author: TOM Glaze, Justice. ROBERT L. BROWN, Justice,

text:
    John E. LORD and Sue F. Lord v. O.B. MAZZANTI, Ann Mazzanti, Gwendolyn Manning, Margaret Burns, Larry Miller, Shirley Jean Porter, Ida Rossini, Pat Jackson, and June Blagmon
    99-163
    2 S.W.3d 76
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      James W. Haddock, P.A., by: James W. Haddock, for appellants.

      Bridewell & Bridewell Attorneys, by: Laurie A. Bridewell, for appellees.
   TOM Glaze, Justice.

This case arose from a neighborhood dispute ce. John and Sue Lord’s moving a mobile home onto their property in the Lakewood Estates No. 1 Subdivision to Lake Village. The mobile home was to serve as their dwelling. O. B. and Ann Mazzanti and other property owners (hereafter collectively referred to as the Mazzantis) in Lakewood Estates No. 1 objected to the Lords’ mobile home, stating it violated the subdivision’s bill of restrictive covenants. Unpersuaded by the Mazzantis’ assertions, the Lords continued with plans to make the mobile home their dwelling, causing the Mazzantis to file this suit in Chicot County Chancery Court.

On August 27, 1997, the Mazzantis sought an injunction ordering the Lords to remove their structure and to pay the Mazzantis’ attorneys’ fees. The Lords answered, denying the Mazzantis’ claims, and after a full trial on January 9, 1998, the chancellor entered his order with findings of fact and conclusions of law in favor of the Mazzantis on June 10, 1998. The Lords filed a notice of appeal and obtained a timely extension to docket their appeal to December 1, 1998, past the ninety-day-limitation requirement provided in Ark. R. App. P. —Civil 5(a). However, when December 1 came, the Lords dismissed their appeal.

It was on or about December 1, 1998, that the chancellor became aware that his original decree of June 10, 1998, contained clerical errors. He corrected the errors by entering an amended decree, which he signed on December 1, 1998, and entered on December 3, 1998. In short, the chancellor’s original decree contained internal inconsistencies, whereby the first page of the decree accurately identified the Lords as the defendants, finding that their property was subject to the Lakewood Estates restrictive covenants; however, on page two, the plaintiffs Mazzantis were mistakenly identified as the defendant owners of the mobile home and ordered to remove it. The decree also erred in ordering the Mazzantis, who were the prevailing plaintiffs, to pay the Lords’ attorney’s fees. In his amended decree, the chancellor merely caused his decree to reflect the original findings of fact and conclusions of law filed on June 10, 1998, which found that the Lords had breached subdivision restrictive covenants and ordered them to remove their dwelling. The chancellor’s amended decree further corrected the original decree to show the Lords as losing party defendants and ordering them to pay the Mazzantis’ $2,500.00 in attorneys’ fees.

The Lords bring this appeal from the chancellor’s December 3 amended decree, arguing generally that the chancellor had no authority under Ark. R. Civ. E 60(a) to amend or modify his decree after ninety days had passed since its entry. In support of their argument, the Lords cite our cases of Ross v. Southern Farm Bureau Cos. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998), and Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). The Mazzantis rejoin, citing Arkansas precedents extending back over one hundred and fifty years that hold that trial courts have the inherent authority to correct a decree to accurately reflect the judgment' that was actually rendered. See Rossi v. Rossi, 319 Ark. 371, 892 S.W.2d 246 (1995) (a trial court may “enter an order nunc pro tunc when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk”); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961) (holding that “where the entry through some plain error fails to correspond with the judgment that was actually rendered, the court can at a later term correct the judgment”); King & Houston v. State Bank, 9 Ark. 185 (1848) (noting the “authority of the court... to amend in whatever may be necessary to make the record speak the truth”); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983) (the court has power “to correct the record to the extent of making it conform to the action which was in reality taken at the time”).

In 1979, this court adopted Ark. R. Civ. P. 60, specifically Rule 60(a) in issue here, which continues Arkansas’s settled practice of allowing a trial court to correct clerical errors at any time. Our Rule 60(a), which is identical to Fed. R. Civ. P. 60(a), reads as follows:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (Emphasis added.)

Rule 60(a) is merely a restatement of Arkansas’s well-settled law, empowering the trial court to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. See Lovett v State, 267 Ark. 912, 591 S.W.2d 683 (1980); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). Just recently we upheld a trial court’s authority to enter an order nunc pro tunc in a criminal case when more than a year and a half had passed since the original judgment had been filed and mandate had issued. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). While we noted in McCuen that Rule 60(a) itself does not specifically refer or apply to a criminal case, it is obvious that Rule 60(a) does apply to civil cases, and its plain language adopts the same longstanding rule utilized in all cases — that trial courts may correct clerical errors at any time. In these circumstances, a trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. See Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987); Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584; Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987), overruled on other grounds, 26 Ark. App. 37, 759 S.W.2d 570 (1988).

As already noted above, Fed. R. Civ. P. 60(a) is identical to Arkansas’s Rule 60(a), and the federal courts have reached the same conclusion we have, namely, that the rule permits the correction of clerical mistakes and that the power may be exercised at any time, either on motion or on the court’s own initiative, so the judgment or record will be made to speak the truth but not made to say something other than what originally was pronounced. See 11 Wright, Miller & Kane, Federal Practice and Procedure § 2854 (2d ed. 1995). See also, American Trucking Ass’ns v. Frisco Transp. Co., 358 U.S. 133 (1958) (quoting the “at any time” language of the federal rule and noting that “it is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors”); Pattiz v. Schwartz, 386 F.2d 300 (8th Cir. 1968) (lower court within its power to act a full five years after entry of its original order because what it “was effectuating ... was nothing more than the correction in the formal record of a gap or error arising from oversight or omission, within the definite and positive language of Rule 60 (a)’s first sentence.... [I]ts action ... resulted] simply in the record speaking the truth”).

Even though the Lords concede the chancellor in the instant case merely corrected clerical errors, they ask us to ignore Arkansas’s common-law rule and the clear wording of Rule 60(a) and urge us to hold the chancellor erred when making the corrections. Basically, the Lords contend the ninety-day limitation contained in Rule 60(b) should also apply to clerical mistakes mentioned in Rule 60(a). Unquestionably, a trial court has broad authority to correct nonclerical mistakes or errors so as to prevent the miscarriage of justice if the court does so within ninety days of the filing of its decree or order. However, to read provision (b) to include clerical mistakes would not only render meaningless the “at any time” language in provision (a), but such a construction would also conflict with the common-law rule discussed above.

As previously noted, the Lords rely heavily on this court’s decisions in Phillips and Ross. These two decisions are distinguishable, since neither one involved clerical mistakes. While neither case controls the situation now before us, both opinions contain errant language that requires overruling, and we do so in this decision.

We first address Phillips, and again point out that it did not involve clerical mistakes; instead, it concerned a trial court’s belated granting of a plaintiff’s request for new trial. The Phillips court held the. trial court lost jurisdiction to grant a new trial because it failed to comply with the dictates of Ark. R. App. P. - Civil 4(b)(1). The defendant in Phillips also argued that, because Ark. R. Civ. P. 60(b) authorized a trial court to act within ninety days to prevent the miscarriage of justice, the trial court had power to grant a Rule 59 new trial motion, so long as it did so within the ninety-day limitation period contained in Rule 60(b). This court rejected this argument. The Phillips court stated that the Rule 60 miscarriage of justice language governed mistakes, errors, and fraud in obtaining the judgment, which are distinct and apart from those grounds substantially affecting the material rights of a party set out in Rule 59. While unnecessary to the decision, the Phillips opinion added, “the reference to certain miscarriages of justice in rule 60(b) is a reference to those clerical errors or mistakes described in rule 60(a).” 305 Ark. at 367, 807 S.W.2d at 925. This sentence simply is a misstatement of how provisions (a) and (b) relate to one another. As already discussed, provision (b) makes no mention of “clerical mistakes,” and clearly the mistakes or errors or the prevention of the miscarriage of justice in (b) must be made within ninety days from entry of the trial court’s decree or order. “Clerical mistakes” under provision (a) can be corrected at any time. In sum, while Phillips does contain some unfortunate dictum that requires overruling, the case turned on facts and issues simply not applicable here.

