and (e). See, e.g., Curley v. Brignoli, Curley & Roberts Associates, 915 F.2d 81 (2nd Cir. 1990), cert. denied, 499 U.S. 955 (1991); Hartford Accident & Indem. Co. v. Dresser Indus., Inc., No. 90-C0778, 1994 U.S. Dist. LEXIS 1763 (N.D. Ill. Feb. 18, 1994). Cf. Stoltz v. United Broth. of Carpenters and Joiners, 620 F. Supp. 396 (D.C. Nev. 1985).

The Advisory Committee Note to Fed. R. Civ. P. 23.2, 39 F.R.D. 69 108-109 states:

Although an action by or against representatives of the membership of an unincorporated association has often been viewed as a class action, the real or main purpose of this characterization has been to give “entity treatment” to the association when for formal reasons it cannot sue or be sued as a jural person under Rule 17(b). Rule 23.2 deals separately with these actions, referring where appropriate to Rule 23 [emphasis added].

See also James W. Moore, Moore’s Federal Practice § 23.2.06, at pp. 23.2-17 to 23.2-18 (3rd ed. 1998); 7C Charles Alan Wright, Arthur R. Miller, & May Kay Kane, Federal Practice and Procedure: Civil 2d § 1861, at pp. 220-22 (2nd ed. 1986).

We follow the majority rule on this point. While, as noted above, a trial court may, in the words of Rule 23.2, “make appropriate orders corresponding with those described in Rule 23(d), and the procedures for dismissal or compromise of the action shall correspond with that provided in Rule 23(e),” Rule 23 is otherwise inapplicable in an action brought pursuant to Rule 23.2. Thus, in a Rule 23.2 case, there is no class that must be formally certified as there is in a Rule 23 case. The plaintiff simply names representatives of an association for the purpose of haling the association into court, stating, as was done in this case, why the named representatives are persons who will, in the words of Rule 23.2, “adequately protect the interests of the association and its members. “ The court may then hold a hearing that may include examination of the adequacy of the named representatives, but that falls far short of a ’’certification" hearing such as those held pursuant to Rule 23.

We understand the concern of ACFB and the directors about the suggestion that individual members may be held liable to satisfy a potential judgment against the ACFB, even though we suspect that suggestion was induced by their unnecessary and inappropriate insistence on a class certification and notice. Individual liability of the members is, however, not in prospect in this action. Thus, it is not necessary that the individual members of the ACFB receive any notice in this action brought under Rule 23.2.

In Massey v. Rogers, 232 Ark. 110, 334 S.W.2d 664 (1960), we dealt with an action against an unincorporated association brought pursuant to our very broad class-action statute, Ark. Stat. Ann. § 27-809 (Repl. 1977), which has now been superseded by Ark. R. Civ. P. 23, 23.1, and 23.2. For the Court, Justice George Rose Smith wrote that a suit could be maintained against an unincorporated burial association and that “a representative proceeding is the usual and proper method of bringing suit against such an organization. The judgment will determine the question of the association’s liability and, if the plaintiff recovers, will entide the plaintiff to proceed against the common property of the association.” 232 Ark. at 111, 334 S.W.2d at 665 (emphasis added)(citations omitted).

The plaintiff in the Massey case had also asserted in the complaint that he should receive a personal judgment against the association’s individual members if he were unable to collect the judgment from the association’s property. We said that the Trial Court had been correct to hold

that the personal liability of the various members is not a matter to be determined in a class proceeding. Whether the association owes $3,225.00 for services rendered by the funeral home is, in the language of the statute, a question of common interest to all members, Ark. Stats. § 27-809; but the liability of any particular member is a question peculiar to him, upon which he is entitled to notice and an opportunity to present defenses. See Sturges, Unincorporated Associations as Parties to Actions, 33 Yale L. Jour. 383, where it is said: “Upon return of execution against the common property unsatisfied, supplementary proceedings . . . should be available against any or all of the sui juris members subject to process for the deficiency. Herein will the member have his day in court as to his individual responsibility.”

232 Ark. at 111-12, 334 S.W.2d at 665-66.

Later, in Thomas v. Dean, 245 Ark. 446, 450, 432 S.W.2d 771, 774 (1968), after discussing cases such as Massey v. Rogers, supra, involving suits against associations, we said in an obiter dictum that “a class action as such does not impose personal liability on any individual member of the unincorporated association, but only reaches common assets.”

