author: Donald L. Corbin, Justice.

text:
    Eddie Lavell PARKER v. STATE of Arkansas
    CR 97-1195
    968 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered May 7, 1998

      Mike Everett, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Eddie Lavell Parker appeals the judgment of the Craighead County Circuit Court convicting him of one count of capital murder and one count of first-degree murder and sentencing him to life imprisonment without parole. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

The record reflects the following facts. On December 14, 1996, at approximately 9:45 p.m., Jerome Pfeifer and Anthony Seaborn were shot while sitting in Pfeifer’s 1984 Cadillac at the intersection of Hope and Patrick Streets in Jonesboro. A 911 call from 1000 Hope Street at 9:45 p.m. alerted the police to the shootings. A second caller reported the shootings from 304 Patrick Street. The Jonesboro Police Department dispatched Officer Jim Milam, who arrived at the scene of the crime immediately after the first 911 call to find Pfeifer’s empty car where it had run upon the curb.

Pfeifer, who had been in the driver’s seat, was shot once in the left side of his nose, once in his right wrist, and six times in his back and left shoulder. Robert Hurd, a bystander who knew Pfeifer, drove Pfeifer along with Pfeifer’s friend, Freddie Trice, to the hospital in Hurd’s car. Pfeifer was pronounced dead on arrival at the hospital. The Arkansas State Crime Laboratory determined that the cause of Pfeifer’s death was multiple gunshot wounds, and that at least one of the bullets was inflicted at close range.

The second 911 call was made from 304 Patrick Street where Seaborn had collapsed in the yard in an attempt to walk away. Seaborn, who had been in the passenger seat of Pfeifer’s car, received two gunshot wounds in his left leg and hip area, and two wounds in his lower left back area before exiting Pfeifer’s car. Officer Milam found Seaborn and had him taken to St. Bernard’s Hospital by ambulance. Seaborn died one week later. The State Crime Laboratory determined that the cause of Seaborn’s death was also multiple gunshot wounds.

Appellant was arrested on December 16, 1996, two days after the shootings, and was subsequently charged with two counts of capital murder pursuant to Ark. Code Ann. § 5-10-101 (Supp. 1995). The trial began on June 19, 1997.

Lieutenant B.J. Smith, of the Jonesboro Police Department, testified that Appellant became a suspect based on statements he took at the scene from bystanders and neighborhood residents who had observed the shootings. Lieutenant Smith recovered two .9mm shell casings, one jacketed bullet, and a .9mm round from the immediate and surrounding area. Lieutenant Smith testified that he arrested Appellant as Appellant and his brother Derrick Scales drove into the driveway of the apartments where Scales lived. Smith further testified that at the time of his arrest, Appellant was dressed in a long, dark, almost black coat and tennis shoes. Smith also testified that there was $7,783 cash in Scales’s car at the time of the arrest.

Robert Lewis testified that Pfeifer and Seaborn, “or whatever his name was,” told him that they had robbed Appellant’s girlfriend Sylvia “Michelle” Gates, taking all of Appellant’s drugs and some money. Lewis testified that he had been standing on the driver’s side of Pfeifer’s car with Anthony Trice, but that he had gone across the street at the time of the shootings. Lewis further testified that after hearing gunshots, he heard Anthony Trice call Appellant’s name. Lewis also stated that after the shootings, he saw smoke and saw Seaborn hit the ground. Lewis testified that he saw a guy in a ski mask running away from the scene toward McDaniel Street.

Anthony Trice, who was talking with Pfeifer and standing by the driver’s side of Pfeifer’s car at the time of the shooting, identified Appellant as the shooter. Trice testified that he had known Appellant for about ten years and had seen Appellant earlier on the day of the shooting near Trice’s aunt’s house. Trice identified Appellant’s Fila tennis shoes, which he saw Appellant wearing both times he saw Appellant on December 14, 1996. Trice described Appellant as wearing a black ski mask with eyeholes at the time of the shooting. Trice testified that Appellant walked up to the car where the victims were. Trice stated that he had turned around, heard shots, and turned back around to see Appellant “up in the car.” Trice testified that he said, “[W]hat are you doing, Eddie?”, and that Appellant looked at him and left. Trice testified that he was “real close” to the victims at the time they were shot, and that he saw Appellant run toward McDaniel Street immediately after shooting Pfeifer. Trice testified that he later saw Appellant when Trice went to help Seaborn. Trice further testified that he saw Appellant driving a brown, “raggedy-looking” Cadillac as it turned from Creath Street to the north on Patrick Street. Trice stated that Appellant did not have on the mask as he drove away, and that Appellant’s hair looked wild. Trice stated that he knew the shooter was Appellant, because he had known him for a long time and he knew “the way he walked, he talked, and everything.” Trice stated that he also observed Appellant’s eyes through the holes of the ski mask. Trice further identified Appellant’s clothing as the same clothing he had worn earlier on the day of the shootings. Trice testified that Appellant’s brother, Derrick Scales, had offered a number of times to pay him $4,000 to change his testimony.

Freddie Trice, Anthony’s cousin, testified that Appellant and Pfeifer had a conversation in his and Lindsay McCullough’s presence at about three o’clock on the afternoon of December 14, 1996. Trice further testified that Appellant approached Pfeifer on Creath Street and asked him how he could get “10 ounces.” Trice testified that Appellant said he would pay for the purchase “right now” if Pfeifer could deliver immediately. When Pfeifer responded that he could deliver, Appellant asked Pfeifer if Pfeifer would be taking his “home boys” with him (to get the drugs), referring to Freddie Trice and McCullough. Trice testified that when Pfeifer said that he would, Appellant stated that Pfeifer could “forget about it,” and then left. Trice further testified that he, Pfeifer, and McCullough left in Pfeifer’s car to go to the convention center near Arkansas State University and to buy gasoline for the car. Trice stated that when the three men returned to the neighborhood, they stopped to talk to Seaborn for awhile. Trice further stated that Seaborn later got into the car with Pfeifer, and that Trice left for his home on Creath Street to get his phone for McCullough and some food for Seaborn. Trice testified that when he returned with the food, Pfeifer and Seaborn had left in Pfeifer’s car. Trice testified that he next heard gunshots, went back to his house, then ran back outside to help Pfeifer. Freddie Trice heard Anthony Trice “hollering.” Freddie Trice testified that he held Pfeifer in his arms as Robert Hurd picked up the two men in his car and drove them to the hospital.

Nathaniel Anderson testified that on the day before the shootings, he and Appellant had a conversation at the corner of Fisher and Creath Street. Anderson testified that Appellant drove up in his blue Geo Metro, asking where “Mistro” was, referring to Pfeifer. Anderson further testified that he told Appellant he did not know, then Appellant told Anderson to tell Mistro “that I got him.” When the State asked what that phrase implied to Anderson, Anderson indicated that it was a threat.

Janice Dollison testified that she had seen Appellant the day before the shootings occurred. Dollison further testified that she had heard Appellant threaten to kill someone at that time. Dollison testified that she saw Appellant on the night of December 14, 1996, at the corner of Hope and Baker Streets, approximately thirty minutes or an hour before the shootings. Dollison described Appellant as dressed in jeans and a jacket and identified the jacket he wore as similar to the black jacket shown to her by the prosecutor. Dollison stated that she later went down to the corner of Hope and Patrick Streets, where she saw Appellant wearing the same clothes as before and the ski mask. Dollison further stated that she had seen Pfeifer and Seaborn sitting inside the car and Appellant coming up Patrick Street towards Hope Street. She further testified that when Appellant got to Pfeifer’s car, Appellant and Pfeifer exchanged words, then Appellant pulled a gun out of his pants. Dollison testified that after the shootings, Appellant put the gun back in his pants, went down the street toward McDaniel Street, and got into a car. Dollison further testified that both Derrick Scales and Appellant’s uncle, Willie Tinsley, had threatened her to change her original statement, and that Scales had offered to pay her money to testify in Appellant’s favor.