We next discuss Ross, where our court cited and relied on the errant language of Phillips in reaching its decision. Again, Ross did not involve a clerical mistake. There, plaintiff Jerry Ross initiated suit against defendants Troy Osbourne and Clay Vanoven for negligence, and later joined Southern Farm Bureau Insurance Co., alleging the insurance company would be liable under Ross’s underinsured motorist coverage. Ross setded his claims with Osbourne and Vanoven, and an order was entered dismissing all claims with prejudice. Later, it was realized that the effect of the order included the dismissal of Ross’s claim against Southern Farm Bureau. Although ninety days had passed since the trial court’s original order of dismissal, a “corrected order of dismissal with prejudice,” dismissing only Osbourne and Vanoven was entered. The Ross court held the trial court lost jurisdiction to amend its dismissal order since the ninety-day limitation period provided under Rule 60(b) had elapsed. The court further stated that, while it harbored some doubt whether Ross’s error in this case could be characterized as “clerical,” this court, citing Phillips, stated the ninety-day requirement in Rule 60(b) also applies to “clerical errors.”

This court’s holding in Ross was correct, but it is because the error there was not a clerical one as provided in Rule 60(a); instead, the error was a nonclerical one, which was subject to the ninety-day limitation in Rule 60(b). Simply put, when the trial court entered its original order of dismissal, it made no mention or adjudication of Ross’s claim against Southern Farm Bureau. Such a situation is in stark contrast with the facts now before us where the chancellor entered his correct findings of facts and conclusions of law at the same time he filed his decree, wherein he had mistakenly transposed the parties’ names.

In conclusion, here there was neither a motion for new trial under Rule 59, as in Phillips, nor an erroneous dismissal of any party, as in Ross. The mistake here was indisputably a clerical error. Our courts have always had the inherent authority to enter an order nunc pro tunc to correct such mistakes and to make the record speak the truth. Therefore, the chancellor’s amended decree correcting the original decree was proper and his ruling is affirmed. To the extent the language in Phillips and Ross indicates otherwise, that language is overruled.

BROWN, J., concurs.

ROBERT L. BROWN, Justice,

concurring. This is a particuXxJarly difficult case, because it is obvious that a clerical error was committed by the trial court in the original decree. But that is no reason for this court to reverse its interpretation of its own rules and throw precedent to the four winds. To do so simply dilutes the common law and places this court in the posture of deciding cases involving our rules on an ad hoc basis. I would not reverse the long line of recent authority on the point that the ninety-day time limit set out in Rule 60(b) applies to clerical errors in Rule 60(a). My preference would be to correct the clear error in the decree at this level by interpreting the obvious ambiguity. For that reason, I concur in the result.

Rule 60(a) and (b) read:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.

Ark. R. Civ. P. 60(a) and (b).

That this court is disregarding its precedent is beyond dispute. Since 1991, there have been six cases handed down where we referred to the fact that the ninety-day time limit in Rule 60(b) applied to the correction of clerical mistakes in judgments. See Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998); United S. Assur. Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995); Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Reis v. Yates, 313 Ark. 300, 854 S.W.2d 335 (1993); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). (Even the dissenters in this case agreed that the inherent power of the trial courts to amend their judgments was limited to ninety days from judgment). The court of appeals has understood this and followed our decisions. See, eg., Tyer v. Tyer, 56 Ark. App. 1, 937 S.W.2d 667 (1997). This interpretation of Rule 60(a) and (b) is so established that it has found its way into former Justice David Newbern’s treatise, ARKANSAS Civil Practice & Procedure § 16-4, ¶ 2.1. (Supp. 1998).

That “clerical mistake” in Rule 60(a) is what is embraced within “any error” in Rule 60(b) is perhaps best stated in United S. Assur. Co. v. Beard, supra:

Under Rule 60(b), a party may move to correct any error or mistake or to prevent the miscarriage of justice by requesting the trial court to set aside its decree or order within ninety days of its having been filed. This court has narrowly interpreted Rule 60(b) to apply only to those situations provided in Rule 60(a), namely, to correct clerical mistakes in judgments, orders or other parts of the record and errors arising from oversight or omissions. See Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Ingram v. Wirt, 314 Ark. 553, 864 S.W2d 237 (1993); Jackson v. Arkansas Power & Light, 309 Ark. 572, 832 S.W.2d 224 (1992); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). Here, Southern failed to assert in its Rule 60(b) motion a clerical mistake, error or omission referred to in Rule 60(a), and for that reason alone, Southern’s motion should have been denied by the trial court. Cf. Pugh, 317 Ark. at 308, 877 S.W.2d at 579.

320 Ark. at 118, 894 S.W.2d at 950.

In addition, in Ross v. Southern Farm Bureau Cas. Ins. Co., supra, we said:

There is some doubt whether the error in this case is properly characterized by the parties as “clerical.” 'Whether it was a clerical error or some other type of oversight, Rule 60(b)’s ninety-day limit on modification applies, and the Trial Court lost jurisdiction to amend the order of dismissal ninety days after the September order was entered.

333 Ark. at 231, 968 S.W.2d at 624.

The majority today has now reversed this interpretation of Rule 60(a) and (b) and given open-ended jurisdiction to the trial courts to correct clerical errors. While that might have been an alternative route of interpretation in 1991, our caselaw now runs counter to it.

We, of course, could interpret the trial court’s decree at this level and resolve the ambiguity. The decree at issue in this case is inherently contradictory. It begins with findings against the defendants which correspond to the trial court’s previous letter opinion. It then substitutes “plaintiffs” for “defendants” and enters judgment against the plaintiffs. That this is merely a clerical error is supported by the fact that it is the defendants who appealed from the decree.

There is no doubt that this court has the authority to interpret ambiguous judgments. See, e.g., Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991). In Magness, as in the present case, the judgment of the trial court was ambiguous. There, it was difficult to determine whether the judge’s order was an order of summary judgment or a dismissal order. We said:

How then are we to interpret the ambiguous order of the trial court dated June 22, 1989? As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. We have followed this general rule stating that judgments should be reviewed by looking to the judgment itself, pleadings, and any evidence presented. Webb v. Herpin, 217 Ark. 826, 233 S.W.2d 385 (1950); Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925); Nakdimen v. Brazil, 137 Ark. 188, 208 S.W. 431 (1919). Most recently, this court has applied this rule in Arkansas State Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991). There, we stated that in interpreting a lower court’s order, “[w]hile we look to the language in which [the] order is couched, we also look to whether the evidence supports [the] ruling....” Arkansas State Bank Comm’r, 304 Ark. at 607, 804 S.W.2d at 694 (citing Nakdimen v. Brazil, 137 Ark. 188, 208 S.W. 431 (1919)).

305 Ark. at 506, 808 S.W.2d at 784-785. I would follow the direction of Magness and interpret the decree to read as the trial court obviously intended.

It is dangerous to disregard the principle of stare decisis for rule interpretation because we have a difficult case to decide. That destabilizes the common law and wreaks havoc on practicing attorneys who seek guidance from precedent and strive to follow our rules. I would follow precedent and interpret the ambiguous decree at this level. For these reasons, I concur in the result.

       In his amended decree, the chancellor refers to Rule 59(a) of the Rules of Civil Procedure as authority to correct typographical errors, but it is clear Rule 59(a) is not applicable for such purposes and Rule 60(a) is the rule at issue.

       The Mazzantis also cite the case of VanCamp v. VanCamp, 333 Ark. 320, 969 S.W.2d 184 (1994), in support of their argument, but, as the Lords point out,'this court in VanCamp upheld the trial court’s original decree because the parties had previously contractually bound themselves to post-majority child support to send their children to college, and this court held their contract was binding and enforceable as any other contract. Rule 60 was not utilized in reaching a decision in this divorce case. Instead, the VanCamp court, applying settled contract law in divorce cases, concluded that opposing parties both had to assent to any changes before any contract could be modified.

       This court chose not to adopt provision (b) of the Federal Rules of Procedure, finding the federal rule would be an unwelcome departure from existing Arkansas law and detract from the stability of final judgments. In this vein, the court explained that the distinction between intrinsic and extrinsic fraud as a basis for relief from a judgment is considered an important and desirable one. See Reporter’s Notes to Arkansas Rule 60.

