author:
Ray Thornton, Justice.
      W.H. “Dub” Arnold, Chief Justice,

text:
    WAL-MART STORES, INC. v. Johnny LONDAGIN, Sue LONDAGIN, and Laura Perkins
    00-1083
    37 S.W.3d 620
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark, for appellant.

      Mashburn & Taylor, by: Timothy J. Myers, for appellees Johnny H. Londagin and Sue Londagin.

      Jones, Jones & Lushbaugh, P.L.C., by: Lewis D. Jones, for appellee Laura Perkins.
   Ray Thornton, Justice.

We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1-2 (b) (1) and (6) because the appeal requires us to construe Rule 408 of the Arkansas Rules of Evidence as it applies to the admissibility of evidence of an effort by Wal-Mart to satisfy a customer complaint during subsequent litigation by a third party seeking to recover damages arising out of the same transaction. The trial court ruled that Rule 408 did not require exclusion of the evidence, and the jury awarded damages. Wal-Mart brings this appeal contending that the trial court committed error in denying its motion to exclude this evidence, and asserts three additional points of appeal. We find no error and affirm.

The relevant facts are that on October 4, 1996, appellee, Laura Perkins, took her truck to the Wal-Mart Tire and Lube Express in Bentonville. Ms. Perkins requested that Wal-Mart change the oil in her truck and rotate the tires. When Ms. Perkins picked up her truck, she noticed that the tires had not been rotated. Wal-Mart moved the vehicle back inside and rotated the tires.

Later in the afternoon of October 4, 1996, Ms. Perkins was traveling on Highway 59 when the left front wheel came off of her truck, crossed the center line, and struck a vehicle owned and operated by appellee, Johnny Londagin, causing his vehicle to wreck. As a result of the wreck, Mr. Londagin sustained injuries. After the wreck, Ms. Perkins called Wal-Mart to report the accident. Wal-Mart sent representatives to the scene and provided Ms. Perkins with a rental car to continue her planned trip to Oklahoma. Wal-Mart then towed her truck back to their shop and had it repaired, all without cost to Ms. Perkins.

On January 13, 1998, appellee, Johnny Londagin and his wife, appellee, Sue Londagin, filed a complaint against Wal-Mart. The complaint sought damages for injuries sustained during the motor vehicle accident on October 4, 1996. The Londagins alleged that the accident was proximately caused by Wal-Mart’s negligence and asserted that Wal-Mart failed to properly rotate Ms. Perkins’s tires and failed to properly replace the lug nuts on the left front wheel of Ms. Perkins’s truck. The complaint sought damages for personal injuries sustained by Mr. Londagin, including past and future medical expenses, pain and mental anguish, permanent disability, lost wages, and loss of enjoyment of life. The complaint also sought damages for loss of consortium on behalf of Mrs. Londagin.

On February 11, 1999, the Londagins amended their complaint to add Ms. Perkins as an additional defendant. The complaint alleged that Ms. Perkins’s negligence proximately caused the October 4, 1996, accident because she failed to inspect and to maintain control over her vehicle. On March 9, 1999, Ms. Perkins answered the complaint, denying all allegations of negligence, and filed a cross-complaint against Wal-Mart. On January 31, 2000, Wal-Mart filed a separate cross-complaint against Ms. Perkins alleging that her negligence proximately caused the accident.

On February 8, 2000, Wal-Mart filed a motion in limine requesting exclusion of certain evidence. Wal-Mart sought to exclude “evidence regarding settlement and matters relating to settlement.” Additionally, Wal-Mart wanted to “exclude evidence regarding video cameras or lack thereof.” A hearing was held to discuss Wal-Mart’s requests, and on February 14, 2000, the trial court denied Wal-Mart’s motion.

On February 15, 2000, a jury trial was held. After the Londagins’s case-in-chief, Ms. Perkins was granted a motion for directed verdict, and her case was dismissed. At the conclusion of the trial, the jury awarded Mr. Londagin $125,000 in damages and awarded Mrs. Londagin $10,000 in damages. It is from this judgment that Wal-Mart appeals, raising four points on appeal.

In its first point on appeal, Wal-Mart argues that the trial court erred when it allowed the Londagins to introduce evidence of WalMart’s actions seeking to satisfy Ms. Perkins’s complaint. The Londagins introduced evidence at trial that immediately after the accident, Wal-Mart employees came to the scene of the accident, provided a rental car for Ms. Perkins, and towed and repaired Ms. Perkins’s truck. Wal-Mart argued in a motion in limine that introduction of such evidence would be in violation of Rule 408 of the Arkansas Rules of Evidence. The trial court denied Wal-Mart’s motion and allowed the Londagins to present testimony as to the actions taken by Wal-Mart after the October 1996 accident.

Rule 408 provides:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Id. We have strictly applied Rule 408. See Elrod v. G & R Construction, 275 Ark. 151, 628 S.W.2d 17 (1982) (holding that the mere mention of an offer of compromise or settlement was such an egregious error that the only remedy would be to declare a mistrial). We have held that offers are inadmissible to prove a party’s liability on the underlying claim. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). The rationale for Rule 408 is based upon the grounds of promotion of the public policy favoring the compromise and settlement of disputes. See John W Strong, McCormick on Evidence § 266, at 183 (5th ed. 1999). The purpose of Rule 408 is to promote complete candor between the parties to the settlement negotiations. Mo. Pac. R. R. Co. v. Ark. Sheriffs Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). However, we have held that Rule 408 is not a blanket prohibition against the admission of all evidence concerning offers to compromise. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). We have further held that Rule 408 requires the exclusion of statements made in compromise negotiations of a defendant with a third party. See Ark. Sheriffs Boys’ Ranch, supra. We have also held that offers to compromise or settle a disputed claim should be excluded from evidence even if no litigation has been commenced at the time of the compromise. See Hickman v. Trust of Heath, House, and Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992).