Kenny Ray Pickett testified that he was driving through the area on the night of December 14, 1996. Pickett further testified that he heard the gunshots and circled back around McDaniel Street. Pickett testified that he saw Appellant walking without the ski mask and getting into a vehicle. Pickett described Appellant as wearing dark clothing and identified Appellant’s Fila shoes. Picket maintained that he knew Appellant and had no doubt that it was Appellant that he saw that night.

Appellant’s defense was that he was at James Carter’s house on the night of the shootings until about 10:00 p.m., before picking up Sylvia Gates at work. On cross-examination, Appellant maintained that Janice Dollison, Anthony Trice, Freddie Trice, Kenny Ray Pickett, and Nathaniel Anderson were all liars, but that he did not know why those persons would lie about him. Appellant further testified that he knew the police were looking for him after the shooting, and he sought advice from an attorney. Appellant admitted he had a conversation with Pfeifer about buying an “eight-ball” of “dope” from Pfeifer.

Sylvia Gates testified that on December 14, 1996, she worked from 2:00 p.m. until 10:00 p.m., and that Appellant drove her blue 1989 Geo Metro that day. On cross-examination, however, Gates admitted that she did not know of Appellant’s whereabouts before he picked her up from work.

Appellant’s brother Derrick Scales testified that he had helped Appellant’s attorney investigate Appellant’s case. Scales admitted that he had approached Dollison and Anthony Trice after reading their statements. Scales further admitted that he had sent Appellant over to Carter’s to collect about $30 that Carter owed Scales, after hearing about the two shootings. When confronted with the cash that was in Scales’s car at the time of Appellant’s arrest, Scales responded that the money was to enable him to hire an attorney for Appellant.

Following the presentation of the evidence, the jury rendered a guilty verdict for capital murder of Pfeifer, a guilty verdict for first-degree murder of Seaborn, and sentenced Appellant to life imprisonment without parole. The trial court entered its judgment on June 25, 1997. Appellant timely filed notice of this appeal on July 10, 1997. He raises four evidentiary errors for reversal.

We review evidentiary errors under the abuse-of-discretion standard. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996). The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id. The jury alone determines the credibility of the witnesses and apportions the weight to be given to the evidence. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). The jury also resolves any questions of conflicting testimony and inconsistent evidence. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).

I. Expert Testimony

Appellant first argues that the trial court erred when it refused to admit Dr. Marc Zimmerman’s testimony. Dr. Zimmerman, a forensic psychologist, would have testified about the unreliability of eyewitness testimony. Appellant included a summary of Dr. Zimmerman’s testimony in a motion in Hmine to the trial court. The trial court found that Dr. Zimmerman’s testimony was a matter of common knowledge and would not assist the jury. The trial court asked Appellant’s attorney what Dr. Zimmerman’s testimony would accomplish that cross-examination of the eyewitnesses would not. Counsel for Appellant maintained that Dr. Zimmerman would testify about the effect of stress and expectations on eyewitnesses. The trial court found this argument unconvincing and specifically found that it would not be helpful, because the jury did not need an expert to testify about the obstacles of identifying a suspect wearing a ski mask.

On appeal, Appellant asserts that the expert testimony was necessary, because he claims that the State’s case was based entirely on the eyewitness testimony of Anthony Trice and Janice Dollison. Appellant concedes, however, that the trial court has discretion in the admissibility of expert-witness testimony, which will not be reversed absent an abuse of discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992).

Arkansas Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [Emphasis added.]

This court has emphasized that the balancing test of Rule 702 is separate from that of A.R.E. Rule 403, in which the trial court determines if the prejudicial value of the evidence substantially outweighs its probative value. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Under Rule 702, the trial court must determine whether the evidence is likely to confuse or mislead the jury. Id. The proponent of the evidence bears the burden of proof. Id.

A critical factor in determining the admissibility of expert testimony is whether the facts and circumstances of the case are beyond the jury’s ability to comprehend and draw its own conclusions. Utley, 308 Ark. 622, 826 S.W.2d 268. In Utley, this court held that the trial court did not abuse its discretion by excluding testimony similar to Dr. Zimmerman’s testimony regarding the unreliability of eyewitness testimony. The eyewitness in Utley testified that she looked at the appellant’s face for a maximum of thirty seconds, due to her extreme fright. In affirming the trial court’s decision not to admit the expert testimony, this court considered important that the defendant had cross-examined the witness; that the expert’s testimony would not aid an average-intelligent juror; and that the prejudice would have far outweighed any probative value of the testimony. This court agreed that the expert testimony would not have been helpful to the jury and would have, in fact, usurped the jury’s role as the trier of fact. This court also noted that the vast majority of jurisdictions had upheld decisions excluding this type of expert testimony. See also Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993).

Appellant further argues that we should allow the admission of his expert’s testimony as was done in State v. Chapple, 660 P.2d 1208 (Ariz. 1983) and People v. McDonald, 690 P.2d 709 (Cal. 1984). This court ultimately rejected similar arguments in Utley. We note that even in McDonald, the California appellate court discussed that testimony about the unreliability of eyewitnesses is within the trial court’s realm of discretion. Appellant further argues in his reply brief that this court’s rulings in Utley and Jones mandate that we reverse on this issue. Appellant also refers to this court’s “blind adherence to precedent,” essentially arguing our accepted rule that expert testimony is admissible if it is helpful to the trier of fact. As discussed above, this court has consistently rejected Appellant’s out-of-state authority. We decline once more to adopt those cases.

Furthermore, we reject Appellant’s argument that the State’s case was based solely on Anthony Trice’s and Janice Dollison’s eyewitness accounts of the shootings. In addition to their eyewitness testimony of the shootings, Anthony Trice testified that he had known Appellant for about ten years, and that he recognized Appellant both with and without the mask. Kenny Ray Pickett testified that he knew Appellant and recognized him without the mask on McDaniel Street after hearing the gunshots. Appellant cross-examined all of these witnesses. Appellant also argued the credibility of the witnesses in closing argument. Accordingly, we conclude that the trial court did not abuse its discretion in excluding Dr. Zimmerman’s expert testimony.

II. Ski-Mask Demonstration

Appellant’s second argument is that the trial court erred when it refused to allow him to wear a ski mask in front of the jury. During Anthony Trice’s cross-examination, Appellant attempted to introduce a rust-brown ski mask with holes for the eyes, nose, and mouth. The trial court sustained the State’s objection to Appellant wearing the mask because it was not substantially similar to the one described by the eyewitnesses and would therefore mislead the jury. The trial court’s ruhng is supported by Anthony Trice and Janice Dollison describing the ski mask that Appellant wore as black with eyeholes only. Appellant specifically contends that he was not able to cross-examine Trice about the size of the eyeholes in the mask, although he made no attempt to ask Trice about the size of the eyeholes or distinctive characteristics of Appellant’s eyes without demonstrating the mask. Appellant now argues that the exclusion of the ski mask deprived him of the opportunity to effectively impeach the witness’s credibility.

Appellant mistakenly relies on Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990), in which this court recognized that there are limits to a defendant’s right to cross-examine witnesses. This court held that the trial court should consider reasonable limitations such as harassment, prejudice, confusion of the issues, witness safety, repetition, and the relevance of the evidence. A substantial factor is whether the evidence is critical to the defense. Id. The trial court should not confuse effective cross-examination with “cross-examination that is effective in whatever way.” Id. at 309, 783 S.W.2d at 844. This court’s general rule is:

When a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the original occurrence.