One of the Reporter’s Notes to Ark. R. Civ. P. 23.2 provides, citing Massey v. Rogers, supra, that the rule “does not affect the principle that individual members of an association are not Hable for damages.”

Although actions against unincorporated associations are now governed by Rule 23.2, the holding of the Massey case continues to apply. If there are “supplementary proceedings” against individual members to be had after the Rule 23.2 action is concluded, whether in the form of a separate, Rule 23 class action against the members or individual actions against them, we assume that questions such as proper notice and timeliness of the action or actions under the appropriate statute or statutes of limitations will arise and be litigated. They are not at issue now.

4. Remand

Upon remand, ACFB and the directors may raise with the Trial Court any issues they see fit with respect to assuring, in the words of Rule 23.2, “that the representative parties will fairly and adequately protect the interests of the association and its members.” They may seek any other orders appropriate under the rule with the understanding that the action at hand is against the unincorporated association and not its members as individuals.

Affirmed in part; reversed in part; and remanded for proceedings consistent with this opinion.

Glaze, J., Brown, J., Imber, J., and Thornton, J., not participating.

Special Justices Steven B. Davis, David A. Knight, Michael Rainwater, and James B. Sharp join in this opinion.


text:
    Randy CORBIT and Norman Corbit v. STATE of Arkansas
    98-212
    976 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      Etoch Law Firm, by: Louis A. Etoch, for appellants.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Ass’t Att’y Gen., for appellee.
   David Newbern, Justice.

This is a property-forfeiture case. Although they may result in penal sanctions, property-forfeiture cases are civil in nature. State v. One 1993 Toyota Camry, 333 Ark. 503, 969 S.W.2d 663 (1998). Police authorities seized $1810.00, a 1987 GMC truck, various firearms, and other items following the arrest of Randy Corbit for possession and sale of marijuana. Randy Corbit and his father, Norman Corbit, have appealed from an order forfeiting $1710.00 of the cash seized, allowing a substitution of the firearms and other items for the truck, and making the forfeiture of the truck or the substituted assets dependent upon a conviction in the drug possession and sale case. We must dismiss the appeal due to the lack of a final order.

Michael Steele, a narcotics investigator with the First and Third Judicial Districts’ Drug Task Force, along with a confidential informant, met with Christopher Jarrett and Edward Knapp and arranged for Mr. Jarrett and Mr. Knapp to purchase marijuana at New Place Store in Phillips County where Randy Corbit was employed.

Mr. Steele gave $100.00 in Drug Task Force “buy money” to Mr. Knapp. Mr. Jarrett and Mr. Knapp were to meet Investigator Steele at a specified location after buying the marijuana. According to Mr. Jarrett, when the pair arrived at the store, Randy Cor-bit told him that he did not have the marijuana and that he would have to go get it. According to Mr. Jarrett, Randy Corbit told him to come back in about an hour.

After an hour passed, Mr. Jarrett and Mr. Knapp returned to the store at which time Randy Corbit handed Mr. Jarrett the marijuana in exchange for the $100.00. Mr. Jarrett and Mr. Knapp then met Investigator Steele and gave him a plástic bag containing twenty-three grams of marijuana. At the forfeiture proceeding, Mr. Jarrett stated that upon returning to the store he noticed that the truck that had been outside the store had been moved.

At some distance from the store, officers observed Mr. Jarrett and Mr. Knapp enter the store and leave a short time later. They then observed Randy Corbit leave the store in the truck and then return about twenty minutes later. They also observed him obtain something from the bed of the truck before going back into the store. They then observed Mr. Jarrett and Mr. Knapp return to the store and go inside.

Armed with a search warrant, Drug Task Force officers approached the store, arrested Randy Corbit, and seized a number of items including $1,810.00 found in Mr. Corbit’s pocket, $100.00 of which was the marked “buy money.” Lois Martin, the owner of the store, testified that Randy Corbit kept the store’s money in his pocket to protect it from robbers. She testified that Randy Corbit told her that $1,500.00 of the cash in his pocket belonged to the store. She also said she knew that the store was short money on the day of the seizure, thus suggesting that money in Randy Corbit’s pocket belonged to the store.