       At the time of the Phillips decision, the provisions dealing with filing motions for new trial and filing notices of appeal were contained in Rule 4(c) of the Rules of Appellate Procedure


source: Caselaw Access Project

author: RAY THORNTON, Justice.

license: Public Domain

text:
    Corey Roshan HARRIS v. STATE of Arkansas
    99-593
    2 S.W.3d 768
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Asst. Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant, Corey Harris, was tice. aggravated robbery, kidnapping, and theft of property. As a twice convicted felon, appellant was sentenced to life imprisonment for the aggravated robbery and kidnapping charges and to thirty years’ imprisonment for the theft-of-property charge, with the sentences to be served concurrently. Appellant raises one evidentiary point on appeal and we affirm.

Because there was no challenge to the sufficiency of the evidence, we will summarize the facts. On the night of April 26, 1998, April Roberts was approached at her apartment complex by appellant, who forced her at gun-point to get into her car and drive him to a secluded area. He sat next to her in the passenger’s seat and went through the contents of her purse, removing her ATM card, then requested that she give him her ATM personal identification number. Mrs. Roberts was then forced into the trunk of her car while appellant drove to her bank, where he used her ATM card to withdraw money from her account. As he continued to drive the vehicle, Ms. Roberts was able to open the trunk, and she jumped from the moving car. She was severely injured.

Ms. Roberts identified appellant from a photo lineup, and a videotape of the ATM transaction at Ms. Roberts’s bank contained clear photographs of the transaction.

During trial, appellant relied on the defense of mistaken identity and on appeal he contends that the trial court erred in admitting into evidence a copy of Ms. Roberts’s statement taken by the police following the incident in which she described her assailant and the crimes committed by him. This court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues and those decisions will not be reversed absent a clear abuse of discretion. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991).

We note that the statement to the police was first used by appellant in cross examination of Ms. Roberts to suggest inconsistencies during her testimony about her opportunity to identify her assailant. Her testimony in part was:

Q. [defense counsel] When he got into the vehicle he put a bandana on his face, is that correct?
A. [Ms. ROBERTS] Not right after he got in there.
Q. Okay. What - how - what was the length of time from once he got into the car until the bandana was put on his face?
A. Maybe ten minutes.
Q. Okay. And when you arrived at Shannon Hills, is that when he put the bandana on his face or was it before?
A. No. He put it while he was in there, [he] He had a hard time keeping it over his face and then after - when he asked me to get in the car, he did not have it on his face then.
Q. Okay. And did you tell that to the police?
A. I don’t remember.

Defense counsel then presented Ms. Roberts with a copy of a transcript containing the earlier conversation she had with Detective Kevin Simpson of the Little Rock Police Department and then continued her cross examination:

Q. Could you look through there [the transcript] and please tell me if you see where you told Detective Simpson that he [appellant] got out of the car without the bandana on his face?
A. No. I don’t see anywhere that I said that.
Q. Do you know if he had a mustache or beard? A. There was kind of like a goatee like.
Q. Did you tell Detective Simpson that?
A. I don’t know.
Q. Would it help to refresh your memory? Again showing you Defendant’s Exhibit Number 1 [the transcript].
A. I don’t see that I even said it on here.

At the conclusion of the cross examination, the State then sought to rehabilitate Ms. Roberts’s credibility on redirect examination at the end of which the State offered the transcript into evidence:

Ms. BlGGERS [counsel for the State]: Your honor, I have State’s exhibit 2 [the transcript] and I’d like that to be introduced into evidence.
The COURT: Without objection, let it be received.
Ms. CORDI [defense counsel]: Your honor, I’ll object to her transcript coming in. I think that was just used to refresh her memory. I don’t think it’s proper that it be admitted into evidence. I think they’re just trying to boost her testimony by having the transcript admitted.
Ms. BlGGERS: Your honor, it was used to refresh her testimony and Rule 612 says that if witness uses a writing to refresh her memory, the adverse party is entitled to have that produced and it also states that I mean, we’re entitled to inspect it and introduce that into evidence.
The Court: Okay. The objection’s overruled.

It is from this ruling that appellant appeals, arguing that the admission of the transcript was an error.

The general rule is that prior consistent statements of a witness are not admissible to corroborate or sustain his testimony-given in court. George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980). We have explained that to allow such statements would be self-serving and cumulative. Id. However, we have also held that it is settled law that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. Frazier v. State, 323 Ark. 350, 915 S.W. 2d 691 (1996); Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); see also, Ark. R. Evid. 801 (d)(1)(h). We hold that this rule is applicable to the present case and that the trial court’s ruling was correct.

In Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996), we considered this question in remarkably similar circumstances, and held that when defense counsel had made every attempt to show a witness’s trial testimony was inconsistent with his earlier statements, fairness dictated that the State be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury’s mind from defense counsel’s examination. We explained that such evidence was not hearsay under Ark. R. Evid. 801(d)(1)(h), and was not offered to prove the truth of the matter asserted, but to rebut an express or implied charge of recent fabrication. Frazier, supra.

Applying Frazier to the present case, it is clear that the trial ■ court’s ruling was correct. Defense counsel sought to discredit Ms. Roberts’s trial testimony on cross examination by referring to her prior statements made to the police. The State then questioned Ms. Roberts further on the same issue and moved to have the prior statement entered into evidence, which afforded the jury the opportunity to view the statement and determine whether the implied charge of recent fabrication offered by defense counsel was valid.

We are mindful that Ark. R. Evid. 612, the rule of evidence cited by the State to persuade the trial court that the transcript of the prior statement should be admitted, was not determinative of the issue presented in this case. However, we have often held that we will not reverse a trial judge who uses the wrong reason but reaches the right result. See Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). This transcript was admissible under Ark. R. Evid. 801(d)(1)(h) and in accordance with Frazier. We also note that appellant neither requested that a limiting instruction be given nor moved that the trial court exclude from evidence portions of the statement that appellant felt were prejudicial. See Frazier, supra. We have concluded that the trial court did not abuse its discretion in admitting the prior statement.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


author: Ray Thornton, Justice.

text:
    Clarence SMITH v. CREDIT SERVICE COMPANY
    99-275
    2 S.W.3d 69
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Steven R. Jackson, for appellant.

      Stanley M. Holleman, for appellee.
   Ray Thornton, Justice.

Appellant Clarence U. Smith brings icappeal e. the decision of the Sebastian County Circuit Court, denying his Motion to Quash the Execution and Vacate the Sale of his property on appeal from the Fort Smith Municipal Court. We have concluded that the municipal court did not have jurisdiction to impose and execute upon a Hen upon real estate and that the trial court erred in denying the requested relief. Accordingly, we reverse and remand.

Appellee Credit Service Company, assignee of certain debts incurred by appellant and his ex-wife at St. Edward Mercy Medical Center in Fort Smith, filed a complaint in Fort Smith Municipal Court on June 16, 1997, against appellant for the payment of the debts. Appellant answered the complaint with his admission of the monies owed and judgment on the pleadings was entered on August 6, 1997, in the amount of $1,708.41, plus $60.00 court costs and $500.00 attorney’s fees. Based on this judgment, a writ of execution was issued by the municipal court on February 22, 1998. That writ was recalled by the court at the request of appellee’s counsel, and a second writ was issued on March 25, 1998. Appellant was allegedly served with the writ of execution at his home sometime between March 27th and April 3rd, 1998, according to the testimony of the sheriff’s deputy. Another deputy testified that he obtained a copy of the real estate tax statements for 1997 from the tax collector’s office and selected a piece of property located at 3214 Iola in Fort Smith, showing ownership by Clarence U. Smith, appellant, and Carol A. Smith, appellant’s ex-wife, as owners, upon which to levy.

Notice of the proposed sale was given by publication and posting as required by the statute, and a deputy testified that he mailed a copy of the notice of sale to appellant by regular mail. Appellant’s tenant, who had entered into an installment land contract with appellant’s ex-wife, was turned out of the property. The sale of the property, for $10,000.00 cash, occurred on April 22, 1998, at the courthouse steps, and immediate possession was conveyed to the purchaser.

The report of the sale was made by the deputy on April 22, 1998, and a Sheriff’s Bill of Sale was executed on the same day. The Sheriff’s return actually shows that the writ of execution was served on the 22nd day of April by attaching the property and selling it the same day, although the officer testified that this was not correct and that they believed they had complied with the requirements of the statute. The “Writ of Execution” submitted into evidence does not include any notice to the debtor of possible state or federal statutory exemptions, his right to select what property would be levied on, or his right to have the sale take place at the property’s location. Testimony of the deputy who selected the property to be levied revealed that he was aware at the time of the levy and execution that the title to land showed a joint owner, Mrs. Smith, and that he knew that “the co-owner was supposed to be notified in writing of the sale,” but he did not take any steps to do so.