Bowden v. State, 297 Ark. 160, 178, 761 S.W.2d 148, 157-58 (1988) (citations omitted) (emphasis added).

In Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995), this court upheld the State’s demonstration of a knife that was dissimilar to the knife used in the crime. This court, however, considered that the State specifically informed the jury of the differences between the two knives and made no attempt to deceive the jury of the knife’s origin. The State, in fact, informed the jury in great detail of how it purchased the knife used in the demonstration. This court concluded that based on those circumstances, there was no abuse of discretion. See also Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991) (requiring an adequate foundation for demonstrations using physical evidence).

Here, the rust-brown ski mask that Appellant sought to use as demonstrative evidence was not remotely similar to the one described by Anthony Trice and Janice Dollison. Moreover, the demonstration was not critical to the defense, as the trial court gave Appellant ample opportunity to cross-examine Anthony Trice without using the mask. Kenny Ray Pickett and Anthony Trice both identified Appellant without the mask immediately after the shootings. Anthony Trice further identified Appellant not only by his eyes but by his mannerisms, including the way he walked. Janice Dollison testified that she had seen Appellant earlier the same evening, wearing the identical clothes at the time of the shooting in addition to the mask.

The trier of fact may use all of the facts and circumstances to infer identification. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990). Appellant’s argument that the trial court has less discretion in limiting cross-examination for impeachment purposes is not persuasive. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, cert. denied, 429 U.S. 846 (1976). The jury has the sole authority to evaluate the credibility of witnesses. Wilson, 332 Ark. 7, 962 S.W.2d 805.

We hold that the trial court properly sustained the State’s objection that the ski-mask demonstration was prejudicial. We hold further that the trial court did not abuse its discretion in the trial court’s exclusion of the ski mask.

III. Attempted Drug Transaction

For his third argument, Appellant argues that the trial court erred by failing to exclude Freddie Trice’s testimony about the conversation between Appellant and Pfeifer about a potential drug transaction that transpired about six hours before the shootings. After conducting a hearing outside the presence of the jury, the trial court allowed the testimony, but cautioned Trice not to interpret or editorialize the conversation for the jury. Trice then recited the conversation in which Appellant approached Pfeifer about purchasing “10 ounces.”

The trial court has the discretion to determine whether prejudicial evidence substantially outweighs its probative value, and its judgment will be upheld absent a manifest abuse of discretion. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Evidence of other crimes is admissible under A.R.E. Rule 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or lack of mistake or accident. In Lee v. State, 327 Ark 692, 942 S.W.2d 231, cert. denied, 118 S. Ct. 572 (1997), we held that the trial court did not abuse its discretion by admitting a conversation about cocaine that the witness had with the appellant during a murder trial. This court explained:

[W]hen the purpose of evidence is toshow motive, anything and everything that might have influenced the commission of the act may, as a rule, he shown. The State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused’s state of mind.

Id. at 702, 942 S.W.2d at 235-36 (citations omitted) (emphasis added).

In Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 117 S. Ct. 1848 (1997), this court upheld the admission of conversations about a proposed drug transaction into evidence at the appellant’s trial for murder. This court concluded that circumstances connecting the perpetrator to the victim and revealing a possible motive were clearly relevant. This court further elaborated that the circumstances of the attempted drug transaction did not justify excluding the conversation that was otherwise relevant.

Freddie Trice’s testimony was highly relevant as to Appellant’s probable motive or lack thereof. The jury might also have inferred Appellant’s state of mind, intent, or plan from this testimony. Moreover, Appellant admitted that he had approached Pfeifer and inquired about buying an “eight-ball.” Appellant even used Freddie Trice’s testimony in his closing argument to suggest a lack of animosity between Appellant and Pfeifer. We therefore conclude that the trial court did not err by admitting Freddie Trice’s testimony.

IV. Prior Threat

For his final argument, Appellant argues that the trial court erred by failing to exclude Nathaniel Anderson’s testimony of his conversation with Appellant on the day of the shootings, in which Appellant instructed Anderson to tell Pfeifer that “I got him.” Appellant now attempts to argue on appeal that Anderson was incompetent and that his testimony was irrelevant. This was not, however, the basis for his objection below. The exchange at trial took place as follows:

Mr. Walden:
....
Q. He told you to tell Mistro what?
A. That he got him.
Q. That he got him?
A. Yeah.
Q. And what does that, what did that imply to you?
Mr. Everett: Whoa, whoa, whoa, what that implied in meaning to this man is not admissible evidence, Judge. He can say what the man said, it’s up to the jury to determine what that means.
Mr. Walden: Your Honor, now we sat through a day of Voir Dire about ebonies and this man is in that vernacular and he is talking to these people, and I think he’s entitled to say if he considered that a threat, or if he did not consider that a threat. I think he’s entitled to give his testimony on that.
Mr. Everett: I don’t think so, not this man. What this man thought of that, those words is [sic] not proper at all.
Mr. Walden: I’ll try to lay some foundation.
The Court: All right, go ahead and lay the foundation.
Mr. Walden:
Q. When he said this to you, he said tell him I got him, is that an accepted terminology among you and your culture and your friends, does that have a particular meaning?
A. Threat.
Q. Pardon?
A. It’s a threat.
Mr. Everett: I will object to that. The fact of what it means among his culture and his friends doesn’t mean that that’s what it means to Eddie Parker.
A. Well, can I say something?
The Court: Overruled, overruled.
....
Mr. Walden:
Q. Okay, let me go ahead. Now as I understand your testimony, you took that to be a threat?
A. A threat.
Q. And is that the way, in your opinion, is that how it was intended?
A. Yes, sir.

This court has repeatedly held that parties on appeal are limited to their arguments made below. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). One cannot change the basis for his or her objection on appeal. Id. Despite the procedural defect in this argument, we would still affirm the trial court’s ruling.

Arkansas Rule of Evidence 701 provides for lay-witness testimony:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

This court addressed similar lay testimony in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S. Ct. 1436 (1996), ultimately rejecting the appellant’s argument that testimony by two of the witnesses did not satisfy the requirements of Rule 701. Nooner asserted that neither of the two witnesses were sufficiently familiar with him to make an identification from a video surveillance tape and photographs. This court held:

Jazmar Kennedy had known Nooner for about three years and had seen him regularly. She had even lived in the same apartment with him for a period of time. Martin testified that he had seen Nooner on five or six occasions and had seen him just a few hours before the murder. Both witnesses recognized the jacket and cap in the videotape and photographs and associated the clothing with Nooner. These were special facts otherwise unknown to the jury. The two witnesses then positively identified Nooner as the man with Scot Stobaugh. We hold that these witnesses had ample contact with Nooner to develop opinions based on their perceptions and that the trial court did not abuse its discretion in permitting them to relay their opinions to the jury.
We next turn to the argument of whether this testimony was helpful to the jury. We believe that it was. The videotape and surveillance photographs are not crystal clear for identification purposes but are somewhat blurred and indistinct. Hence, any testimony from people who had a special familiarity with the suspect would qualify as an aid to the jury.

Id. at 102-03, 907 S.W.2d at 685 (citations omitted) (emphasis added). This court concluded that the two witnesses reasonably formed their opinions based on their previous association with the appellant, and that they were familiar with the appellant’s clothing and had sufficient time to observe him, giving them a special familiarity with the appellant.