In the case before us, the actions of Wal-Mart to satisfy the customer complaint made by Ms. Perkins had been completed before Mr.. Londagin brought his complaint, and if the actions of Wal-Mart and Ms. Perkins constituted an offer of compromise and settlement of a disputed claim, the application of Rule 408 would exclude evidence of such an offer.

Our analysis of Rule 408 informs us that there are several elements that must be present in order to exclude evidence of compromise or offers to compromise. To invoke Rule 408: (1) there must be a claim; (2) the purpose of offering the evidence must be to prove liability for, invalidity of, or amount of the claim; (3) valuable consideration must be furnished or offered to be furnished, or promised to be furnished, or valuable consideration must be accepted, offered, or promised to be accepted in an effort to compromise or attempt to compromise a claim; and (4) the claim must be disputed as to either validity or amount. See Ark. R. Evid. 408. The essential elements required to invoke Rule 408 protection have also been explained in McCormick’s treatise on evidence. The treatise notes:

to invoke the exclusionary rule, an actual dispute must exist,- preferably some negotiations, and at least an apparent difference of view between the parties as to the validity or amount of the claim. An offer to pay an admitted claim is not privileged since there is no policy of encouraging compromises of undisputed claims, which should be paid in full.

McCormick on Evidence, supra.

Our first inquiry is whether a claim existed between Wal-Mart and Ms. Perkins when Wal-Mart came to the accident scene and assisted Ms. Perkins on October 4, 1996. At trial, Ms. Perkins testified that immediately after the accident she phoned the Wal-Mart tire and lube express center from the scene and was “really upset.” She informed Wal-Mart that “there’s no way we can fix the truck as it is sitting.” Ms. Perkins was informed that someone from Wal-Mart would come and assist her.

Jon Kuntz, a district manager for Wal-Mart tire and lube express, testified that he spoke with Ms. Perkins on the day of the accident. She described what had occurred, and he verified that Wal-Mart had worked on her truck prior to the accident. He informed Ms. Perkins that he would come to the accident scene and then secured a rental car for her. Finally, Mr. Kuntz testified that he participated in completion of the “first report of incident” form. That form states that it is to be filled out “when there is a customer injury as well as when settling a claim in the field.” After reviewing the evidence, we conclude that when Ms. Perkins telephoned Wal-Mart, in a disgruntled state, alleging that her wheel had come off of her truck shortly after Wal-Mart had rotated the tires on her truck, and informed Wal-Mart of the accident, she expressed a claim against Wal-Mart.

It is clear that the Londagins were seeking to introduce evidence of Wal-Mart’s actions to prove Wal-Mart’s liability, thereby satisfying the second prong of our analysis. Additionally, because there was certainly a showing that Wal-Mart furnished valuable consideration to Ms. Perkins to satisfy her claim, the third element of Rule 408 is also present in this case.

The element remaining for analysis is whether Ms. Perkins’s claim was disputed. The trial court concluded that the evidence did not demonstrate that Wal-Mart ever disputed the claim as to either validity or amount. The testimony showed that Ms. Perkins called Wal-Mart and notified it as to her claim. Wal-Mart responded to Ms. Perkins’s claim by voluntarily bringing her a rental car, towing her truck, and repairing her truck. Wal-Mart towed and repaired Ms. Perkins’s truck at no expense to Ms. Perkins, and according to her testimony, without her request that the services be performed. There is simply no showing that Wal-Mart disputed Ms. Perkins’s claim, but rather the evidence supports the trial court’s finding that Wal-Mart assumed responsibility for wholly paying the claim. The testimony established that Wal-Mart did not require Ms. Perkins to sign any paper work for the rental car or perform any act to authorize the repair of her truck. Moreover, Ms. Perkins testified that Mr. Kuntz apologized at the scene of the accident and assured her that “Wal-Mart would take care of everything.” Based on the evidence, we cannot say that the trial court erred in finding that there was no dispute as to either validity or amount of Ms. Perkins’s claim. We have held that evidentiary rulings are within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Ozark Auto Transportation, Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997). Because we find no error in the trial court’s finding that there was no dispute as to either validity or amount of the claim, we conclude that the trial court did not abuse its discretion in allowing the Londagins to introduce evidence of Wal-Mart’s efforts to satisfy Ms. Perkins’s claim.

In its second point on appeal, Wal-Mart contends that the trial court abused its discretion by admitting evidence relating to Wal-Mart’s videotaping capabilities and the possible existence of a videotape from the tire and lube service center on the day Ms. Perkins’s truck was repaired. In a pretrial motion in limine, Wal-Mart sought to keep such evidence from the jury. In a hearing on the motion, Wal-Mart argued that no videotaping occurred, but that if evidence regarding its videotaping capabilities was introduced, the jury might infer that a videotape of the work on Ms. Perkins’s truck was destroyed, misplaced, or hidden. The trial court denied Wal-Mart’s motion.