The Drug Task Force also seized a number of firearms from a trailer located behind the store as well as the 1987 GMC truck parked outside the store. Norman Corbit testified that the truck belonged to him, rather than to his son, and that he had loaned it to Randy Corbit. He also stated that any use of the truck to transport any controlled substance was done without his permission.

In addition to arguing that the truck was not subject to forfeiture, a posthearing brief filed by Norman Corbit and Randy Corbit contended that $1710.00 of the $1810.00 seized was not subject to forfeiture because it belonged to Lois Martin. Ms. Martin is not a party to this appeal. The Corbits also argued that the truck was not subject to forfeiture.

The Trial Court ordered the $1710.00 to be forfeited. It found that the guns and other items were subject to forfeiture as substitute assets in the place of the truck. Although the forfeiture statute, Ark. Code Ann. § 5-64-505 (Repl. 1997), does not specifically require a conviction as a predicate for forfeiture of items used in drug transactions, the Trial Court ordered the State to restrain the substitute assets, and “in the event the defendant is convicted,” the assets would be ordered forfeited. It is that contingent aspect of the order that robs it of finality and requires dismissal of the appeal. The order meets none of the finality criteria stated in Ark. R. App. P.—Civ. 2(a). Nor has there been any attempt to comply with Ark. R. Civ. P. 54(b), which allows entry of a final judgment as to one or more parties or claims but fewer than all of them and permits an appeal upon a determination by the Trial Court that there is no just reason for delay. Rule 54(b) provides, in part, that

In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

We have said many times that the failure to comply with Rule 54(b) and to adjudicate all claims against all parties is jurisdictional and renders the matter not final for purposes of appeal. See, e.g., Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998). “As a general rule a conditional judgment, order, or decree, the finality of which depends upon certain contingencies which may or may not occur, is not final for the purposes of appeal.” Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987).

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    James Randall EFURD v. STATE of Arkansas
    CR 97-1208
    976 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      James R. Marschewski, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant James Randall Efurd and his wife Alisa were charged with first-degree murder for causing the death of their nine-month-old infant daughter, Ollie. Alisa’s case was severed, and this appeal involves the State’s case against Randall. Randall was seventeen years old at the time of the crime, and was tried and found guilty by a jury which then sentenced him to life imprisonment. He raises six points for reversal. Before addressing those points, we first review the facts surrounding Ollie’s death and leading to Randall’s arrest and conviction.

On Thursday, February 8, 1996, the Efurds and two friends, Heather Brasuell and Justin Keeney, participated in taking drugs while in the presence of Ollie. Both Brasuell and Keeney related they never saw the Efurds hit Ollie, but did see bruises on her head and a burn on her stomach. They said that both Randall and Alisa blew marijuana smoke in Ollie’s face when she cried. About two hours after Brasuell and Keeney left the Efurd’s apartment, the Efurds took Ollie to St. Edward’s Hospital emergency room because Ollie was experiencing nausea, vomiting, and fever. The attending physician, Dr. James Word, observed various bruises around the head, so he had a skull x-ray taken. The x-ray showed Ollie’s skull was fractured, so Dr. Word ordered a CAT scan of her brain, which indicated subdural hematoma. Alisa told hospital personnel that Olhe had fallen in her crib. Dr. Word reported the injuries to the police, and told the officers that Alisa’s story was not consistent with the bruises he saw on the child.

Ft. Smith Police Officer Tony Bowers responded to the report first, and he called Barling Police Officer Tracy Powell and asked Powell to come to St. Edward’s to investigate a possible child-abuse case. When Powell arrived at the hospital, a nurse informed him that the medical personnel suspected child abuse. A doctor told Powell he felt it was definitely child abuse, so Powell reported the matter to his supervisor, Lt. James Hamilton. When Powell told Hamilton the Efurds claimed the baby fell over in the baby bed and hit her head, Hamilton asked Powell “to get some pictures of the baby and the baby bed.” The Efurds agreed to go to city hall to give a written statement, but Randall first agreed to go with Powell to the Efurds’ apartment so Powell could view and photograph the bed. At about 3:00 a.m. on February 9, 1996, Ollie was air lifted to Arkansas Children’s Hospital, and the Efurds separated — Powell and Randall went to the Efurds’ apartment and Alisa rode with Hamilton to city hall. Hamilton said the reason Randall went in Powell’s car to the apartment was because Randall had no car. Randall was never informed that he was not required to accompany Powell. Powell later testified at a pretrial hearing that, at this point in their investigation, the Efurds were not suspects and were free to leave at any time.