Here, Anderson testified that he had a conversation with Appellant in person; thus, Anderson’s testimony was rationally based on his perception. Anderson had a special familiarity with the Appellant and was familiar with the neighborhood terminology. The foundation for the testimony aided the jury in determining the colloquial phrase and to prove Appellant’s motive. We conclude that Anderson’s testimony was helpful to the jury. Moreover, the jury was free to disregard Anderson’s testimony about what the phrase meant among the neighborhood residents. We also refute Appellant’s assertion that there was no other evidence of motive throughout the entire case. Janice Dollison testified about Appellant’s prior threats to kill someone. Freddie Trice testified about the aborted drug transaction. We thus hold that the trial court did not abuse its discretion when it allowed Anderson to testify about what the phrase, “I got him,” meant. Accordingly, we affirm on this final issue.

V. Rule 4-3(h)

We have reviewed the entire record for points of prejudicial error and conclude that there were no prejudicial errors or additional issues in this case. Accordingly, we affirm the trial court’s judgment in its entirety.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Robert Lee PAYNE v. STATE of Arkansas
    97-966
    968 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered May 7, 1998

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The sole issue in this appeal is whether appellant Robert Lee Payne should be saddled with storage fees for an automobile which was involved in the criminal charges brought against him for drug-related offenses. Payne contends that because one of the drug charges was nolle prossed, he should not be required to pay storage fees associated with the seized vehicle. We dismiss the appeal without prejudice due to the absence of a final, appealable order as required by Arkansas Rule of Appellate Procedure — Civil 2.

On January 16, 1997, Payne was charged by amended information with (1) possession of methamphetamine with intent to deliver, (2) possession of drug paraphernalia, and (3) illegal possession of firearms. The charges arose out of a January 11, 1997 stop-and-search of a 1977 Pontiac Firebird driven by Payne. According to the affidavit for the arrest warrant, Sergeant John Kelloms of the Caddo Valley Police Department stopped the 1977 Firebird because of expired license plates and obtained permission from Payne to search the vehicle. The search uncovered numerous items, including a brown vial containing an off-white substance believed to be methamphetamine, hemostats, rolling papers, pipes, syringes, and a revolver.

In April 1997, the prosecuting attorney moved to nolle prosse the charge for possession of methamphetamine with intent to deliver and illegal possession of firearms, and the circuit court granted the two motions. On April 28, 1997, Payne entered into an agreement with the State to plead guilty to the remaining drug-paraphernalia charge in exchange for a recommendation that he be sentenced to two years in prison. On June 26, 1997, the circuit court entered an order accepting Payne’s guilty plea and sentencing him to prison for two years.

The record reflects that on January 11, 1997, a 1977 Pontiac Firebird was seized by Sergeant Kefloms and transported to Kisling Automotive for storage. On April 14, 1997, Payne moved, pursuant to Ark. R. Crim. P. 15.2, for return of all property seized by the State that was not needed for evidentiary purposes. This property included the Firebird and its contents. Later, the State responded to a letter by Payne’s counsel and indicated that there was some question about who owned the Firebird.

At a subsequent hearing, the prosecuting attorney explained that the State did not want to release the Firebird to Payne when title to the vehicle was in a “Larry Hopkins,” who purportedly had endorsed the title over to a third party without a notarization. According to Payne, Hopkins had sold the vehicle to David Smith and Randy Givie of Givie’s Auto Salvage in Morrilton. Payne explained that he purchased the automobile from David Smith and that he used the vehicle while employed by Greg Warren of Warren Auto Sales in Hattiesville. Payne stated that he had not registered the car in his name for more than a year because Greg Warren allowed him to continue to use his dealership’s tags and insurance. Payne further explained that the 1977 Firebird was his vehicle, and he added that he first attempted to regain possession of it two days after his arrest.

During the hearing, Payne moved not only for a release of the vehicle and its contents but also that he not be held responsible for the accrued storage costs. He argued that because the State caused the vehicle to be stored at Kisling Automotive, the State should be responsible for the storage costs. In response, the State pointed to Payne’s arrest on charges for possession of methamphetamine with intent to deliver and his conviction for possession of drug paraphernalia, both of which were associated with the vehicle.

The circuit court ruled from the bench and ordered that the drug task force’s hold on the vehicle and its contents be removed and that physical possession of the title and registration be given to Payne’s counsel, with the understanding that counsel attempt to register the car in Payne’s name.

On June 19, 1997, the circuit court entered an order returning the items of personal property contained in the Firebird to Payne. The remainder of the order stated:

2. At the June 3, 1997 hearing, the Court terminated any hold or claim by the Drug Task Force against the automobile in which the Defendant was an occupant at the time of his arrest. The Court was requested to rule that the defendant was the owner of the vehicle in question. Flowever, this matter was not properly before the Court in the above styled criminal case. The ownership of the vehicle and the issuance of title to the vehicle is a civil matter which must be properly brought before a Court of competent jurisdiction in a separate proceeding.
3. The Court denies the defendant’s oral Motion and Request for cancellation of the storage charges for the vehicle in question. The defendant was properly charged and ultimately plead[ed] guilty to “Possession of Drug Paraphernalia” which was necessarily located in the vehicle in question where the defendant was arrested. The Drug Task Force properly seized the vehicle and the storage fee necessarily accrued on the vehicle. Therefore, in the event that the defendant perfects his claim to ownership of the vehicle, he will be required to pay any outstanding storage fees owed to Kisling Motor for the time that the vehicle has been stored.

(Emphasis added.) Payne appeals from this order.

Payne’s argument on appeal is that the trial court erred in assigning the storage costs to him because the crime for which he was convicted, possession of drug paraphernalia, did not support seizure of the automobile and the “original” drug charge against him had been nolle prossed. Though Payne’s standing to raise this issue may well be an issue in itself at any trial on the merits due to his apparent lack of ownership of the Firebird, we decline to reach this issue because we hold that the order appealed from is not a final, appealable order. This court has explained:

The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 304 Ark. 154, 787 S.W.2d 686 (1990). The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).

K.W. v. State, 327 Ark. 205, 207, 937 S.W.2d 658, 659-60 (1997). See also Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994).

In addition, this court has held on numerous occasions that an order that contemplates further action by a party or the court is not a final, appealable order. See, e.g., K. W. v. State, supra (order imposing conditions on a juvenile pending release prior to a plea date not final); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992) (order requiring appellant to execute a quitclaim deed to appellee or appear on a later date to show cause why a commissioner’s deed should not issue not final); Ragar v. Hooper-Bond Ltd. Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706 (1987) (an order stating that a money judgment is subject to further claims for expenses is not final).

This is particularly true when the trial court has reserved judgment on damages or failed to reduce a damage award to a liquidated sum. See, e.g., Office of Child Support Enforcement v. Oliver, 324 Ark. 447, 921 S.W.2d 602 (1996)(failure to resolve the amount of an arrearage); John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991)(bifurcating issues of liability and damages); Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967)(failure to resolve an award of damages).

In the instant case, the circuit court’s order on its face contemplates further legal action to perfect title in the Firebird. The circuit court’s order also does not reflect (1) the daily rate of storage at Kisling Automotive, (2) the number of days the 1977 Firebird was stored, and (3) a final, liquidated sum of costs to be charged to Payne. Clearly, a blanket determination that Payne must pay the storage costs would only invite a subsequent appeal regarding the amount of fees assessed. The proscription against piecemeal appeals renders this appeal deficient under Ark. R. App. P. — Civ. 2. Accordingly, this court is without jurisdiction.

Appeal dismissed without prejudice.