On appeal, Wal-Mart argues that the evidence relating to its videotaping capabilities was not relevant pursuant to Rule 401 of the Arkansas Rules of Evidence. Specifically, Wal-Mart contends that because it presented uncontroverted evidence that there was not a videotape of the service area on the day of the accident, then any evidence relating to Wal-Mart’s videotaping capabilities would not be relevant. Rule 401 states that “ ‘relevant evidence’ means evidence having tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We have held that a trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67(1999).

The trial court admitted testimony relating to Wal-Mart’s videotaping capabilities and testimony regarding the possibility of a videotape of the service area on the date of the accident into evidence. The evidence was relevant because the case involved a negligence claim. If there was a videotape of the alleged negligent act, it would clearly be relevant. Alternatively, if there was a videotape and it was not made available by Wal-Mart, that evidence would also be relevant. We conclude that the trial court did not abuse its discretion in admitting evidence concerning whether Wal-Mart had videotaping capabilities and whether there was a videotape of the service area on the day the alleged negligent act occurred.

In its third point on appeal, Wal-Mart argues that the trial court erroneously directed a verdict in favor of Ms. Perkins. In examining a trial court’s ruling on a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the directed verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). A motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Id. Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. Id.

At trial, Ms. Perkins’s attorney moved for a directed verdict at the close of the Londagins’s case-in-chief. The trial court granted this motion and found:

I have done my best to pay attention to any testimony or evidence that indicated some sort of negligent behavior or inaction on the part of Ms. Perkins. Quite frankly, I see none.... I have listened to this testimony and I have heard nothing indicating that she was speeding or that she was not maintaining proper control of her vehicle, that her responsefs] were late or improper. There has been no evidence that anybody else could have done anything other than what happened, no evidence that she should have had prior notice of the wheel before it fell off, something that would cause her to go ahead and stop. Nothing.... I think [customers], do not have a" duty to go behind tire places like this to start second guessing, checking the work, unless something has placed them on notice that there is something amiss and that something is wrong.

On appeal, Wal-Mart contends that this ruling was erroneous because “there was evidence submitted from which the jury might well have assessed some degree of fault on the part of Ms. Perkins,” citing Ms. Perkins’s testimony. The testimony Wal-Mart considers sufficient to establish Ms. Perkins’s negligence states in relevant part that:

And then all of a sudden the truck — our truck started shaking really bad and we heard this bang and the truck shook. And I noticed out of the corner of my eye that this tire went by and-I wondered whose tire that was because I don’t remember hitting anything. There wasn’t anything in the road. And I am looking off to the side of the road trying to get the truck off the road once I figured out that that was my tire. When the front end dropped, I just took it off the road.

In determining whether the trial court correctly directed a verdict in Ms. Perkins’s favor we must determine whether there was substantial evidence to establish that Ms. Perkins’s actions were negligent. We have defined negligence as:

the failure to do something which a reasonably careful person would do. A negligent act'arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. While a party can establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation.

Cameron, supra (internal citations omitted). Applying this definition to the case now on review, we hold that the trial court properly determined that there was insufficient evidence that Ms. Perkins acted negligently so as to submit that issue to the jury. There was no evidence presented that established that Ms. Perkins failed to do something that a reasonably careful person would do.

Specifically, there was no evidence that Ms. Perkins: (1) was speeding; (2) failed to maintain a proper look out; (3) failed to maintain control of her truck; (4) operated her truck when she knew it was unsafe; (5) failed to inspect her vehicle to insure it was in safe working condition; or (6) failed to use ordinary care in the operation of her truck. The evidence showed that as soon as Ms. Perkins realized that her vehicle was unsafe, she pulled immediately off the road. Accordingly, we hold that the trial court did not commit error in finding that there was no substantial evidence of Ms. Perkins’s negligence, and in directing a verdict in her favor.

In its last point on appeal, Wal-Mart contends that the trial court committed error when it submitted the issue of Mr. Londagins’s future medical expenses to the jury. Wal-Mart argues that the only evidence of Mr. Londagin’s future medical expenses was speculative, and therefore, the issue should not have been submitted to the jury. We have held that future medical expenses need not be proven with the same specificity as past medical expenses. Arthur, supra. However, there must be some evidence that medical treatment will be necessary in the future. Id. We have further held that it is not speculation and conjecture to calculate future medical expenses where a jury has before it a history of medical expenses that have accrued as of the date of trial. Williams v. Gates, 215 Ark. 381, 630 S.W.2d 34 (1982). Finally, we have noted that the showing of a degree of medical certainty as evidence bolsters recovery of future medical expenses. See West Union v. Vostatek, 302 Ark. 219, 788 S.W.2d 952 (1990).

In light of these principles, we review the testimony presented at trial to determine whether there was sufficient evidence to submit this issue to the jury. Dr. Robert Taylor, Mr. Londagin’s physician, testified at trial. He stated that as a result of the October 1996 automobile accident, Mr. Londagin developed carpal tunnel syndrome in his upper extremities and suffers from a midline abdominal wall injury which has caused some weakening of his anterior abdominal wall. Dr. Taylor further testified that he recommends surgery to repair Mr. Londagin’s anterior abdominal wall. He also stated that Mr. Londagin would always have some discomfort as a result of the injury and the only way to repair the injury would be to surgically close the defect. Dr. Taylor estimated that the surgical procedure would cost approximately $10,000.