Randall permitted Powell to enter the Efurds’ apartment, and upon entry, Powell quickly observed drugs and drug paraphernalia. Randall then gave his consent for Powell to search the premises further. Powell took pictures of the baby bed, gathered the drugs and drug paraphernalia, and arrested Randall for possession of drugs and drug paraphernalia. Randall was then taken to city hall at about 4:00 a.m. on February 9. After Officer Powell told Lt. Hamilton about the drugs and arrest of Randall, Hamilton read Randall his rights and obtained his first taped statement. Randall gave several other statements between February 9th and 12th, which included a statement indicating that Ollie’s injuries had been caused in an incident involving the pushing of the baby’s “walker” so that her head bumped against a metal door, causing the skull fracture.

Randall’s first argument is that, because the officers violated Ark. R. Crim. P. 2.3 by failing to inform him that he was under no obligation to accompany them to the police station to givé a statement, the trial court should have suppressed the evidence seized at the Efurds’ apartment and the statements given by Randall at city hall. In making his argument, Randall recognizes that, if a police officer has probable cause to arrest, failure to give a Rule 2.3 warning is irrelevant. See State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). He submits, however, that no probable cause was shown here because no evidence existed to suggest he had committed a battery on his child. We disagree.

Probable cause exists when there is reasonably trustworthy information within a law enforcement officer’s knowledge that would lead a person of reasonable caution to believe that a felony was committed by the person detained. Id. at 430. This court has held that the test for determining probable cause rests on the collective information of the officers, and the fact that an officer was contradictory about whether he had probable cause to arrest is not determinative of the issue. Id. The law is well settled that the degree of proof required to sustain a conviction is not required for probable cause to arrest, and it is equally well setded that all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 753 (1997).

At the conclusion of the State’s testimony at the suppression hearing, the deputy prosecutor asserted Randall had been arrested for a drug felony before he was taken to the city hall and questioned. The prosecutor further contended that the officers had the opinions of the doctor and other medical personnel that Ollie’s injuries resulted from child abuse. To reiterate, the attending physician told the officers that Ollie’s injuries were definitely the result of child abuse. The officers at this stage of their investigation also knew that the Efurds’ story of what happened to Ollie was inconsistent with the type of head injuries Ollie sustained. Yet, the Efurds, by their own rendition of what happened to Ollie, were the only ones who had been with Ollie at the time she sustained the injuries. We cannot say the trial court erred in denying Randall’s suppression motion, since under the State’s evidence, the officers had strong medical evidence that reasonably led them to believe the Efurds had physically abused their infant, then conjured a false story in an attempt to explain away the baby’s injuries. Because the officers possessed probable cause to arrest Randall for child abuse, we need not consider his Rule 2.3 argument.

Randall’s next point for reversal is that the lower court erred in admitting into evidence statements that the jail matron, Dee Powell, overheard Alisa and Randall say when the couple visited one another on four different occasions while being detained in the Sebastian County Detention Center. The Efurds were in rooms separated by glass and the jailer was stationed in Alisa’s room. Jailer Powell took handwritten notes, but she later typed them and took her handwritten notes home. Jailer Powell was later unable to produce her handwritten notes of the Efurds’ visits, so Randall moved to suppress her typewritten rendition of those notes. He argued that the original writings were required under Ark. R. Evid. 1002. That rule provides in relevant part that, to prove the content of a writing, recording or photograph, the original writing is required, except as otherwise provided in these rules or by statute. The original writing is not required, however, if all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. Ark. R. Evid. 1004(1).

Here, no one asserts Jailer Powell exercised bad faith in losing or destroying her handwritten notes. She, on the other hand, testified that she typed and transcribed without change her handwritten notes, but she simply could not find the handwritten notes after she was asked for them at a pretrial hearing. Based on these facts, we cannot say the trial court abused its discretion in allowing Jailer Powell to testify to those statements she overheard made by the Efurds.

Randall further claims, under Ark. R. Evid. 403, the jailer’s typed transcriptions should have been excluded because their prejudicial value outweighed their probative value because her handwritten notes were lost and unavailable. In other words, he asserts that the probative value of the typed notes was weakened by the fact that the handwritten notes were never found and produced by Jailer Powell.