       In the record, Kisling Motor and Kisling Automotive are used interchangeably.


author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

text:
    Ray HANLEY, in His Official Capacity as Director of the Arkansas Department of Health and Human Services v. ARKANSAS STATE CLAIMS COMMISSION; Norman L. Hodges, Jr., In His Official Capacity as Director of the Arkansas State Claims Commission; and Diane Pieroni, Robert Handley, Joe Peacock, and Ralph Patton, in Their Official Capacities as Arkansas State Claims Commissioners
    97-775
    970 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered May 7, 1998

      Breck G. Hopkins, for appellant.

      Brian G. Brooks, for appellees.

      Mitchell, Williams, Selig, Gates & Woodyard PLLC, by: Sherry P. Bartley and Dowd, Harrelson, Moore & Giles, by: C. Wayne Dowd, for interventor-appellee.
   Annabelle Clinton Imber, Justice.

In this case, we are asked to determine whether the circuit court erred when it refused to issue either a writ of mandamus or a writ of certiorari ordering the Arkansas Claims Commission to dismiss a claim pending before it. We affirm the trial court’s denial of both writs.

The Arkansas Department of Human Services Division of Medical Services (DHS) is responsible for administering Medicaid in Arkansas. From July 1, 1991, until June 30, 1994, DHS established Medicaid reimbursement rates that were lower for out-of-state hospitals than for in-state hospitals. Texarkana Memorial Hospital, d/b/a Wadley Regional Medical Center, (“Wadley”), is an out-of-state hospital that was affected by this plan.

On April 8, 1996, Wadley filed a complaint before the Arkansas Claims Commission against Ray Hanley in his official capacity as Director of DHS. In its complaint, Wadley alleged that the 1991-1994 Medicaid reimbursement rates were invalid for several reasons, and thus it was entitled to $2,835,828, which is the amount the hospital would have received if it had been an in-state Medicaid provider. On April 26, 1996, DHS filed a motion to dismiss Wadley’s claim because the Commission did not have jurisdiction to hear it. The Commission denied DHS’s motion on September 11, 1996.

In response, DHS filed in the Pulaski County Circuit Court a petition for a writ of certiorari or a writ of mandamus ordering the Claims Commission to dismiss Wadley’s Medicaid claim. The trial court denied DHS’s petitions on April 11, 1997. In its order, the court found that it did not have jurisdiction to issue either a writ of mandamus or a writ of certiorari to the Claims Commission because it is an arm of the General Assembly. The court also found that even if it had jurisdiction, the writs were inappropriate because DHS had an adequate remedy of appealing the Commission’s decision to the General Assembly.

On appeal, DHS raises several arguments as to whether the Claims Commission has jurisdiction to hear Wadley’s Medicaid claim. The trial court did not rule on this issue, and thus we are precluded from considering it on appeal. See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). Instead, the trial court only ruled as to whether it had jurisdiction to issue either a writ of mandamus or a writ of certiorari to the Claims Commission. Accordingly, we will limit our review to these two issues.

I. Writ of Mandamus

The first issue is whether the trial court erred when it denied DHS’s petition for a writ of mandamus. We will reverse a trial court’s ruling on a petition for a writ of mandamus only if there has been an abuse of discretion. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993); State v. Grimmett, 292 Ark. 523, 731 S.W.2d 207 (1987).

A writ of mandamus, as defined by Ark. Code Ann. § 16-115-101 (1987), is appropriate if the following two factors are established. First, the judiciary may issue a writ of mandamus to an executive or legislative officer only if the duty to be compelled is ministerial and not discretionary. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); State v. Grimmett, supra. For example, in Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), we held that a writ of mandamus could not be used to compel the legislature to adjourn the Seventy-Second General Assembly because the decision to continue the session was a discretionary matter. We have also held that although the writ cannot be used to control or review matters of discretion, it may be used to force an official to exercise that discretion. Saunders v. Neuse, supra; Thompson v. Erwin, 310 Ark. 533, 838 S.W.2d 353 (1989).

Second, the petitioner must show a clear and certain right to the relief sought, and the absence of any other adequate remedy. Redd v. Sossamon, 315 Ark. 512, 868 S.W.2d 466 (1994); Thompson v. Erwin, supra. In State v. Grimmett, supra, we distinguished that the alternative remedy must be adequate, and not merely plausible. We further explained that to be “adequate” the alternative remedy must be “plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy invoked.” Id. Thus, in several cases we have refused to issue a writ of mandamus where the petitioner had the adequate remedy of raising the issue on appeal. See, e.g., Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Sexton v. Supreme Ct. Comm. on Prof'l Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988).

We agree with the trial court that DHS has failed to establish both of these factors. In Fireman’s Insurance Co. v. Arkansas State Claims Commission, 301 Ark. 451, 784 S.W.2d 771 (1990), we held that the Claims Commission was an “arm of the General Assembly,” and that a party may only appeal the Commission’s rulings to the General Assembly. In 1997, the General Assembly codified the later determination by passing Act 33 of 1997 which declares that a “decision of the Arkansas State Claims Commission may be appealed only to the Arkansas General Assembly.” Codified at Ark. Code Ann. § 19-10-211 (Supp. 1997) (emphasis added). Because DHS is asking the judiciary to compel the Claims Commission to reverse its prior discretionary determination that it had jurisdiction to hear Wadley’s Medicaid claim, and DHS has the adequate remedy of appealing the Commission’s ruling to the General Assembly, we hold that the trial court did not abuse its discretion when it denied DHS’s petition for a writ of mandamus. Accordingly, we affirm this ruling.

II. Writ of Certiorari

The second issue is whether the trial court erred when it denied DHS’s petition for a writ of certiorari as defined by Ark. Code Ann. § 16-13-205 (Repl. 1994). We will reverse a trial court’s ruling on a petition for a writ of certiorari only if the court has abused its discretion. Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972).

It is well settled that certiorari lies only when it is apparent on the face of the record that there has been a “plain, manifest, clear, and gross abuse of discretion,” and there is no other adequate remedy. State v. Pulaski County Circuit Ct., 326 Ark. 886, 934 S.W.2d 915 (1996); Simpson v. Pulaski County Circuit Ct., 320 Ark. 468, 899 S.W.2d 50 (1995); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. See King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996).

Based on our holding, in Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990), we conclude that DHS has failed to satisfy both of the elements entitling it to a writ of certiorari. In Fireman’s Insurance, the petitioner filed a claim before the Arkansas Claims Commission based on a contract dispute it had with the Arkansas Highway and Transportation Department. Id. After the Commission denied the claim, the petitioner asked the circuit court to issue a writ of certiorari reversing the Commission’s decision. Id. The circuit court refused. Id. On appeal, we explained that pursuant to the doctrine of sovereign immunity neither the State nor its agencies could be named as defendants in its courts. Id. In 1949, the General Assembly created the Arkansas Claims Commission for the sole purpose of hearing and resolving claims against the State that could not otherwise be heard by the judiciary. Id. In Fireman’s, we clarified that the Commission was an “arm of the legislature,” and thus all appeals of the Commission’s rulings must be heard by the General Assembly, and not the courts. Id. To further emphasize this point, we said that:

the General Assembly has total control over the determination of, and subsequent funding for, payment of the ‘just debts and obligations of the state’ [and] all other avenues of redress through legal proceedings [are] barred by sovereign immunity ....

Id. (emphasis added). Accordingly, we affirmed the trial court’s denial of the petition for a writ of certiorari. Id.