At trial, appellant strenuously denied having been served any notice by the sheriff’s office or having received notice in the mail, and the deputy who claimed to have served him was unable to produce any record as to the date certain that appellant was allegedly served. Appellant testified that he first learned the property had been sold when he tried to collect the rent from the tenant and saw that the house had been “gutted” by the new owner. Appellant then filed a Motion to Quash the Execution and Vacate the Order of Confirmation in the Fort Smith Municipal Court, contending that the municipal court was without jurisdiction to determine cases involving Hens on land or title or possession to real property, and that the sale was invalid because of the sheriff’s and appellee’s failure to follow statutory procedure regarding the issuance of writs of execution and conduct of public sales.

Appellant’s motion was denied by the municipal court, finding that appellant had received notice of the sale and that the procedures utilized were correct. Notice of appeal was timely filed in the Sebastian County Circuit Court, and appellant’s motion was again denied, as was a motion for reconsideration of the decision. From that order entered November 18, 1998, appellant brings this appeal, arguing that the municipal court was without jurisdiction to proceed against his real property, and that the procedures utilized failed to comply with our statutory requirements for execution. We agree.

Arkansas’s constitutional and statutory law have long provided that municipal courts, as well as justices of the peace, are without jurisdiction to address issues involving liens on land or title or possession to real property. Arkansas Constitution, Article 7, provides that municipal courts, also known as corporation courts, are “invested with jurisdiction concurrent with justices of the peace” and that “a justice of the peace shall not have jurisdiction where a lien on land or tide or possession thereto in involved.” Ark. Const, art. 7, §§ 40 and 43 (codified at Ark. Code Ann. §16-19-1004(b) (“No real estate shall be levied upon or sold by virtue of any execution issued from a justice of the peace court”) and Ark. Code Ann. § 16-17-206(a) (Repl. 1999) (“Municipal courts and justices of the peace shall not have jurisdiction in civil cases where a lien on land or title or possession thereto is involved.”)).

Appellee argued below that these provisions were not applicable to this case because the underlying subject-matter concerned the enforcement of a contract. We agree that a court must be able to enforce its judgments in order to retain its authority to act and note that municipal courts, for instance, possess the authority to enforce their judgments against personal property. See, e.g., Ark. Code Ann. § 16-17-613 (1987) (outlining manner of giving judgment and enforcing and collecting a judgment from municipal court).

In this case appellee failed to utilize the statutory provisions by which a judgment entered by a municipal court may become a judgment lien on real estate. Ark. Code Ann. § 16-65-117(a)(1)(A) (Supp. 1999), provides that: “A judgment in the municipal courts of this state shall not be a lien on the real estate owned by the defendant in the county in which the judgment was rendered until the judgment has been filed and indexed in the judgment records of the circuit court in the county in which the judgment was rendered.” Id. See also Inferior Ct. R. 8(d)(“A judgment entered by an inferior court in this state shall not become a hen against any real property unless a certified copy of such judgment, showing the name of the judgment debtor, the date and amount thereof, shall be filed in the office of the circuit clerk of the county in which the land is situated”). There is no disagreement that the judgment was not filed and indexed in the Sebastian county circuit court records. Therefore, the judgment entered by the Fort Smith Municipal Court did not become a lien on appellant’s real property. Accordingly, we hold that the trial court erred in denying appellant’s motion to quash the execution and vacate the sale of his property, and reverse and remand for further proceedings in accordance with this opinion. This holding renders unnecessary any discussion of appellant’s second point on appeal, concerning the validity of questionable procedures utilized in the sale.

Reversed and remanded.


author: LAVENSKI R. SMITH, Justice.

text:
    S. Baker FULLERTON v. John McCORD
    99-306
    2 S.W.3d 775
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Russell D. Berry, for appellant.
    No response.
   LAVENSKI R. SMITH, Justice.

Appellant, S. Baker Fullerton, III, attempts ice. extradition to Tennessee, and appeals the circuit court’s denial of his Petition for a Writ of Habeas Corpus. Fullerton alleges two errors in the extradition proceedings. First, he asserts the court erred because he is not the person identified in the extradition documents. Second, he asserts that he cannot be a fugitive because he was not in Tennessee at the time of the alleged crime. Appellant’s contentions are without merit, and we affirm.

Facts

In April 1997, Graves Chrysler of Gibson County, Tennessee (“Graves”), received a check from Fullerton Motor Company of Arkansas County, Arkansas (“FMC”), for purchase of a 1997 Dodge Intrepid. FuEerton’s business partner entered into the transaction for FMC in Tennessee. Apparently, the check was returned due to insufficient funds. Graves instituted criminal proceedings in Tennessee. Tennessee authorities sought information from the Arkansas Secretary of State and determined that S. Fullerton Baker, III, was the primary person responsible for operation of FMC in Arkansas County, Arkansas. Pursuant to the Uniform Criminal Extradition Act (Ark. Code Ann. §§ 16-94-201—16-94-231), the Governor of Tennessee sent a request to the Governor of Arkansas seeking issuance of a warrant for the arrest of “F. Baker FuEerton, III a/k/a Baker FuEerton.” The request also sought his extradition for an act committed outside Tennessee but which resulted in a crime being committed within Tennessee. Governor Huckabee issued the warrant for “F. Baker FuEerton,. Ill a/k/a Baker FuEerton” on June 9, 1998. The Tennessee authorities’ case file showed the name of “S. Baker FuEerton, III.” The substitution of “F” for “S” is aEeged to be a typographical error. In addition to the warrant, the State of Tennessee also provided FuEerton’s date of birth, his social security number, and his height and weight. The Arkansas County Sheriff’s Department served the warrant on appeEant, S. Baker FuEerton, III. FuEerton filed a Petition for a Writ of Habeas Corpus with the circuit court of Arkansas County. The circuit court denied the petition foEowing a hearing on August 12, 1998. FuEerton appeals from that denial.

Although originaEy filed in the court of appeals, we have this appeal by reassignment because interpretation of Ark.Code Ann. § 16-94-206 (Uniform Criminal Extradition Act) (1987) is an issue of first impression. Ark. Sup. Ct. R. l-2(b)(l). This case also involves a substantial question of law concerning the construction and interpretation of an act of the General Assembly. Ark. Sup. Ct. R. l-2(b)(6). We have jurisdiction to review inferior courts on applications for writs of habeas corpus. State, ex rel Atty Gen. v. Williams, 97 Ark. 243, 133 S.W. 1017 (1911).

The principal issue in a habeas corpus proceeding is whether the petitioner is detained without lawful authority. Ark. Code Ann. § 16-112-103 (1987). To succeed, the petitioner must show that the commitment is invalid on its face or that the court lacked jurisdiction. George v. State, 285 Ark. 84, 685 S.W. 2d 141 (1985). Where the writ is sought to prevent extradition, the petitioner must present evidence that is practically conclusive in his favor. Wilkins v. State, 258 S.W.2d 578 S.W.2d 382 (1975).

Methods of Extradition

Extradition serves to prevent individuals from escaping prosecution for crimes committed in one state by fleeing or remaining in another state. It precludes any state from becoming a sanctuary for fugitives from justice of another state. Michigan v. Doran, 439 U.S. 282 (1978). Federal and State law independently authorize extradition. Federal law does so through the Extradition Clause of the United States Constitution. U.S. Const, art. 4, § 2, cl. 2. State law achieves this through the Uniform Extradition Act. Ark. Code Ann. § 16-94-206; see also, Gulley, Sheriff v. Apple, 213 Ark. 351, 210 S.W.2d 514 (1948). The federal constitution establishes mandatory extradition of fugitives whereas the Uniform Extradition Act provides for both a mandatory procedure and a discretionary procedure.