Mr. Londagin also testified. He stated that he has an injury in his stomach or abdomen, attributed to the October 1996 automobile accident. He further testified that his injury causes him “problems” and that Dr. Taylor recommends surgery to correct his stomach injury. Mr. Londagin also stated that as a result of his injury, he experiences lower back pain when he works around his farm or exerts himself. Mr. Londagin further stated that when he “lifts,” his injury causes him pain. Finally, he noted that if his conditions deteriorates, and the doctor recommends it, he would have surgery to repair his abdominal injury.

Wal-Mart argues that “the facts of this case fall squarely within the ruling of the Arkansas Supreme Court in Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999)” and that because this case is so similar to Arthur then the trial court erred when it submitted the issue of Mr. Londagin’s future medical expenses to the jury. WalMart’s argument is misplaced. In Arthur, supra, we reversed the trial court because it instructed the jury on future medical expenses when there was “no testimony by any physician that Mrs. Zearley will need future medical care, such as surgery, therapy, or medication.” Id. We noted that “in the absence of proof that medical expenses were reasonably certain to be required in the future, the jury was forced to resort to speculation and conjecture.” Id.

The facts in Arthur are distinguishable from the case now before us. In Arthur, there was no medical testimony that Mrs. Zearley would require future medical expenses. By contrast in the case subjudice, Dr. Taylor’s testimony established within a reasonable degree of medical certainty that Mr. Londagin would require surgery in the future to repair his abdominal injury. We conclude that there was sufficient evidence upon which the jury could consider the issue of future medical expenses without resorting to speculation or conjecture. Accordingly, the trial court did not err in submitting this issue to the jury and denying Wal-Mart’s motion for a directed verdict.

Affirmed.

CORBIN, J., not participating.

Arnold, C.J., dissents.

W.H. “Dub” Arnold, Chief Justice,

dissenting. I disagree ustice, court was correct when it allowed the Londagins to introduce evidence of Wal-Mart’s actions seeking to satisfy Mr. Perkins’s complaint. I believe the trial court erred. I, therefore, must dissent. Rule 408 of the Arkansas Rules of Evidence, entitled “Compromise and offers to compromise” provides:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

(Emphasis added.)

It was undisputed in this case that approximately one hour after Laura Perkins had her pick-up truck serviced at Wal-Mart’s Tire and Lube Express, the left front tire came off her vehicle as she was driving down Highway 59 near Gentry, Arkansas, leaving she and her three young children stranded on the side of the highway. Ms. Perkins, who was then on her way to attend a concert at the State Fair in Tulsa, Oklahoma, immediately telephoned Wal-Mart from the scene on her cellular phone. It was further undisputed that, shortly thereafter, two Wal-Mart employees arrived at the scene of the accident with a rental car for Ms. Perkins and helped transfer her belongings to the rental car so that she could be on her way. It was also undisputed that Wal-Mart made arrangements to have Ms. Perkins’ vehicle towed to a repair shop and that Wal-Mart paid to have her truck repaired.

Obviously anticipating that the Londagins would attempt to utilize this evidence to prove liability on the part of Wal-Mart, counsel for Wal-Mart moved in limine to exclude it. It was Wal-Mart’s contention that this evidence of the furnishing of consideration in attempting to compromise a disputed claim is expressly prohibited by Ark. R. Evid. 408. In responding to the call of its customer by providing her with alternative transportation and towing and repairing her vehicle, Wal-Mart clearly furnished a valuable consideration to Laura Perkins in compromise or attempted compromise of a disputed claim. The Rule, as noted above, states that such evidence is “not admissible to prove liability for . . . the claim or any other claim.” (Emphasis added.)

Clearly, the Rule precludes the introduction of this evidence not only with respect to any claim Laura Perkins might have brought against Wal-Mart, but also with regard to the claim that Johnny and Sue Londagin brought against Wal-Mart in this case. The Londagins contend, and the trial court apparently agreed, that Rule 408 is inapplicable to this case because there was no evidence that the claim was disputed at the time of Wal-Mart’s actions. The Rule does not define the word “disputed,” and there are apparently no Arkansas cases wherein this particular portion of Rule 408 has been interpreted. Ms. Perkins testified at trial that she remembers “being really upset” when she telephone Wal-Mart. She recalled telling Wal-Mart that “there’s no way we can fix the truck as it is sitting.” Common sense would dictate that when Wal-Mart received this call from its customer, obviously demanding some kind of action on Wal-Mart’s part, a disputed claim arose — at least from Wal-Mart’s perspective. Evidence of Wal-Mart’s efforts to compromise that claim by furnishing a loaner car and towing and repairing Ms. Perkins’ pick-up truck is precisely the type of conduct that Rule 408 is designed to prohibit from the jury’s consideration.

The “First Report of Incident” completed by Wal-Mart in connection with this accident confirms the fact that, at least in WalMart’s mind, this was an attempted compromise of a disputed claim. The incident report indicates at the top that the form is to be filled out “when there is a customer injury as well as when settling a claim in the field.” The form specifies settlement authority on the store level of up to $250 and at the district manager level of up to $1,000. In this case, in the blank provided for the insertion of the settlement amount, the incident report reflects that the district manager authorized a rental car and towing. What further evidence of a disputed claim need there be?