Jailer Powell’s typed notes certainly had prejudicial value against Randall, since, among other things, they contained numerous remarks and accusations by Alisa that indicated Randall had hurt Ollie on previous occasions, that he had used drugs, and that they traded remarks impheating each other when talking of Ollie’s injuries. Obviously, the typed transcripts could also be said to have probative relevance bearing on the Efurds’ abusive treatment of Ollie. Nonetheless, Jailer Powell testified that she merely typed without change her handwritten notes as she was instructed by Lt. Hamilton, but when asked for those handwritten notes, she could not find them. Certainly, Powell’s credibility and the reliability of the transcriptions were ultimately questions for the jury. Initially, however, it was within the trial court’s discretion to weigh and determine the transcripts’ probative value against their prejudicial value, and we cannot say the trial court abused its discretion in allowing them into evidence.

In his fourth point, Randall submits the trial court erred in refusing to grant a mistrial when the prosecuting attorney in his opening statement commented on Randall’s right not to testify. The opening remark follows:

The Prosecutor: You will have testimony, though, from the defendant, testimony the State will put on through police officers, four statements.

After Randall moved for a mistrial, the trial court promptly cautioned the prosecutor to use the word “statement,” rather than “testimony.” The prosecutor complied, telling the jury that the State would place into evidence four statements that Randall made to police officers.

The law is settled that comment on the failure of a defendant to testify in a criminal case is a violation of the Self-Incrimination Clause of the Fifth Amendment of the United States Constitution, which is applicable to the states by the Fourteenth Amendment. Griffin v. California, 380 U.S. 609 (1965). It is also clear that seeming violations may be harmless error when the State can show that they did not contribute to the verdict or that there was no reasonable possibility that the comment might have contributed to the conviction. Chapman v. California, 386 U.S. 18 (1967). In determining harmless error, we excise the improper remarks and examine the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. See Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

In the present case, Randall averred that he had decided to testify prior to the commencement of trial. Randall had discussed the matter with his counsel on at least two occasions, and had talked to others about taking the stand as well. More importantly, however, Randall does not allege on appeal that the prosecutor’s remarks made him feel compelled to testify. Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974).

The evidence at trial also shows beyond a reasonable doubt that, even though the prosecutor’s comment could be labeled error, it was harmless and did not influence the verdict. See Landreth, 331 Ark. 12, 960 S.W.2d 434(1998). In sum, the State presented unrebutted medical evidence that contradicted all of Randall’s contentions as to how Oflie could have been injured. Besides the doctors’ unanimous opinions which contradicted Randall’s claims that Oflie’s head injuries could have been sustained by falling in a crib or bumping her head against a metal door while in a “walker,” he also denied ever having seen the multiple bruises and serious head injury the doctors observed early on the morning of February 8th when she was taken by the Efurds to the hospital. However, in one of Randall’s four statements, he admitted that he “Hit Ollie in the face. Slapped on her.” The medical examiner opined that Ollie had sixteen bruises and had been beaten to death; meanwhile, Randall denied even having seen Ollie with bruises or a serious head injury. Dr. Adalberto Torres attended Ollie when she was admitted to Arkansas Children’s Hospital, and it was his opinion Ollie had died as a result of Shaken Impact Syndrome, which occurs when a young child is picked up, shaken vigorously, and eventually struck against a firm object.

Finally, while Randall denied some of Jailer Powell’s testimony relating his jail conversations with Alisa, Powell said she overheard Randall tell Alisa that, on the night of February 8, 1996, he had been on “crank,” and might have hit Ollie with a tire tool. Powell related that he had lied to the “cops” about several ways it [Ollie’s injuries] happened, but that he just wacked her in the head. In short, the evidence was overwhelming that Randall physically abused his daughter, and we are unable to say he suffered any harm from the prosecutor’s opening remarks.

For his fifth argument, Randall asked for a mistrial when the prosecutor proceeded to play to the jury a tape of the first statement Randall gave to authorities concerning Ollie’s injuries. The prosecutor had had the tape transcribed so the jurors could more easily follow the taped version. When listening to the tape, the jurors interjected that the transcript and tape did not match.

Upon investigation, the court discovered that, while the transcript and tape did not match because some material was inadvertently deleted, the jurors had not -heard anything they were not intended to hear. After the State corrected its transcription, the trial court instructed the jury that what it had previously heard on the tape was what it was supposed to hear but that the transcript omitted some parts. The trial court informed the jurors that a correction in the transcript had been made and the tape would again be played from its beginning. Without further objection, the jury then heard the tape and followed it by reading the corrected transcript.