Mandatory Extradition

Mandatory extradition, whether state or federal, secures arrest and transfer only of those persons classified as fugitives. A person is a fugitive when he or she commits a crime in the demanding State, while physically present there, subsequently leaves the demanding State, and thereafter resides in the asylum State. Cadle & Pierce v Cauthron, Sheriff, 266 Ark. 419, 584 S.W. 2d 6 (1979) (citing Appleyard v. Massachusetts, 203 U.S. 222, (1906)). As the Supreme Court stated in California v. Superior Court of California, 482 U.S. 400 (1986), “By the express terms of federal law ... the asylum State is bound to deliver up to the demanding State’s agent a fugitive against whom a properly certified indictment or affidavit charging crime is lodged.”

Discretionary Extradition

The Uniform Criminal Extradition Act provides a procedure not only for mandatory extradition arising under the U.S. Constitution, but also provides for extradition at the discretion of the governor of non-fugitives accused of committing acts in Arkansas or a third state which intentionally resulted in a crime in the demanding State. Ark.Code Ann. § 16-94-206 provides:

The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in 16-94-205 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand; and the provisions of this subchapter not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime and has not fled therefrom.

In Glover v. State, 257 Ark. 241, 515 S.W.2d 641 (1974), we stated, “This [Uniform Criminal Extradition Act] act must be considered along with the federal statutes, because the federal act controls where there is an inconsistency, but the legislature of the asylum state may permit its Governor to surrender a fugitive on terms less exacting than those imposed by Congress.” Interpretation of this provision is an issue of first impression in Arkansas.

In construing Nebraska’s analogous provision, the Nebraska Supreme Court considered Neb. Rev. Stat. § 29-734 (Ark Code Ann. § 16-94-206). The Nebraska Supreme Court noted mandatory extradition under U.S. Const, art. 4, § 2, and then stated,

By contrast, under Section 29-734, the governor may surrender on demand any person charged with committing and act intentionally resulting in a crime in the demanding State, that is, it is discretionary. The governor of the asylum State is afforded discretion to accept or reject the demand in non-fugitive situations.

Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991). See also, In re Extradition of Adams, 63 Ohio App. 638, 579 N.E.2d 752 (1989). Mississippi has ruled similarly.

In Kennon v. State, 248 Kan. 515, 809 P.2d 546 (1991), cited by Fullerton, the'Kansas Supreme Court considered K.S.A. 22-.2706 (Ark.Code Ann. § 16-94-206). The writ was granted where it was shown that Kennon was in Kansas at the time of the acts complained of and that the State of Alabama and the governor of Kansas were acting based on a belief that Kennon was a fugitive and extradition was being pursued under mandatory extradition as provided by the U.S. Constitution. Kennon’s proof that he was not in Alabama defeated the requirement that he be a fugitive. The State argued permissive extradition under K.S.A. 22-2706, but it was not allowed because although some supporting documents acknowledged Kennon was in Kansas at the time of the acts, the governors were proceeding under mandatory extradition which required Ken-non to be a fugitive. The Kansas Supreme Court noted K.S.A. 22-2706 (Ark. Code Ann. § 16-94-206) provided discretionary extradition. Kennon, supra, at P. 2d 550. Thus, other State courts considering the language similar to Ark. Code Ann. § 16-94-206 have found it to be discretionary and that it applies to non-fugitives accused of crimes.

In the instant case, based on our analysis of the Tennessee requisition, the supporting documents, and Governor Huckabee’s warrant, we hold that appellant need not be a fugitive from Tennessee in order for extradition to proceed pursuant to Ark. Code Ann. § 16-94-206. This is a discretionary extradition, and the executive authority of Arkansas has exercised that discretion in favor of extradition. Fullerton alleges that he may not be extradited because he is not a fugitive from Tennessee. He contends that he was not in Tennessee when the crime was committed and thus cannot be extradited. Fullerton errs by conflating the fugitive requirement of the federal mandatory extradition with the discretionary extradition authorized by Ark. Code Ann. § 16-94-206. Fullerton is not a fugitive, but he may still be extradited if he is found to be a non-fugitive accused of committing an act in Arkansas intentionally resulting in a crime in Tennessee.

Identification

Fullerton also contends that the demand from the Governor of Tennessee and the rendition warrant from Governor Huckabee identified him as “F. Baker Fullerton, III, a/k/a Baker Fullerton” when his real name is “S. Baker Fullerton, III.” He argues that the documents therefore identified the wrong person and cannot be the basis for his extradition. Fullerton’s testimony at the habeas corpus hearing revealed Fullerton is commonly known as “Baker Fullerton” and that no other Baker Fullerton has ever been involved in Fullerton Motors. Further, there was testimony that the name on the investigative files in Tennessee was “S. Baker Fullerton, III,” and that the “F. Baker Fullerton, III” on the requisition papers and warrant must have been a typographical error. The record also reveals Tennessee authorities provided Arkansas with Fullerton’s birth date, social security number, height, and weight. Additionally, Arkansas County Deputy Robert Rowe testified that he knew Baker Fullerton, understood that he was to serve Baker Fullerton with the warrant, and that he did serve Baker Fullerton.

In Smith v. Cauthron, Sheriff, 274 Ark. 435, 631 S.W. 2d 10 (1982), the appellant fought extradition by seeking a writ of habeas corpus. On appeal, appellant contended that he had not been properly identified because his date of birth and social security number were incorrect on an information sheet and arrest report. We held that the minor errors in the birth date and social security number were caused by appellant. Further, the court considered Smith’s admission that he worked at the location where the crime was committed substantial evidence which could be used to determine that he was indeed the man named in the warrant. Given the facts in the instant case, we hold that the evidence adduced at the hearing below as to Fullerton’s identity provided more than substantial evidence that he was the person sought in the requisition. Based on the foregoing, we affirm the trial court’s denial of Fullerton’s petition for habeas corpus.

Affirmed.

       United States Constitution, Article 4, section 2, clause 2, provides, “A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.”

       Adams while living in Ohio refused to allow visitation in violation of a California court order entered before Adams relocated from California to Ohio. Child custody and visitation rights were established in California prior to Adams departure. Adams was charged with a penal code violation in California, and the Governor of Ohio issued a warrant for her arrest and extradition. The Ohio Court of Appeals considered R.C. 2963.06 (Ark.Code Ann. § 16-94-206) and found that under that statute, “fugitivity is not at issue.” Adams, supra.

       In State v. McCurley, 627 So.2d 339 (Miss.1993), the McCurleys petitioned for a writ of habeas corpus where it was alleged that they passed a bad check in Louisiana while in Mississippi. Their daughter took the check and delivered it in Louisiana. The trial court granted the writ finding the McCurleys were not fugitives. On appeal the Supreme Court of Mississippi noted a Mississippi statute which provides that the Governor may surrender a person who is charged with committing an act in Mississippi which intentionally results in a crime in another State. Mississippi has not adopted the Uniform Criminal Extradition Act. However, the language is very similar to our own statute. The Mississippi Supreme Court found that the language of their statute apphed to “non-fugitives,” or in other words persons not present in the State at the time the crime is committed and that the language recognizes a theory of “constructive presence.” State v. McCurley, supra, at So.2d 343.


author: PER CURIAM. motion for

text:
    Jerry Shelton DYE v. STATE of Arkansas
    CR 99-1023
    3 S.W.3d 291
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Ben Beland, for appellant.
    No response.
   PER CURIAM. motion for

Jerry S. Dye, by his attorney, has filed a motion for rule on the clerk. His attorney, Ben Beland, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: PER CURIAM.

text:
    Dinzel Earl NORMAN v. STATE of Arkansas
    CR 98-582
    2 S.W.3d 771
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Richard R. Parker, Public Defender, for appellant.

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

Appellant, Dinzel Earl Norman, was con-IAM. by a jury of conspiracy to manufacture methamphetamine and conspiracy to manufacture marijuana. He was sentenced by the Newton County Circuit Court to a combined term of forty years in the Arkansas Department of Correction. We affirmed appellant’s conviction and sentence in Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). Subsequendy, appellant petitioned for postconviction relief pursuant to Ark. R. Crim. P. 37. After a hearing on appellant’s petition, the trial court determined that appellant had failed to show that his counsel’s performance was ineffective. Appellant has appealed that decision to us, raising three points of error. We find appellant’s first and third points require a remand to the trial court for specific written findings. Appellant’s second issue is affirmed.