Here, we have a call from a customer who, in her own words, was “really upset” with Wal-Mart and telephoned the company from the side of the road expecting retribution; further, we have action taken by Wal-Mart in an attempt to resolve the controversy by the furnishing of a rental car and the towing and repair of the customer’s damaged vehicle. Wal-Mart submits that these undisputed facts were more than sufficient to have compelled the exclusion of the evidence pursuant to Rule 408. I agree.

As the majority notes, this Court has strictly construed Ark. R. Evid. 408 in the past. In Elrod v. G & R Construction Co., 275 Ark. 151, 628 S.W.2d 17 (1982), this Court went so far as to hold that the trial court should have granted the plaintiffs motion for a mistrial when a witness made a reference to settlement. Noting that the declaration of a mistrial is a drastic step, the Court nevertheless held that no admonition of the jury by the trial court would have been sufficient to eliminate any possible prejudice which might have resulted from the testimony.

In Ferguson v. Graddy, 263 Ark. 413, 565 S.W.2d 600 (1978), this Court affirmed a trial court’s decision to exclude evidence of payments made to the plaintiff by the defendant’s insurance carrier for lost earnings and medical expenses. Finding Ark. R. Evid. 409 controlling, the Court explained the rationale behind the Rule in these words:

... it is to the best interest of society and in keeping with the mores of the community that humanitarian and benevolent instincts not be hobbled by the hazard that assistance to an injured person be taken as an admission of liability in a personal injury action, when even lawyers and judges experience great difficulty in agreeing on such questions.

Id. at 417-18, 565 S.W.2d at 602. The same reasoning applies to Rule 408, which, like companion Rule 409, is clearly intended to foster the settlement of claims, whether or not a third-party claim is involved. Clearly, by including the language “or any other claim,” the Rule was intended to cover the very scenario we presently have before us.

If it is not entirely clear whether conduct on the part of a defendant is a true offer of compromise or simply an admission of liability, then the only safe position for the court to take is .one of exclusion of the evidence. Appellant cites two Connecticut cases in which the Appellate Court of Connecticut has taken this very position. In Rosales v. Lupien, 50 Conn. App. 405, 717 A.2d 821 (1998), the plaintiff Sophia Rosales was injured when she fell on a basement staircase while moving a washing machine into defendant David Lupien’s basement. Ms. Rosales sought to introduce evidence that Mr. Lupien offered to pay her medical bills and urged her to make a claim against his homeowner’s insurance policy. The appellant court affirmed the trial court’s decision to exclude the evidence, holding that “[wjhere it is not clear whether a statement is an offer of compromise or an admission of liability . . . and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.” 717 A.2d at 822. The court held that Mr. Lupien’s statements about paying the plaintiffs medical bills and making a claim against his homeowner’s policy “were not clearly admissions of liability. Rather they are more accurately characterized as offers of compromise and hence are not admissible.” Id.

In another Connecticut case, Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 587 A.2d 1056 (1991), a customer brought a negligence action against a drugstore for personal injuries she allegedly sustained in a slip-and-fall accident. The defendant contended that the trial court erred in allowing the plaintiff to testify that the store’s assistant manager had offered to pay her medical bills. Specifically, the evidence was that two days after the accident, an assistant manager directed another store employee to “give her anything she wants, and [there will] be no charge for it” and concerning “any bills that occurred to bring them in and Medi Mart would take care of them.”

The Connecticut Appellate Court held that the trial court should have excluded this evidence. Noting that the assistant manager’s comments were ambiguous, the court nevertheless found that the statements “could have easily been construed as an offer to settle or compromise.” The court went on to hold that “[w]here it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.” 587 A.2d at 1059. In other words, in order to promote the goal of settling disputes, any ambiguity which might arise from a defendant’s statements or actions must be resolved on the side of finding such conduct to be an offer of compromise, rather than an admission of liability.

The very same kinds of statements were allegedly made by Wal-Mart’s Tire and Lube Express manager, Jon Kuntz, in the instant case. Ms. Perkins was allowed to testify that she signed an affidavit stating that Mr. Kuntz told her not to worry, that Wal-Mart would take care of everything. To the extent that this Court finds any ambiguity with regard to Wal-Mart’s employee’s intent in making such statements, then the Rosales and Sokolowski cases stand for the proposition that all doubt must be resolved in favor of upholding the policy underlying Rule 408 by deeming the statements to be offers of compromise.

It is important to note that no witness testified in this case that any Wal-Mart employee admitted fault in causing this accident. On the other hand, all of the Wal-Mart employees who did testify clearly expressed Wal-Mart’s customer service policy — namely, to take whatever measures are necessary to keep its customers happy. Wal-Mart submits that, especially in light of its customer service policy, the only reasonable interpretation of Wal-Mart’s conduct in this case is that it was an attempt to resolve what it perceived to be a disputed claim arising out of service performed on Laura Perkins’s pick-up truck.