As in Fireman’s Insurance, DHS has failed to satisfy both elements entitling it to a writ of certiorari. First, we cannot say that it is clear from the face of the record that the Commission does not have jurisdiction over Wadley’s claim against DHS. As acknowledged by the dissent, Ark. Code Ann. § 19-10-204(b) (Supp. 1997) provides that the Commission does not have jurisdiction over:

claims arising under the Workers’ Compensation Law, § 11—9—101 et seq., the Employment Security Law, § 11-10-101 et seq., the Arkansas Teacher Retirement System Act, § 24-7-201 et seq., the Arkansas Public Employees’ Retirement System Act, § 24-4-101 et seq., the State Police Retirement System Act, § 24-6-201 et seq., or under laws providing for old age assistance grants, child welfare grants, blind pensions, or any laws of a similar nature.

(Emphasis added.) The dissent argues that the last phrase of this section was “clearly intended to except Medicaid claims like Wadley’s,” and that “Medicaid reimbursement is unquestionably ‘similar’ to laws providing for old-age assistance grants, child-welfare grants, and blind pensions.” We disagree because the dissent’s argument misconstrues the statute and the nature of Wadley’s claim.

Pursuant to the doctrine of ejusdem generis, when general words follow specific words in a statutory enumeration the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502 (1995); Agape Church, Inc. v. Pulaski County, 307 Ark. 420, 821 S.W.2d 21 (1991). Likewise, the doctrine of noscitur a sociis, which literally translates to “it is known from its associates,” provides that a word can be defined by the accompanying words. Boston v. State, 330 Ark. 99, 952 S.W.2d 671 (1997). Applying both of these principles, we acknowledge that the specifically enumerated exceptions to the Commission’s jurisdiction listed in Ark. Code Ann § 19-10-204(b) all involve claims of a similar nature: claims by individuals for benefits arising under a statute. In contrast, Wadley filed a breach of contract claim arising under common law instead of a statute. Because Wadley filed a contract claim against DHS, which, as we said in Fireman’s Insurance, is clearly within the jurisdiction of the Claims Commission, we cannot say that on the face of the record the Commission is proposing to act beyond its jurisdiction.

In Fireman’s Insurance, we also held that an aggrieved party may only appeal the Commission’s decision to the General Assembly. Because DHS has the adequate remedy of appealing the Commission’s ruling to the General Assembly, we also conclude that the second element entitling DHS to a writ of certiorari has not been established. Accordingly, we hold that the trial court did not abuse its discretion when it denied DHS’s petition for a writ of certiorari.

Affirmed.

Brown and Thornton, JJ., dissent.

Robert L. Brown, Justice,

dissenting. Though I agree with the majority opinion that the trial court was operating within its discretion in denying the petition of the Department of Human Services (DHS) for writ of mandamus, I respectfully dissent from that portion of the majority opinion that affirms the denial of DHS’s petition for writ of certiorari.

The General Assembly clearly intended to except Medicaid claims like Wadley’s claim for $2,835,828 from Claims Commission jurisdiction. In 1949, the General Assembly created the Claims Commission, and in doing so, limited its jurisdiction consistent with the current Arkansas Code:

(b) The commission shall have no jurisdiction of, or authority with respect to, claims arising under the Workers’ Compensation Law, § 11-9-101 et seq., the Employment Security Law, § 11-10-101 et seq., the Arkansas Teacher Retirement System Act, § 24-7-201 et seq., the Arkansas Public Employees’ Retirement System Act, § 24-4-101 et seq., the State Police Retirement System Act, § 24-6-201 et seq., or under laws providing for old age assistance grants, child welfare grants, blind pensions, or any laws of a similar nature. . . .

Ark. Code Ann. § 19-10-204 (Supp. 1997)(emphasis added). See 1949 Ark. Acts 462 § 2. Viewing the plain language of this section, which has remained virtually the same for approximately fifty years, Medicaid reimbursement is unquestionably “similar” to laws providing for old-age assistance grants, child-welfare grants, and blind pensions.

The fact that the General Assembly has waived sovereign immunity for Wadley’s Medicaid claim under this statute is bolstered by the fact that Wadley itself first made its claim for an adjustment in Medicaid reimbursement to DHS and sought an appeal within DHS after that appeal was denied. In its complaint filed in the Claims Commission, Wadley described the sequence of events:

15. On May 11, 1995, Wadley, through its counsel Vinson & Elkins, requested an adjustment in the amounts it was paid in fiscal years 1992, 1993, and 1994 pursuant to its Provider Agreement with DHS. DHS did not respond. After numerous telephone calls and letters to DHS, on June 28, 1995, Wadley, through its counsel, Mitchell, Williams, Selig, Gates and Wood-yard, P.L.L.C., again requested an adjustment to the payments in 1992, 1993, and 1994. DHS did not respond. After further demand, on July 19, 1995, Breck Hopkins of DHS Office of Chief Counsel responded by letter of July 26, 1995, and denied any consideration of Wadley’s request.
16. Wadley then requested reconsideration of the Hopkins’ decision by following the appeals process found in Section 231.7 of the Provider Manual. By letter of September 14, 1995, DHS refused to allow the appeal stating that it was time barred and should have been brought in 1992 when the rate for out-of-state hospitals was reduced to $400.

It is only after the door was closed to Wadley’s appeal within DHS that Wadley chose another route, which was its complaint before the Claims Commission. But, again, the Claims Commission has no jurisdiction over Medicaid claims. This is a matter intended to be heard within the executive branch under § 19-10-204, with judicial review of the agency decision clearly residing in circuit court under the Administrative Procedure Act. See Ark. Code Ann. § 25-15-212 (Repl. 1996).

The reason that the General Assembly determined to keep hands off of these Medicaid claims is obvious. Medicaid reimbursement is a matter of considerable complexity, and DHS has the requisite expertise to decide these Medicaid questions. We have faithfully acknowledged such expertise and acumen within our state agencies. See, e.g., Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998); Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998). To be sure, a claim against the State based on a contract must be submitted to the Claims Commission. Ark. Code Ann. § 19-10-208(c) (Repl. 1994). But to contend that this is merely a claim for breach of contract is a terrible understatement. Wadley’s claim requires interpretation of federal law and regulations, declaration of what constitutes the supreme law of the land, an alleged violation of the Equal Protection Clause of the Fourteenth Amendment, and judicial review of a state agency decision.

Because the Claims Commission, which is an arm of the legislative branch, is attempting in this case to exercise powers reserved by § 19-10-204 to the executive branch, the instant case is materially different from Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied, 498 U.S. 824 (1990), and Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), where this court held that writs of certiorari and mandamus could not issue to the General Assembly because the challenged conduct fell squarely within the exercise of legislative powers.

A writ of certiorari lies to correct proceedings erroneous on the face of the record, when there is no other adequate remedy. King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996); Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993); Sexton v. Supreme Court, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Id.

The Claims Commission is assuming what is clearly a matter to be decided by DHS under § 19-10-204, subject to judicial review. It has no jurisdiction over the case. I would grant the petition for writ of certiorari.

Thornton, J., joins.

       Wadley alleged numerous causes of action including breach of contract, violation of the federal Medicaid Act, violations of two state statutes, and several constitutional challenges.


author: Annabelle Clinton Imber, Justice.

text:
    SOUTHERN TRANSIT COMPANY, Inc. v. Eugene COLLUMS
    97-967
    966 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered May 7, 1998

      McKenzie, McRae, Vasser & Barber, by: James H. McKenzie, for appellant.

      Gary Eubanks & Associates, by: Robert S. Tschiemer and William Gary Holt, for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Southern Transit Co. Inc., challenges a default judgment that was entered in favor of the appellee, Eugene Collums, on the issue of liability. We affirm.