In June 1993, Chesley Gordon, a confidential informant, contacted Investigator Lance King, of the Arkansas State Police. Mr. Gordon stated that he had made an arrangement with appellant to cook methamphetamine on appellant’s property in Newton County. Subsequently, officers of the Arkansas State Police and the Drug Enforcement Agency directed Mr. Gordon to go to appellant’s residence and begin the process of cooking the methamphetamine and notify them after the process had begun so that a search warrant could be obtained for appellant’s property. On June 25, 1993, Special Agent Steve Lowry of the Drug Enforcement Agency prepared an affidavit for search warrant on appellant’s property and presented it to the circuit judge who found that reasonable cause existed and issued a search warrant. The search warrant was executed, and officers seized numerous items of contraband including a clandestine methamphetamine lab found in a small camper trailer and sixty-five marijuana plants found growing on appellant’s property. At appellant’s trial, Mr. Gordon was a key witness for the State implicating appellant in the crimes. After appellant’s direct appeal, he filed a Rule 37 petition raising the claim of ineffective assistance of counsel based on several points. One point raised was that a conflict of interest existed involving his attorney and Mr. Gordon. Appellant asserted that his attorney, Mr. George Stone, had also been appointed as Mr. Gordon’s attorney and there was no order relieving Mr. Stone from his obligation.

At the Rule 37 hearing, Mr. Stone testified that he did not believe he was Mr. Gordon’s attorney at the time he was representing appellant. He said that he had been appointed to represent a number of people including Mr. Gordon on drug charges at that same time, but he filed motions to be relieved as counsel on those individuals. Mr. Stone testified that he would not have gone to trial for appellant if he had been representing Mr. Gordon because Mr. Gordon was a key witness against appellant. The prosecuting attorney also commented during the hearing that he did not consider Mr. Stone Mr. Gordon’s attorney because the prosecutor never negotiated with Mr. Stone for the testimony of Mr. Gordon.

In rejecting appellant’s conflict of interest claim, the circuit court found that Mr. Stone only represented Mr. Gordon for purposes of arraignment and shortly thereafter filed a motion to withdraw. Additionally, it was the court’s recollection that the motion was granted but that no order was entered reflecting the withdrawal. The court noted that there was no substitution of counsel for Mr. Gordon because the State indicated that it was not going to proceed on the charges against him. The court also observed that there was no indication from the record that Mr. Stone ever made another appearance with Mr. Gordon or ever represented Mr. Gordon in any capacity after Mr. Gordon entered his plea of not guilty. The trial court’s ultimate ruling, as it appears in the order, was that Mr. Stone was not representing Mr. Gordon at the same time he was representing appellant. The court did not make any finding in its order beyond the representation determination.

Appellant argues on appeal that the trial court erred in finding that Mr. Stone was not representing Mr. Gordon. In support of his argument, appellant contends that an order was never entered relieving Mr. Stone from his representation of Mr. Gordon. We agree.

We have repeatedly held that we will not reverse the trial court’s denial of postconviction relief unless the trial court’s findings are clearly against the preponderance of the evidence. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989). At the Rule 37 hearing, when addressing the conflict-of-interest issue, the trial court had a recollection that Mr. Stone had been relieved from his representation of Mr. Gordon. The court also noted that Newton County “is a case where docket entries are not routinely made and if there’s no substantial action taken in the case, then it may have been just a de facto removal of Mr. Stone from the case.” Also, the prosecutor commented at the hearing that he had not negotiated with Mr. Stone for the testimony of Mr. Gordon. However, appellant put forth evidence that clearly reflected that no hearing was held on appellant’s motion to be relieved and that no order was entered relieving counsel. It was also established that Mr. Stone remained Mr. Gordon’s attorney-of-record for almost a year after appellant’s trial when Mr. Gordon’s case was finally dismissed without prejudice.

Administrative Order Number 2 Dockets and Other Records provides in part that:

(a) Docket. The clerk shall keep a book known as a “civil docket,” a book known as a “chancery docket,” a book known as a “probate docket,” and a book known as a “criminal docket,” and a book known as a “juvenile docket,” and shall enter therein each action. Cases shall be assigned docket numbers in the order of filing and beginning with the first case filed each year in each court, the last two digits of the current year shall be entered, followed by a hyphen and the number assigned to the case, beginning with the number “1”. For further identification, the court may direct that the letters “CIV” or “CR” precede the docket number for cases filed in circuit court, that the letters “E”or “J” precede the docket number for cases filed in chancery court, and that the letter “P‘ precede the docket number for cases filed in probate court.
All papers filed with the Clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the Court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. Where there has been a demand for trial by jury it shall be shown on the docket along with the date upon which demand was made.
(b) Judgments and Orders. The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the Court may direct to be kept. The clerk shall denote the date and time that a judgment or order is filed by stamping or otherwise marking it with the date and time and the word “filed.”
(c)Indices. Suitable indices of the civil, criminal, chancery, juvenile, and probate docket and of every judgment or order referred to in Section (b) of this rule shall be kept by the clerk under the direction of the court.

This administrative order clearly provides that the clerk shall keep a docket and enter all orders and the substance of each order or judgment of the court. In addition, Administrative Order Number 4 Verbatim Trial Record requires a complete record of all contested proceedings unless waived on the record by the parties. It is undisputed that there was no waiver on the record in this case regarding the ruling on trial counsel’s motion to be relieved. It puts this court at a considerable disadvantage in reviewing points on appeal pertaining to unrecorded hearings or orders, when a verbatim record is not before us. Clearly, what is recollected by the court or counsel may have gaps and may be disputed by the participants. After reviewing this record, we find that the trial court’s decision that Mr. Stone was not representing Mr. Gordon but had been relieved is clearly against the preponderance of the evidence that is before us.

Based on our above decision, we note that the trial court did not consider nor does the trial court’s order display specific written findings with regard to whether counsel’s dual representation was an actual conflict of interest that adversely affected counsel’s performance. Thus, we remand this issue back to the trial court for an analysis under Cuyler v. Sullivan, 446 U.S. 335 (1980), and for specific written findings. In this respect, the rule in Cuyler provides that “to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, supra, at 350. If there is an actual conflict of interest, prejudice is presumed. Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990). In Simmons v. Lockhart, the court noted:

The conflict of interest, however, must be actual, not merely theoretical. Under the cases,, this appears to mean that there must have been some actual adverse effect on the defendant’s case. The mere fact, for example, that one of Simmons’s lawyers in the state trial court had previously represented a person later called as a prosecution witness against Simmons, does not suffice to entitle Simmons to relief. Simmons must show, in addition, that this dual representation made some difference, and that this difference was adverse to his defense. The difference, we take it, need not be so great as to meet the general Strickland standard (reasonable likelihood of a different result). But it must be an actual and demonstrable effect of the conflict, and not merely an abstract or theoretical one.

Id. at 378.

Next, appellant also argues that the trial court erred in declining to find counsel ineffective for fading to submit a plea offer in a timely manner.

We measure the effectiveness of trial counsel according to the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.

At the Rule 37 hearing, Mr. Stone testified that he discussed a plea bargain with appellant on more than one occasion. He specifically recalled relaying a plea offer to appellant in August of 1994. Mr. Stone said that appellant would become agitated when he would suggest a plea bargain. Appellant testified that he was made aware of a plea offer on September 2, 1994. Appellant said that Mr. Stone told him that there had been an offer of seven years with four suspended, but the State no longer wanted to extend the offer. Appellant asserted that that was the only offer communicated by Mr. Stone.

The trial court found that there was no substantial proof that Mr. Stone failed to submit a plea offer to appellant. Where the evidence is sufficient to support a ruling either way, it cannot be said that the trial court’s ruling was clearly against the preponderance of the evidence. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989). We recognize that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987); Huffv. State, 289 Ark. 404, 711 S.W.2d 801 (1986). Accordingly, we cannot say that the trial court’s decision was clearly against the preponderance of the evidence.

As his last point, appellant contends that the trial court erred in finding that counsel was not ineffective and that counsel put forth a vigorous defense. Specifically, appellant argues that counsel was ineffective for failing to object to the introduction of irrelevant and inflammatory testimony and photographs regarding firearms found at the crime scene. Here, the order of the trial court does not contain any written findings on this issue which was presented in appellant’s Rule 37 petition and addressed at the Rule 37 hearing. In Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), we made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held. Thus, we remand this issue for the trial court to enter specific written findings.

Reversed and remanded in part; affirmed in part.


text:
    Arthur RASH and Shirley Rash, by Connie S. France, Guardian Ad Litem v. Honorable Donald R. HUFFMAN
    99-1062
    2 S.W.3d 71
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Connie S. France, petitioner.