It is apparent from the Londagins’ counsel’s questioning of the witnesses at trial, and from his statements to the jury in closing argument, that the Londagins’ intent in introducing these matters into evidence was to leave the jury with the impression that WalMart was liable for negligence. In his closing remarks to the jury, the Londagins’ attorney stated, “The reason they authorized the repairs is they knew that they were responsible for that.” He later stated, “I think, ladies and gentlemen, that all the evidence will indicate that they knew they were responsible; that’s the reason they took that vehicle; that’s the reasons they had it towed to the Supercenter; that’s the reason they had it towed out to Bob Morey’s body shop; that’s the reason they had it towed to Ron Blackwell . . . . ”

Rule 403 of the Arkansas Rules of Evidence, which Wal-Mart also relied upon in support of its motion in limine, provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Here, Wal-Mart clearly suffered prejudice by the repeated references throughout the trial to its attempts to resolve the claim with Ms. Perkins. The real issue in this case was whether Wal-Mart was negligent in performing the tire rotation on Ms. Perkins’s vehicle. The fact that Wal-Mart responded to an agitated distress call from its customer, stranded at night with her three young sons on a rural highway while on her way to attend a concert in Tulsa, Oklahoma, should not have been allowed to be parlayed into an admission of liability.

In short, when the proof with respect to Wal-Mart’s settlement of Laura Perkins’s claim was admitted into evidence in this case, the public policy which underlies Rule 408 — that being to encourage the settlement of claims without resort to litigation — was seriously thwarted, and, if allowed in this case simply because a third party is attempting to introduce said evidence, will further undermine the purpose of the Rule. For all of these reasons, I would reverse the trial court on this issue and remand the case, holding that it was an abuse of discretion for the trial court to allow this evidence in clear violation of Rule 408. I, therefore, respectfully dissent.


source: Caselaw Access Project

author: RAY THORNTON, Justice.

license: Public Domain

text:
    YAMAHA MOTOR CORPORATION, U.S.A. v. RICHARD’S HONDA YAMAHA; North Little Rock Yamaha; and Arkansas Motor Vehicle Commission
    00-846
    38 S.W.3d 356
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Marshall S. Ney and Leigh Anne Yeargan, for appellant.

      Wilson, Engstrom, Corum & Coulter, by: Gary D. Corum, for appellees Richard’s Honda Yamaha and North Litde Rock Honda Yamaha.

      Mark Pryor, Att’y Gen., by: Arnold M. Jochums, Ass’t Att’y Gen., for appellee Arkansas Motor Vehicle Commission.
   RAY THORNTON, Justice.

The dispositive issue presented by this case is one of statutory interpretation. Specifically, this case requires us to interpret Ark. Code Ann. § 23-112-311 (a) and (b) (Supp. 1997). The factual circumstances are as follows. On February 19, 1998, appellant, Yamaha Motor Corporation, entered into an agreement with Bradford Marine to become a dealer of Yamaha motorcycles, Riva Motor Scooters, and motor-driven ATVs. Upon entering into the agreement, appellant notified the Arkansas Motor Vehicle Commission [the Commission] of its intentions. The Commission was created by Act 388 of 1975, and codified as Ark. Code Ann. § 23-112-101 et. seq. (Repl. 1999). The act created the Commission and granted it authority to regulate and license persons doing business in Arkansas, including manufacturers, distributors, new motor vehicle dealers, salesman, and others engaged in trading or selling motor vehicles. Among the stated purposes of the act are the prevention of fraud, unfair practices, and monopolies, fostering vigorous and healthy competition, and promoting the public safety and welfare. See Ark. Code Ann. § 23-112-102 (Repl. 1999).

The Commission interpreted Ark. Code Ann. § 23-112-311 (a), as remaining applicable to motor driven all-terrain vehicles, notwithstanding the provisions of Act 1154 of 1997. We disagree with that statutory interpretation and reverse.

The Commission notified appellees, Richard’s Honda Yamaha and North Little Rock Honda Yamaha, of appellant’s intent to establish an additional dealer point in Sherwood and invited protests. Subsection (a) requires notice to be given to the Commission and other new motor vehicle dealers in the relevant market area by a manufacturer seeking to enter into a franchise with a new motor vehicle dealer in that area. Subsection (a) also prescribes an opportunity for other dealers to. protest, and authorizes the Commission to hold a hearing and determine whether the new motor vehicle dealer should be established.

Perhaps reflecting a concern whether Act 1154 of 1997 had exempted ATVs from the licensure provisions of Ark. Code Ann. § 23-112-311, the Commission adopted Regulation 3-4 on March 11, 1998. This regulation required a hearing on every new dealer license application when other dealers are present within the relevant market area to determine whether good cause exists to grant such license regardless of whether a protest had been filed by existing dealers. The regulation also shifted the burden of proof from the dealers objecting to the new dealer to the party applying for a new Acense. Regulation 3-4 was patterned after Ark. Code Ann. § 23-112-311 before its 1997 amendment but added an additional factor for the Commission to consider when determining whether a new license should be issued. The regulation became effective immediately.

On March 13, 1998, appellees filed a protest with the Commission of the prospective establishment of Bradford Marine as a Yamaha ATV dealer, pursuant to Ark. Code Ann. § 23-112-311. On April 8, 1998, appellant filed a motion to dismiss appellees’s protest. Appellant contended that because the statute had been amended in 1997, the notice, protest, and hearing provisions of Ark. Code Ann. § 23-112-311 did not apply to the establishment of motorcycle or ATV dealers. Specifically, appellant argued that subsection (b)(3) of Ark. Code Ann. § 23-112-311, as amended by Act 1154 of 1997 exempted ATV dealers from the notice, protest, and hearing provisions. In the 1997 session of the General Assembly, subsection (b), providing exclusions from the authority of subsection^), was amended to read as follows:

(b) This section does not apply:
(1) To the relocation of an existing dealer within that dealer’s relevant market area, provided that the relocation not be at a site within seven (7) miles of a licensed new motor vehicle dealer for the same line make of motor vehicles;
(2) If the proposed new motor vehicle dealer is to be established at or within two (2) miles of a location at which a former licensed new motor vehicle dealer for the same line make of new motor vehicle has ceased operating within the previous two (2) years; or
(3) To new motor vehicle dealers of motorcycle, motorized cycles and motor driven all-terrain vehicles.