Eugene Collums collided with a truck owned by the Southern Transit Company, and operated by its employee, Bruce Peek. On February 26, 1997, Collums filed a negligence action against Southern Transit and Bruce Peek for the injuries he sustained during the accident. Collums then sent by certified mail a copy of the complaint, the summons, and several discovery requests to Southern Transit’s agent for service. The summons correctly listed Southern Transit and Bruce Peek as the defendants, but it was improperly directed to Defendant Bruce Peek instead of Southern Transit. On March 7, 1997, Southern Transit’s agent for service received the certified mail and signed the return receipt.

On April 2, 1997, Collums gave Southern Transit a thirty-day extension to file an answer to the complaint. When Southern Transit failed to file its answer within the extended time period, Collums filed a motion for default judgment on May 21, 1997. On June 19, 1997, which was 104 days after the date of service and forty-three days after the expiration of the thirty-day extension, Southern Transit filed its answer to Collums’s complaint. On June 23, 1997, Southern Transit also filed a response to Collums’s request for default judgment. In its response, Southern Transit argued for the first time that default judgment should not be granted to Collums because the summons was improperly directed to Bruce Peek, instead of Southern Transit.

On July 8, 1997, the trial court struck Southern Transit’s answer as untimely, ordered a default judgment against Southern Transit as to liability, and granted a jury trial on the issue of damages. The default judgment was entered as to Southern Transit only and did not apply to Defendant Bruce Peek. Southern Transit subsequently filed a motion to set aside the default judgment, which was denied by the trial court on July 30, 1997. Southern Transit appeals. Although the issue of damages remains to be resolved by a jury and the default judgment was entered only as to Southern Transit, we have jurisdiction over this case because it is an interlocutory appeal of the trial court’s order striking Southern Transit’s answer. See Ark. Sup. Ct. R. 1—2(a)(11); Ark. R. App. P.—Civ 2(a)(4); Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 44 (1991).

I. Void Judgment

On appeal, Southern Transit contends that the trial court erred when it granted Collums’s motion for default judgment under Ark. R. Civ. P. 55(a). In 1990, we substantially revised Rule 55 so that more cases would be decided on the merits instead of upon the technicalities that often lead to default judgment. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992) (citing Addition to Reporter’s Notes to Rule 55, 1990 Amendment). One of the changes was to make the grant of default judgment under Rule 55(a) discretionary rather than mandatory. Id. The comments to Rule 55 also provide that:

In deciding whether to enter a default judgment, the court should take into account the factors utilized by the federal courts, including: whether the default is largely technical and the defendant is now ready to defend; whether the plaintiff has been prejudiced by the defendant’s delay in responding; and whether the court would later set aside the default judgment under Rule 55(c).

Addition to Reporter’s Notes to Rule 55, 1990 Amendment (emphasis added). Accordingly, in B & F Engineering, supra, we used the grounds listed in Rule 55(c) when deciding whether the trial court abused its discretion in granting a default judgment under Rule 55(a). This analysis is equally applicable to the case at hand.

Arkansas Rule of Civil Procedure 55(c) provides that a default judgment may be set aside for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment.

In addition to establishing one of the above grounds, the defendant must also demonstrate a meritorious defense to the action, unless the ground asserted is that the judgment is void. Ark. R. Civ. P. 55(c); Wilburn v. Keenan Co., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989).

In this case, Southern Transit argues that the default judgment was void because the service of process was improper. In several cases we have held that a default judgment is void under Ark. R. Civ. P. 55(c)(2) if the defendant was improperly served under Ark. R. Civ. P. 4. See, e.g, Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996) (no summons was issued to the defendant); Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (summons was not signed by the clerk); Wilburn v. Keenan Co., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989) (the summons was not marked “restricted delivery”). In Thompson, supra, we held that “the technical requirements of a summons, and compliance with those requirements must be exact.” Likewise, in Carruth, supra, and Wilburn, supra, we said that “[statutory requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact.” Accordingly, we held in Carruth and Wilburn that the default judgments were “void ab initio” due to the defective summons regardless of whether the defendant had actual knowledge of the pending lawsuit.

Arkansas Rule of Civil Procedure 4 requires the summons to contain, among other things, “the names of the parties,” and that the summons “be directed to the defendant.” In this case, the summons correcdy listed the names of both defendants, but incorrectly directed the summons to Bruce Peek instead of Southern Transit. Because the summons did not strictly comply with the technical requirements of Ark. R. Civ. P. 4, the trial court could have held that the default judgment was “void ab initio” regardless of the fact that Southern Transit had actual knowledge of the complaint against it.

In reaching this conclusion, we are not unmindful of two older Arkansas cases where we said that only “substantial compliance” with Ark. R. Civ. P. 4 is required. Ford Life Ins. Co. v. Parker, 277 Ark. 516, 644 S.W.2d 239 (1982); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). These cases, however, were decided before Rule 55 was revised in 1990, and accordingly they are no longer applicable. See Addition to Reporter’s Notes to Rule 55, 1990 Amendment (explaining that “[b]ecause the [revised] rule represents a significant break from prior practice, many cases decided under the old rule and the statute from which it was derived will no longer be of precedential value”). For these reasons, Southern Transit is correct in its assertion that the trial court could have rendered the default judgment void due to the defective summons. We, however, do not reverse on this basis because Southern Transit waived the defense of insufficiency of process by failing to raise that defense in its first responsive pleading.

II. Waiver

It is well settled that pursuant to Ark. R. Civ. P. 12(h)(1), a party waives the defense of insufficiency of process under Ark. R. Civ. P. 12(b)(4) if he or she fails to raise the argument in either the answer or a motion filed simultaneously with or before the answer. Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). In this case, Southern Transit filed an answer on June 19, 1997, but its argument regarding the insufficiency of process was not raised until June 23, 1997, when Southern Transit filed its response to Collums’s motion for default judgment. Because Southern Transit did not raise its valid defense of insufficiency of process in the answer, or by motion filed prior to or simultaneously with the answer, we hold that the defense was waived.

In an attempt to defeat this result, Southern Transit contends that it raised the defense in its answer when it denied Collums’s assertion in the complaint that the court had jurisdiction over the parties. We disagree.

In paragraph 2 of the complaint, Collums declared that:

This accident happened in Little River County, Arkansas. This is the proper venue of this action and this Court has jurisdiction of the parties.

In its answer, Southern Transit replied:

The Defendants admit that there was a motor vehicle accident in Litde River County, Arkansas, involving a vehicle driven by the Plaintiff and another vehicle operated by the Defendant, Bruce Peek; however, the Defendants are without knowledge or information to form a belief as to all the other allegations in Paragraph 2 of the Plaintiffs Complaint and therefore deny the same.

Similar to this case, in Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993), the defendants argued that they had preserved their legal challenge to the issuance of attorney’s fees by generally denying the paragraph of the complaint that contained an allegation that the plaintiff was entitled to attorney’s fees. We explained that “[a] denial of a material allegation is generally thought to be a denial of [a] material factual allegation, see ARCP Rule 8(b), while avoidance of a claim because of operation of law is generally thought to require the filing of an affirmative defense, see ARCP Rule 8(c).” Id. We acknowledge that Kolb involved the preservation of an affirmative defense under Rule 8 while this case concerns the assertion of a defense under Rule 12(b). We, however, find the Kolb decision applicable to the case at hand because it clearly established that the mere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense.

In this case, it is impossible to tell from Southern Transit’s answer whether it is claiming that the court lacks jurisdiction over Southern Transit due to the defective summons. In fact, the defect in the summons is not specifically mentioned anywhere in the answer. Moreover, lack of jurisdiction over the person under Rule 12(b)(2) is a separate and distinct defense from insufficiency of process under Rule 12(b)(4).