      Victoria K. Cochran-Morris, for Jeffrey Rash.

      Kent Coxsey, for Deborah (Rash) Jackson.
   PER CURIAM.

On September 13, 1999, the guardian ad litem, Connie S. France, for the two children in this matter, Arthur Rash, age 11, and Shirley Rash, age 10, filed a petition for writ of certiorari and stay and a motion to expedite our consideration of that petition. In her petition, the guardian urged that the chancellor hear the testimony of the children. She prayed that this court review the chancellor’s orders and stop the return of the children to Colorado. Her petition contained the following history of the case. The natural parents of the children, Jeff Rash and Deborah Rash, now Jackson, were divorced in 1997 in Carroll County. Deborah was awarded custody of the children and now fives with her new husband, John Jackson, in Colorado. According to the petition, the children were visiting their natural father in Arkansas and made allegations that they feared for their safety if they were forced to return to the home of Deborah and John Jackson. On July 19, 1999, the chancellor placed them in the custody of the Department of Human Services.

On July 20, 1999, after a hearing with all parties present or represented, the chancellor ordered the return of the children to Colorado conditioned on the Arkansas DHS satisfying itself that the children will be safe upon their return to Colorado and that the return was in the best interests of the children. No testimony was taken at that hearing.

On September 10, 1999, the chancellor entered an order without a prior hearing conducted with parties present or represented. That order stated that the Arkansas DHS, after consulting with the Colorado DHS, had assured him that the children would be safe in Colorado and that allegations of harm or danger in the Colorado home were unsubstantiated. The chancellor ordered that the children be picked up for their return to Colorado on September 11 or 12, 1999.

In a petition for emergency custody filed on September 13, 1999, in Carroll County Chancery Court, Ms. France contended that the conveyance of the information about the children’s safety by the Carroll County DHS supervisor to the chancellor was by an ex parte communication and without the knowledge of the DHS case worker assigned to the case or the DHS attorney or the petitioner.

By per curiam opinion dated September 16, 1999, we stayed the chancellor’s September 10, 1999 order and granted the parties twenty days to respond to the guardian ad litem’s petition for writ of certiorari. We further said that the stay did not bar the chancellor from conducting a hearing on this matter with all parties present to allow the parties and the children to be heard.

A response to the petition for writ of certiorari and stay has now been filed by Deborah Jackson. In her response, she contends that the chancellor did not act in excess of his jurisdiction and that certiorari does not He and that the guardian ad litem has included “hearsay, opinion, and belief’ in her petition based on matters outside the record that have never been presented to the chancellor. Jeff Rash also filed a response in this matter where he prayed that this court grant the writ of certiorari to the chancellor, review his orders, and stop the return of the children to Colorado. He further urged that a hearing be held before the chancellor with the partidpation of all parties, including the guardian ad litem for the children.

There is nothing to indicate in the record before us that the chancellor conducted such a hearing between the date of our original per curiam opinion and today’s date. Accordingly, we treat the petition for certiorari filed by the guardian ad litem as a petition for mandamus and direct the chancellor to conduct a hearing on this matter forthwith for the purpose of taking testimony from the parties and the children. See Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992); Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977).

We further observe from our review of the transcript of the July 20, 1999 hearing that strong feelings were expressed by the chancellor with respect to the performance of the guardian ad litem, Ms. France. It may well be that in light of these feelings, the chancellor will want to consider recusal. See City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Patterson v. R.T., 301 Ark. 400, 784 S.W.2d 777 (1990).

Writ of mandamus issued.


text:
    James SLACK v. STATE of Arkansas
    CR 99-809
    3 S.W.3d 291
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Kenneth G. Fuchs, for appellant.
    No response.
   PER CURIAM.

Appellant James Slack filed a motion for IAM. appeal. We previously denied the motion because Appellant’s attorney, Kenneth G. Fuchs, did not admit fault in failing to file a timely notice of appeal. See Slack v. State, 338 Ark. 643, 999 S.W.2d 668 (1999)(per curiam). We indicated, however, that we would grant the motion if Appellant’s attorney filed an affidavit accepting full responsibility for failing to file a timely notice of appeal. Appellant’s attorney has assumed full responsibility for the error in an affidavit filed October 8, 1999.

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); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: WH. “Dub” Arnold, Chief Justice.

text:
    Adrian Juergen ZAWODNIAK v. STATE of Arkansas
    CR 99-594
    3 S.W.3d 292
    Supreme Court of Arkansas
    Opinion delivered October 28, 1999

      William R. Simpson, Jr., Public Defender; Jeffrey A. Weber, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Justice.

Appellant, Adrian Juergen sticbrings e. interlocutory appeal from the Pulaski County Circuit Court’s denial of his motion to dismiss a simultaneous-possession-of-drugs-and-firearm charge, pursuant to Article 2, section 8, of the Arkansas Constitution. The instant case presents the second appeal in this matter, following our decision in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997), cert, denied, 118 S. Ct. 1072 (1998). Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2 (a)(1), (7) (1999).

In 1995, Zawodniak was charged with (1) simultaneous possession of drugs and a firearm, and (2) possession of drug paraphernalia. However, following a bench trial on March 11, 1996, he was found guilty of (1) possession of a controlled substance, and (2) possession of drug paraphernalia. We held in Zawodniak that the trial court erred by engrafting an element of proof not required under the simultaneous-possession statute and by granting appellant’s directed-verdict motion with respect to that charge. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).

In light of the trial court’s error in the first appeal, we also considered Zawodniak’s argument that his retrial on the simultaneous-possession charge would be barred by federal and state double-jeopardy provisions. We concluded that appellant’s retrial would not violate the double-jeopardy provisions, and we noted that retrial was warranted where the trial court applied an erroneous law because the defendant would be afforded the opportunity to obtain a fair adjudication of guilt. Zawodniak, 329 Ark. at 185, 946 S.W.2d at 939.

During the retrial in circuit court, Zawodniak again moved for dismissal on double-jeopardy grounds. After hearing arguments, Special Judge Willard J. Proctor determined that the trial court was bound by our prior decision in Zawodniak and, in an order dated February 19, 1999, denied appellant’s motion to dismiss. From that order comes the instant appeal. We find no merit in appellant’s argument, and we affirm the trial court’s decision based upon the law-of-the-case doctrine.

Law-of-the-case doctrine

Appellant’s sole point in this interlocutory appeal challenges the trial court’s denial of his motion to dismiss and, specifically, its finding that his pending felony prosecution for simultaneous possession of drugs and a firearm is not barred by the Arkansas-constitutional prohibition against double jeopardy nor by Ark. Code Ann. section 5-1-112 (Repl. 1997). See Ark. Const, art. 2, § 8. Significantly, an order denying a motion to dismiss based upon double-jeopardy considerations is an appealable decision. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). In the instant appeal, Zawodniak merely reargues his previous challenges to his prosecution for simultaneous possession of drugs and a firearm. He contends that a retrial would violate the protection afforded him by the Double Jeopardy Clauses of the United States and Arkansas Constitutions. The Double Jeopardy Clause protects a defendant from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997) (citing Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997) (citing Schero v. Farley, 510 U.S. 222 (1994))).

Notably, appellant concedes that he sought dismissal on identical grounds in the original appeal of this case, namely, that retrial would violate both his federal and state constitutional rights. In response to the appellant’s renewed state constitutional objections, the State contends that our review of these arguments is barred by the law-of-the-case doctrine. We agree.

The doctrine of the law of the case provides that the “decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255, 256 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). Although we noted in Washington that the doctrine is not inflexible and does not absolutely preclude error, we have also held that the doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” See Washington, 278 Ark. at 7, 643 S.W.2d at 256 (citing Ferguson v. Green, 266 Ark. 556, 557, 587 S.W.2d 18 (1979)); see also Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588 (1994). We adhere to this doctrine to preserve consistency and to avoid reconsideration of matters previously decided. Fairchild, 317 Ark. at 170, 876 S.W.2d at 591. Significantly, the law-of-the-case doctrine extends to issues of constitutional law. Id. (citing Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976), cert, denied, 430 U.S. 931 (1977)); see also Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).