Id. (Emphasis added.) The emphasized language was added by Act 1154 of 1997.

The Commission then informed appellant that it would consider its motion to dismiss in conjunction with appellees’s protest pursuant to Ark. Code Ann. § 23-112-311, and the Commission’s new requirements pursuant to Regulation 3-4. On June 17, 1998, appellant Yamaha requested the recusal of some of the members of the Commission from participating in the protest hearing because they were named defendants in a federal lawsuit with appellant. All of the Commissioners recused from the matter, and the Governor appointed a special Commission to oversee the protest hearing.

On July 8 and 9, 1998, a hearing was held. Appellant Yamaha moved for reconsideration of its motion to dismiss. Once again, appellant argued that the Commission lacked jurisdiction to hear protests by motorcycle or ATV dealers after the 1997 amendment to Ark. Code Ann. § 23-112-311. The Commission denied appellant’s motion to dismiss. The Commission found that the legislature could not have intended to exclude new motor vehicles or ATVs from the provisions of subsection (a) and determined that the language contained in Act 1154 was a clerical error or legislative mistake that should be corrected by the Commission and the courts to reflect the intention of the Commission to continue to require notice, protest opportunities, hearings, and approval by the Commission before a new dealer of motor driven ATVs could be licensed.

Appellant also moved to dismiss the Regulation 3-4 hearing, contending that Regulation 3-4 was void as a matter of law The Commission deferred ruling on appellant’s motion to dismiss until the conclusion of the hearing. At the conclusion of the hearing, the Commission declined to rule on appellant’s motion to dismiss, but voted that it would not rely on Regulation 3-4 in its determination of whether to grant the new license.

After the presentation of the evidence, the Commission determined that there was good cause to deny the appointment of Bradford Marine as an additional ATV dealer for Yamaha, based upon its interpretation of Ark. Code Ann. § 23-112-311. The Commission then noted that if it had considered the application pursuant to Regulation 3-4, it would have reached the same result.

Appellant appealed the Commission’s decision to the Pulaski County Circuit Court contending that: (1) after the 1997 amendment to Ark. Code Ann. § 23-12-311, the Commission was without jurisdiction to consider appellees’s protests; (2) the Commission’s actions were arbitrary and capricious; (3) the Commission’s decision was based on prejudicial evidence improperly admitted; and (4) the Commission’s decision was not supported by substantial evidence. Appellant Yamaha also requested a declaratory judgment that Regulation 3-4 was void as a matter of law. In its January 13, 2000, order, the circuit court affirmed the Commission and found that Regulation 3-4 was not void as a matter of law. This appeal then ensued.

The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Board of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra.

In its threshold point on appeal, appellant argues that the Commission did not have jurisdiction to consider appellees’s protest. Appellant Yamaha challenges the Commission’s jurisdiction because Ark. Code Ann. § 23-112-311 as amended in 1997 excluded “new motor vehicle dealers of motorcycles, motorized cycles, and motor driven all-terrain vehicles.” Id.

It is with this factual background that appellant argues that because ATV dealers were exempted from the notice, protest, and hearing section of Ark. Code Ann. § 23-112-311, the Commission lacked authority to hold a hearing to determine whether there was good cause to deny the addition of Bradford Marine as a new Yamaha dealer. To determine whether the Commission had jurisdiction over appellees’s protest, it is necessary for us to look at the language of Ark. Code. Ann. § 23-112-311. The statute provides in pertinent part:

(a) (1) In all instances, in the event that a manufacturer or distributor seeks to enter into a franchise establishing an additional new motor vehicle dealer or relocating an existing new motor vehicle dealer within or into a relevant market area where the same line make is then represented, the manufacturer or distributor shall in writing first notify the Motor Vehicle Commission and each new motor vehicle dealer in that line make in the relevant market area of the intention to establish an additional dealer or to relocate an existing dealer within or into that market area.
(2) Within twenty (20) days of receiving the notice, or within twenty (20) days after the end of any appeal procedure provided by the manufacturer or distributor, any new motor vehicle dealer may file with the Motor Vehicle Commission to protest the establishing or relocating of the new motor vehicle dealer. When a protest is filed, the Motor Vehicle Commission shall inform the manufacturer or distributor that a timely protest has been filed, and that the manufacturer or distributor shall not establish or relocate the proposed new motor vehicle dealer until the Motor Vehicle Commission has held a hearing, nor thereafter if the Motor Vehicle Commission has determined that there is good cause for not permitting the addition or relocation of the new motor vehicle dealer.
(b) This section does not apply:
* * *
(3) To new motor vehicle dealers of motorcycle, motorized cycles and motor driven all-terrain vehicles.

Ark. Code Ann. § 23-112-311.

We have stated that the issue whether the statute divests the Commission of jurisdiction over the matters involved in this case is an issue of statutory interpretation. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). In other words, if the language of the statute is plain and unambiguous, the analysis need go no further. Id. A statute is ambiguous where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). We are also very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Id.