While it could be said that Randall failed to preserve the issue by fading to renew his objection, Edwards v. State, 318 Ark. 126, 864 S.W.2d 866 (1993), the trial court corrected any error that might have occurred. As we have repeatedly held, a mistrial is an extreme remedy and should only be granted when there is no chance that the trial can continue without manifest unfairness to the defendant, Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995), or when there has been error so prejudicial that justice cannot be served by continuing the trial. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). A trial judge’s denial of a mistrial motion will not be disturbed on appeal absent an abuse of discretion. Id. Here, the trial court’s explanation to the jury of the inconsistency between the tape and transcript was sufficient to remove any confusion or prejudice it may initially have created. Therefore, we affirm the court’s ruling on this point.

In his final argument on appeal, Randall argues that the trial court erred in allowing the jury to see a video in which he is dressed in his orange prison jumpsuit. Randall argues this was prejudicial, as it was a reminder to the jury that he was in jail.

This court may not consider this argument on appeal because the videotape was not provided in the abstract or the record. In Ark. Sup. Ct. R. 4-2(a)(6), appellants are directed to include exhibits which cannot be abstracted in words with their briefs, unless the requirement is “shown to be impractical and is waived by the court upon motion.” In this case the court would need to view the videotape to assess the alleged prejudice. However, there is no motion asking for a waiver of this requirement in this case file. Therefore, this court may not consider this argument. See Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for adverse rubngs objected to by appellant but not argued on appeal. There were no reversible errors.

Affirmed.

       Officer Powell’s later testimony was that the Efurds initially told him how Ollie had slipped and fallen in the bed, and he also indicated Alisa did most of the talking and Randall did not say a whole lot.

       Rule 2.3 provides as follows: “If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.”

       We also need not discuss Randall’s arrest on felony-drug charges and what effect that arrest had on his Rule 2.3 argument.

       Powell related similar other statements she attributed to Randall, but we need only say that, for the most part, they implicated Randall as the one who struck Ollie on occasion or placed a pillow across Ollie’s face when she cried.


text:
    C. W. RICHARDSON, Individually; Greg Richardson, Individually; and CWR Construction, Inc. v. Carl and Norlene RODGERS
    97-1476
    976 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      Anderson, Murphy & Hopkins, L.L.P., by: Randy Murphy, for appellants.

      Grayson, Holleman & Grayson, P.A., by: John T. Holleman IV, and Boswell, Tucker & Brewster, by: Ted Boswell, for appellees.
   Tom Glaze, Justice.

This is the second appeal in this case, which concerns the entry of a default judgment against C.W. Richardson, individually, Greg Richardson, individually, and CWR Construction, Inc. (collectively referred to as “Richardson”). Previously, this Court dismissed Richardson’s appeal for faEure to comply with Ark. R. Civ. P. 54(b). Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997). In that apped, the record faded to disclose the disposition of American States Insurance Company’s complaint in intervention. Id. FoEowing our decision, the trid court dismissed American without prejudice. Thus, because the rights of aE parties have now been adjudicated, and the deficiency as to Rule 54(b) cured, we have jurisdiction to entertain Richardson’s apped pursuant to Ark. Sup. Ct. R. 1-2(a)(7) (1998). A brief recitation of the facts is necessary before examining the merits of Richardson’s apped.

On November 9, 1995, Carl and Norlene Rodgers filed a complaint against Richardson and Centrd Arkansas Risk Management (“CARM”) aEeging negligence. The complaint provided that in May 1994, Carl was seriously injured by a fading water pipe whEe working on renovating the Pulaski County Courthouse. At the time, Carl was employed by IK Electric Service Co., a subcontractor on the project. Richardson was the generd contractor. Norlene requested $1,000,000 in damages for loss of consortium, and Carl prayed for compensatory damages in the amount of $4,000,000. Paragraph 16 of the complaint asserted that “the conduct of the Defendants, . . . was wiEful, wanton, reckless, and done with conscious indifference . . . thereby entitling Plaintiffs to punitive damages.” Carl asked for $4,000,000 and Norlene for $1,000,000 in punitive damages.