Although the majority in Zawodniak did not specifically address the state constitutional argument, we examined the merits of all of appellant’s double-jeopardy arguments in the first appeal, and our ruling was adverse to appellant. Moreover, Justice Newbern’s concurring opinion demonstrates that the court considered appellant’s state double-jeopardy arguments. Specifically, Justice Newbern noted that:

Mr. Zawodniak has urged that a retrial would violate his double-jeopardy rights under both the United States Constitution and the Arkansas Constitution, but he has neither argued that the latter affords greater protection than the former nor presented us with any other “independent and adequate state ground” on which to decide this case.

Zawodniak, 329 Ark. at 190, 936 S.W.2d at 942 (J. Newbern, concurring) (citing Michigan v. Long, 463 U.S. 1032 (1988)). Similarly, Justice Newbern’s comment reflects that the majority implicitly considered the merits of appellant’s statutory challenge, pursuant to Ark. Code Ann. § 5-1-112 (Repl. 1997). Section 5-1-112 codifies constitutional double-jeopardy principles and affords no greater protection than the constitutional prohibition.

In light of the foregoing, our consideration of identical issues in the prior appeal makes our holding in Zawodniak the law of the case as to this subsequent appeal. See Mauppin v. State, 314 Ark. 566, 567, 865 S.W.2d 270, 270 (1993); Henderson v. State, 311 Ark. 398, 401, 844 S.W.2d 360, 362 (1993). Moreover, there is neither an allegation for correction of an error nor of evidence that materially varies from the prior appeal. Zawodniak merely reargues the merits of his former constitutional challenges, which we considered and rejected. Pursuant to the law-of-the-case doctrine, we conclude that the appellant’s arguments provide no basis for relief in the instant appeal. Accordingly, we decline to reach the merits of appellant’s remaining arguments, and we affirm.


author: ROBERT L. Brown, Justice.

text:
    William S. WARREN, Jr., and Rebecca K. Warren v. Douglas Wayne KELSO d/b/a The Kelso Firm; Burney Whitfield and Meyers Realty Company; and John W. Jacobs and Shirley Jacobs
    98-1540
    3 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered October 28, 1999

      Brown, Schwander, Greene & Sloan, P.L.C., by: L. Howard Schwander, III, for appellants.

      D. Scott Hickam; Don M. Schnipper; and Richard H. Wooton, for appellees.
   ROBERT L. Brown, Justice.

Appellants William S. Warren stice. appeal the taxing of certain costs by the trial court pursuant to Ark. R. Civ. P. 41(d), after the Warrens exercised their right to take a voluntary dismissal under Ark. R. Civ. P. 41(a), and then filed a second action involving the same parties and the same causes of action. Specifically, the Warrens contend that the second action was not vexatious or based on improper motives. They, additionally, contest the expenses which the trial court awarded as costs. Because the Warrens have not appealed from a final order under Ark. R. App. P. Civil 2 or obtained a certification from the trial court under Ark. R. Civ. P. 54(b), we dismiss the appeal without prejudice for lack of finality.

The relevant facts are that the Warrens sued the appellees for breach of contract, negligence, and fraud relating to alleged structural and mechanical defects in their purchased home. Appellee Kelso then filed third-party complaints against certain subcontractors. The case was tried to a jury for two days, and after the trial court disallowed the testimony of the Warrens’ expert witnesses on damages, the Warrens moved for a voluntary dismissal under Rule 41(a). The voluntary dismissal was granted. Less than two months later, the Warrens filed a second action involving the same parties and causes of action. The appellees sought an award of the costs they incurred in the first action, including attorney fees. The trial court excluded attorney fees and ordered the balance of the costs requested in the amount of $2,509. In the same order, the trial court stayed the Warrens’ second action until the costs were paid. The Warrens paid the awarded amount of $2,509 into the Registry of the Court, and the trial court ordered the amount distributed to the appellees and lifted the stay. This appeal followed.

The appellees contest the propriety of this appeal and charge that the trial court’s order for costs and a stay does not fall within any of the categories of appealable matters set out under Ark. R. App. P. Civil 2. The Warrens counter that the trial court’s order is final on the issue of costs under Rule 41(d). Moreover, they claim that the trial court’s stay of their second action pending payment of the costs is an interlocutory order for an injunction, which is appealable under Ark. R. App. P. Civil 2(a)(6).

We address the claim that the stay equates to an injunction under Rule 2(a)(6) first. In Arkansas Department of Human Ser. v. Hudson, 338 Ark. 442, 994 S.W.2d 488 (1999), the Department of Human Services appealed a trial court’s second stay of its decision to revoke the appellee’s child-care license. We held that the second stay order was not an injunction for purposes of appeal and distinguished a procedural stay from an injunction as follows:

An injunction is a command by a court to a person to do or refrain from doing a particular act. See Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989); C. Jacobson, ARKANSAS CHANCERY PRACTICE 68 (1940). It is mandatory when it commands a person to do a specific act, or prohibitory when it commands him to refrain from doing a specific act. Tate, supra. The mere fact that a trial court orders something to be done in the progress of a case does not make that order a mandatory injunction. Tate, supra; Butler v. State, 311 Ark. 334, 842 S.W.2d 434 (1992). To be injunctive, the order must determine issues presented in the complaint, not merely aid in the determination of such issues. Tate, supra; Butler, supra.

338 Ark. at 444, 994 S.W.2d at 489. We concluded that the second stay order resolved none of the issues presented to the trial court, and we dismissed the appeal. The Hudson decision is clear that a stay of proceedings does not translate into an injunction.

We further disagree with the Warrens that the trial court’s decision on the peripheral issue of costs under Rule 41(d) is the kind of final order contemplated by Ark. R. Civ. P. 2(a)(2). The Warrens maintain that their appeal may be taken under Rule 2(a)(1) because the order was final on costs or Rule 2(a)(2) because the order determined the action and prevented a judgment from which an appeal might be taken, or, alternatively, discontinued the action. They argue that after the trial court’s order on costs and the stay, their options were (1) pay the costs imposed on them so that the second action could move forward, or (2) not pay the costs and be subject to contempt of court. Thus, because of the trial court’s order, their case was discontinued in effect, and they were enjoined from proceeding to judgment.

Again, we disagree. In Doe v. Union Pacific Railroad Co., 323 Ark. 237, 914 S.W.2d 312 (1996), we discussed Rule 2(a)(2) and said:

We have interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. The order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it.

Id. at 240, 914 S.W.2d at 314; see also Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999); Haase v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). We went on to hold that “[t]he [trial] court’s ruling was on a preliminary matter, unconnected with the merits of the litigation. The order cannot be considered as ending a separable branch of the litigation.” Doe, 323 Ark. at 240, 914 S.W.2d at 314. Similarly, the order awarding costs and the stay in the instant case are preliminary matters and did nothing to end the litigation or a separable part of it. The Warrens paid the amount for costs into the Registry of the Court, and the second complaint of the Warrens remains to be resolved. We conclude that the order in the instant case is not final for purposes of Rule 2(a)(1) or Rule 2(a)(2).

Nor does the order for costs and the stay qualify for appeal under Ark. R. Civ. P. 54(b). It is obvious that the various claims for relief sought by the Warrens have not been resolved, and this court has a longstanding policy against piecemeal appeals. McGann v. Pine Bluff Police Dep’t, 334 Ark. 352, 974 S.W.2d 462 (1998); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). The Warrens did move for a Rule 54(b) certification from the trial court that an appeal was warranted because there was no just reason for a delay, but they failed to pursue their motion and obtain the necessary certification. It was their obligation to do so, if they intended to rely on a Rule 54(b) certification to have jurisdiction in this court. The Warrens do contend in this regard that after thirty days had run from the date that their motion for a Rule 54(b) certification was filed, the motion was deemed denied by the trial court, and that amounts to a ruling on certification. That contention, however, is incorrect because only those motions set out in Ark. R. App. P. Civil 4(b)(1) are subject to the deemed-denied principle. A motion for a Rule 54(b) certification clearly does not qualify.

More importantly, an order for costs is not what is contemplated by Rule 54(b). That rule reads in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. (Emphasis added.)

A defendant’s motion for costs under Rule 41 (d) is not a claim for relief presented in an action as Rule 54(b) requires.

Appeal dismissed without prejudice.

       This court recognizes that there is a mootness issue in this case, but we choose not to address it in light of the fact that we are dis missing this appeal without prejudice for lack of finality.