Finally, Southern Transit cites Farm Bureau Mutual Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), in support of its contention that such a general denial contained in the answer is sufficient. This argument, however, is misplaced because in Campbell, supra, Farm Bureau asserted the insufficiency-of-process defense in a separate paragraph of its answer, instead of making a general denial of personal jurisdiction as in this case. For these reasons, we hold that Southern Transit’s mere denial of the factual allegation that the court had jurisdiction over the parties did not sufficiently raise the legal defense of insufficiency of process.

In sum, we conclude that Southern Transit waived its valid defense of insufficiency of process by failing to raise that defense in its first responsive pleading. Accordingly, we hold that the trial court did not abuse its discretion when it granted default judgment as to Southern Transit’s liability.

Affirmed.


author: Ray Thornton, Justice.

text:
    Carolyn GOURLEY v. CROSSETT PUBLIC SCHOOLS, Max Pope, Barbara Gates, Barbara Cantley, David Barnes, Ben Walsh, Robert Cornelius, Bill Rogers, and Michael Simms; Individually and in Their Official Capacities as Former and Present Members of the Board of Directors of the Crossett Public Schools
    97-974
    968 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered May 7, 1998

      Roachell Law Firm, by: Richard W. Roachell, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Dan F. Bufford and Brian Allen Brown and Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellees.
   Ray Thornton, Justice.

Appellant Carolyn Gourley appeals the grant of summary judgment in favor of appellees, who are the Crossett Public Schools and former and current members of the District’s Board of Directors (the District). The trial court ruled that Ms. Gourley’s claim for the intentional tort of outrage is barred by the doctrine of election of remedies because she had previously accepted benefits from the Workers’ Compensation Commission. We agree and affirm.

At the time of her complaint for workers’ compensation benefits, Ms. Gourley was a seventh grade mathematics teacher at Daniel Middle School in the Crossett Public School District. In 1989, the school installed a new heating and air conditioning system, damaging the roof in the process. As a result of the instabation, leaks developed causing mold to grow in the school’s classrooms. The mold aggravated Ms. Gourley’s pre-existing allergies, which in turn, led to persistent sinus infections. In the ensuing years, she made numerous visits to her doctors and underwent several' surgical procedures as a result of her allergy to mold and sinus complications.

Ms. Gourley filed a claim with the workers’ compensation commission in January, 1993. After the administrative law judge ruled in her favor, the District appealed to the full Commission, which affirmed the decision in favor of Ms. Gourley in 1995. The District then appealed to the court of appeals, which concluded that Ms. Gourley’s exposure to mold with resulting sinus difficulties was a compensable compensation claim. See Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 889 S.W.2d 482 (1995). Ms. Gourley subsequently collected workers’ compensation benefits.

Ms. Gourley filed the current suit against the District, arguing that the District acted with deliberate intent to cause her job-related injuries. In her November, 1995 amended complaint, Ms. Gourley asserted that this action falls within the intentional-tort exception to the exclusive-remedy provision of the Workers’ Compensation Act. She claimed that the District’s acts amounted to the tort of outrage when (1) Superintendent Barbara Gates, knowing of Ms. Gourley’s delicate physical and emotional health, failed to correct the mold problem at Daniel Middle School; (2) Superintendent Gates transferred Ms. Gourley to Hastings Elementary School in retaliation for filing a workers’ compensation claim; (3) Principal Daniel Barnes committed various acts of harassment, including telling Ms. Gourley that she could not use mold trays to support her workers’ compensation claim and warned her not to talk to anyone about the mold problem at Daniel Middle School.

The District moved for summary judgment, contending that Ms. Gourley’s claim was barred by the exclusive-remedy doctrine of the Workers’ Compensation Act, and was further barred by the common-law election of remedies doctrine. Without reaching the issue of the tort of outrage, the trial court granted the District’s motion as a matter of law, concluding that the doctrine of election of remedies precludes a subsequent tort claim arising from the same set of facts.

We first mention Ms. Gourley’s argument that the Worker’s Compensation Act does not bar her tort of outrage claim against the District. Ms. Gourley contends that the District’s acts and omissions were done intentionally to cause her personal injury, thereby coming within the exception to the workers’ compensation exclusivity provision.

Generally, an employer who carries workers’ compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Lively v. Libbey Memorial Physical Med. Ctr., 317 Ark. 5, 8, 875 S.W.2d 507, 509 (1994); Thomas v. Valmac Indus., Inc., 306 Ark. 228, 230, 812 S.W.2d 673, 674 (1991). This rule, known as the exclusivity doctrine, arises from Ark. Code Ann. § 11-9-105 (Supp. 1996), which provides that “[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee ...."

Ms. Gourley relies on certain court-defined narrow exceptions to this general rule. We have noted several times that an employer who willfully and intentionally injures an employee is not immune from a common-law tort action. See Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993); Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991) (citing Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950)).

We do not, however, need to reach the merits of Ms. Gourley’s argument. The trial court was correct in ruling as a matter of law. Ms. Gourley’s claim for the intentional tort of outrage is barred by the doctrine of election of remedies because she has previously pursued workers’ compensation benefits to recovery for the same injuries.

In a similar case, we held that because the appellant recovered workers’ compensation benefits, she was precluded from pursuing any tort action for the same claim. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996). In Western Waste, the appellant alleged that, during her employment, she sustained injuries caused by exposure to chemicals. Id. She received workers’ compensation benefits and, nine months later, filed a personal-injury suit against her employer. As in this case, the appellant alleged the intentional infliction of emotional distress, contending that her action was based on the intentional-tort exception to the exclusive-remedy doctrine. Id. at 258, 930 S.W.2d at 349.

In that case, we stated the general rule that an injured employee’s right to recover for job-related injuries is exclusively under the Workers’ Compensation Act, but when the employee is able to show actual, specific, and deliberate intent by the employer to injure him, he may avoid the exclusive remedy under the Act and proceed in a common-law tort action. Western Waste, 326 Ark. at 258-59, 930 S.W.2d at 350. We further stated that the employee has the option to pursue a claim for damages either in tort or under the Workers’ Compensation Act. Id. at 259, 930 S.W.2d at 350. We noted that once the employee makes the election, the employee may no longer pursue the remedy not chosen. Id.

In the present case, the undisputed facts show that Ms. Gourley filed a workers’ compensation claim based on the same injuries that she now contends the District caused with the specific intent to injure her. The court of appeals affirmed the finding by the Workers’ Compensation Commission that there was a causal connection between Ms. Gourley’s employment, the allergy, and her sinus difficulties. Because Ms. Gourley has recovered under her employer’s workers’ compensation plan, as a matter of law she is precluded from recovering again under an intentional-tort theory. Thus, the exception to the exclusive-remedy doctrine does not open the door to an additional recovery for the same injuries.

As a final matter, we summarily dispose of Ms. Gourley’s argument that summary judgment was improper because an issue of fact exists regarding the element of intent in the tort of outrage. We have said that the purpose of summary judgment is not to try issues, but to determine if there are issues to be tried, and if doubt exists, summary judgment should not be granted. Culpepper v. Smith, 302 Ark. 558, 561, 792 S.W.2d 293, 294 (1990). Here, the trial court was correct in determining that there were no issues to be tried. In reaching its decision, the trial court could assume that Ms. Gourley’s allegations were true to reach the same result. If true, Ms. Gourley’s course of action would still be subject to the election of remedies doctrine. Because she chose to pursue workers’ compensation benefits, she is precluded from coming to court now to recover again under tort theory.

Affirmed.

Glaze, J., not participating.