CARM filed a timely answer to the Rodgerses’ complaint. In addition to denying that it was the insurer for Pulaski County, CARM denied the existence of the alleged facts surrounding Carl’s injury. CARM further stated that neither Richardson nor the County was negligent. It also denied that Carl and Norlene were injured or that they were entitled to compensatory or punitive damages. The last paragraph of CARM’s answer provided that “each and every material allegation of the Complaint not specifically admitted herein” was denied. Co-defendant Richardson, however, failed to answer the Rodgerses’ complaint.

On December 13, 1995, the Rodgerses filed an affidavit with the trial court for a default judgment against Richardson on the basis that Richardson had faded to file an answer or to otherwise respond to the complaint. Two days later, the Rodgerses voluntarily nonsuited the claim against CARM. The trial court conducted a hearing on the default judgment motion, on the issue of damages only, and awarded Carl $1,450,000, and Norlene $50,000 against Richardson.

Richardson moved to set aside the default judgment, arguing that because CARJVI’s answer denied every allegation of negligence, its answer should inure to Richardson’s benefit. Citing to Ark. R. Civ. P. 55(c)(4), Richardson contended that CARJVI’s answer provided “any other reason justifying relief from the operation of judgment.” Richardson additionally argued it had a meritorious defense to the Rodgerses’ claim because it was. not negligent, and also because it was entitled to the protection of the exclusivity clause in the Workers’ Compensation Code. See Ark. Code Ann. § ll-9-105(a) (Repl. 1996). Without a hearing on the matter, the trial court denied Richardson’s motion, finding that “[n]o justifiable excuse for the failure to file a timely answer was presented.” The trial court further found that Richardson had failed to demonstrate a meritorious defense.

As described above, Richardson appealed the denial of its motion to set aside the default judgment to this Court, and based on Ark. R. Civ. P. 54(b), we dismissed its appeal, leaving Richardson free to return to the trial court. Richardson did so and filed a motion for the trial court to reconsider its earlier denial of Richardson’s motion to set aside the default judgment awarded Carl and Norlene Rodgers. Richardson argued that the trial court’s prior order refusing to set aside the Rodgerses’ default judgment was not a final judgment when it was entered. Richardson further argued that the trial court’s earlier order was inconsistent with Arkansas law. Richardson also submitted that the Rodgerses’ prior nonsuit of CARM’s claim from their lawsuit did not affect the application of the common defense doctrine, and therefore, CARM’s answer inured to Richardson’s benefit. Richardson asserted the Rodgerses wrongly relied on Rule 55(c)(1), which requires mistake, inadvertence, surprise, or excusable neglect to set aside a default judgment.

The Rodgerses responded that Richardson’s motion was precluded by the doctrine of the law of the case, and that Richardson could and should have raised its arguments in the first appeal to this court. The Rodgerses claim Richardson failed to incorporate those arguments in its first appeal, so it was barred from doing so when the case was dismissed and refiled in the trial court. Richardson responded that its arguments were the same ones it presented in its first appeal and brief filed with our court. The trial court again agreed with the Rodgerses, and denied Richardson’s motion to reconsider. Richardson, once more, appeals the trial court’s entry of the default judgment awarded the Rodgerses.

Richardson essentially presents one argument for reversal — the trial court improperly applied Arkansas law when it refused to set aside the default judgment entered in this case. In support of its contention, Richardson submits the trial court incorrectly interpreted and applied Ark. R. Civ. P. 55(c). Also, says Richardson, by misapplying Rule 55(c), the trial court erred further by requiring Richardson to present a “meritorious defense.” Because we agree with Richardson that Rule 55(c) is inapplicable in cases where the common defense doctrine is invoked, we hold that the trial court erred when it entered a default judgment in the Rodgerses’ behalf.

We first consider the Rodgerses’ argument that the law of the case precludes arguments now made by Richardson. Recently in Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998), we explained the doctrine of the law of the case as follows:

On second appeal, as in this case, the decision of the first appeal becomes law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not presented, [citation omitted]. The doctrine of the law of the case, stated in other terms, prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals, [citation omitted].

331 Ark. at 392-93; 962 S.W.2d at 351-52. Similarly, in McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994), Chief Justice Holt wrote, “An argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case.” See also Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990); and Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The Rodgerses contend that the doctrine applies, because after we dismissed the Richardson’s appeal the first time, Richardson presented new arguments to the trial court in its motion to reconsider the refusal to set aside the default judgment. The Rodgerses suggest those new arguments either were or could have been raised in the first appeal.

The Rodgerses’ reliance on the doctrine is misplaced because the doctrine only applies to a second appeal where there has been a “decision” in the first appeal. See Vandiver v. Banks, supra. Since the original appeal in this matter was dismissed for jurisdictional reasons under Ark. R. Civ. P. 54(b), this court never addressed the merits of Richardson’s first appeal and made no “decision” as to the outcome of the case.

Turning to the merits of the instant appeal, this court is called on to decide whether Ark. R. Civ. P. 55(c) and its requirements control in cases where the common defense doctrine is applicable. In 1990, Rule 55 was substantially revised, so that more cases would be decided on the merits instead of upon the technicalities that often lead to default judgment. Southern Transit Co. v. Collums, 333 Ark. 170, 174, 966 S.W.2d 906 (1998). One of the changes was to make the grant of default judgment under Rule 55(a) discretionary rather than mandatory. Id. Most recently, in Southern Transit, we set forth the requirements a defendant must satisfy in order to set a default judgment aside: (1) the defendant must show one of the four enumerated categories of reasons in Rule 55(c) to have the judgment set aside; and (2) if the reason is any other than that the judgment is void, a defaulting defendant must then demonstrate a meritorious defense to the action. 333 Ark. at 174-75; 966 S.W.2d at 907-08. Richardson contends it fulfilled the two-prong test of Rule 55(c) by satisfying 55(c)(4) and by showing that, in common-defense cases, a meritorious defense need not be proven, or alternatively, if a defense is required, that it comes within the Workers’ Compensation Employer Immunity Provision in Ark. Code Ann. § 11-9-105(a) (Repl. 1996). What neither party recognizes, though, is that there is a difference between a trial court’s decision to enter a default judgment and its refusal to set one aside. Rule 55(c) contemplates a circumstance where a default judgment has been entered properly. Rule 55(c) does not govern when the trial court improperly enters a default judgment by fading to recognize clear authority in an area. In this case, the area of clear authority is that of the common defense doctrine.

It has been settled in this State for almost a century and a half that the answer of one co-defendant inures to the benefit of the other co-defendants. See Aldridge v. Watling Ladder Co., 275 Ark. 225, 628 S.W.2d 322 (1982)(citing Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979); and Bruton et al v. Gregory, 8 Ark. 177 (1847)). The test for determining if an answer will inure to a co-defendant’s benefit is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 281 (1978); see also Arnold Fireworks Display v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991).

Here, the Rodgerses’ complaint alleged that Richardson and its employees, and the agents of Pulaski County were negligent, and that their negligence was the cause of Carl’s injuries. While the complaint did set out the allegations of negligence against Richardson in a separate paragraph from the allegations of negligence directed toward the County, CARM’s answer denied every paragraph of the complaint. Also, in paragraph 18 of its answer, CARM made a general denial stating, “[CARM] denies, generally and specifically, each and every material allegation of the Complaint not specifically admitted herein.” Clearly, CARM’s answer denied not only the existence of the Rodgerses’ cause of action, but also asserted a defense common to both Richardson and CARM.

Next, we turn to Ark. R. Civ. P. 55(a), which reads as follows:

(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend as provided by these rules, judgment by default may be entered by the court.

(Emphasis added.) In this case, Richardson did appear and defend by virtue of CAPM’s timely answer, which inured to Richardson’s benefit under the common-defense doctrine. As just explained, CARM’s defense is substituted for Richardson’s failure to file a separate timely answer. Although the Rodgerses’ argue passionately some eleven cases where this court repeatedly upheld the trial court’s discretion where a default judgment was granted, we merely note that ten of those decisions invoked Rule 55(c) where excusable neglect was argued. As just discussed, we conclude here that Rule 55(c) and the requirement of excusable neglect are not invoked or applicable. One case the Rodgerses’ cite, Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991), mentions the common-defense doctrine where a default judgment was entered, but that was a situation where we held the doctrine did not apply. In conclusion, none of these cases offered by the Rodgerses are applicable to the facts here.

For the above reasons, we hold it was error for the trial court to enter a default judgment against Richardson and further error to refuse to set it aside upon Richardson’s motion.

The judgment is reversed and the cause remanded.

Imber, J., not participating.