It is also a rule of statutory construction that the manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). An administrative interpretation is to be regarded as highly persuasive. Id. However, although an agency’s interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).

Informed by our rules of statutory construction, we turn to the case now on review. The statutory provision that is in dispute provides: “this section [the notice, protest, and hearing provision of Ark. Code Ann. § 23-112-311 (a)] does not apply... to new motor vehicle dealers of motorcycle, motorized cycles and motor driven all-terrain vehicles.” Ark. Code Ann. § 23-112-311(b)(3). This provision is not ambiguous. The language is not open to two or more constructions, nor is it of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Because the language is not ambiguous, we then look to its plain meaning to determine the legislative intent. Looking to the plain meaning of the language in the statute, we conclude that the legislature intended to exclude dealers of motorcycles and ATVs from the notice, protest, and hearing requirement of Ark. Code Ann. § 23-112-311 (a).

Appellees urge that the statute is ambiguous and that we are not bound by the plain meaning of the statute, but that we should consider the statute as a whole. Appellees contend that if we look to the statute as a whole, it contains language that would render the exclusion of motorcycle and ATV dealers from the notice, protest, and hearing provision of Ark. Code Ann. § 23-112-311 nonsensical. We disagree.

Appellees also argue that because Act 1042 of 1999 amended section (b)(3) of Ark. Code Ann. § 23-112-311, then we should assume that the language in the statute under consideration in this case that excludes the manufacturers of motorcycle and ATV dealers from the notice, protest, and hearing provision of Ark. Code Ann. § 23-112-311 was simply a scrivener’s error or drafting error or omission. Once again appellees’s argument is misplaced. We have been hesitant to consider subsequent legislation in our interpretation of previous statutes. See Ford, supra, (holding that when the express language of a statute is clear, later statutory changes should only be considered if it is obvious that there has been a drafting error or omission). In Ford, we noted that “merely because Act 117 of 1999 changes the language in the statute...does not necessarily mean that an error occurred in the drafting of the 1997 statute.” Id. We apply the same rationale to the case now before us. We cannot conclude that merely because Act 1042 of 1999 changed the language of section (b) of Ark. Code Ann. § 23-112-311, that that change necessarily means that an error occurred in the drafting of the 1997 statute.

Additionally, we note that Act 1042 of 1999 made substantial changes to Ark. Code Ann. § 23-112-311 (b), which appear to exceed any effort to correct a scrivener’s error or drafting omission. Specifically, Act 1042 of 1999, as marked for amendment, appeared as follows:

(1) To the relocation of an existing dealer, other than a dealer of motorcycles, motorized cycles, and all-terrain vehicles, within that dealer’s relevant market area, provided the relocation not be at a site within seven (7) ten (10) miles of a licensed new motor vehicle dealer for the same line make of motor vehicles; or
(2) If the proposed new motor vehicle dealer, other than a dealer of motorcycles, motorized cycles, and all-terrain vehicles, is to be established at or within two (2) miles of a location at which a former licensed new motor vehicle dealer for the same line make of new motor vehicle has ceased operating within the previous two (2) years; or
(3) To now motor vehicle dealers of motorcycles, motorized cycles, and motor driven ah-ter-rain vehicles To the relocation of an existing dealer of motorcycles, motorized cycles, and all-terrain vehicles, within that dealer’s relevant market area, provided the relocation not be at a site within twenty-five (25) miles of a licensed new motor vehicle dealer for the same line make of motor vehicles.

Id. It is apparent that the 1999 amendment was not designed to correct a scrivener’s error, but accomplished significant changes as reflected by the language added by the amendment. Accordingly, we reject appellees’ statutory construction arguments and conclude that we should rely upon the plain meaning of the statute.

While our interpretation of the statute requires that the Commission be reversed, we also consider two issues that may arise again in future litigation. We first consider whether allowing Patricia Stroud, the Executive Director of the Motor Vehicle Commission, to testify as to the intent and purpose of Act 1154 of 1997 was proper.

We have held that when a statute is plain and unambiguous, extrinsic facts should not be permitted to alter the meaning of the language used in the statute. See Yarbrough v. Witty, 336 Ark. 479, 987 S.W.2d 257 (1999). Simply stated, where the meaning of an act is clear and unambiguous, this court is primarily concerned with what the document says, rather than what its drafters may have intended. Id. We have also held that the testimony of the legislators with respect to their intent in introducing legislation is clearly inadmissible. Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). We have also noted that litde weight should be attached to expressions of individual members of the legislature. See State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S.W. 633 (1899).

At the hearing, Ms. Stroud testified as to her opinion of the Commission’s intent in proposing Act 1154 of 1997. She stated that the act, as it was drafted by the Commission, would have only excluded “the relocation of’ new motor vehicle dealers of motorcycles, motorized cycles, and motor-driven all-terrain vehicles. Ms. Stroud also stated that “all nine commissioners were in on the drafting” of Act 1154. Finally, she testified that Act 1154, as adopted by the legislature, made “no sense whatsoever” and that the language was the result of a “clerical error in which key words were left out.”

It was error to allow Ms. Stroud to testify. The Commission should have determined whether it had jurisdiction over the protest hearing without resorting to extrinsic evidence. Ms. Stroud was not qualified to testify as to the intent of the legislature in adopting the act. We hold that allowing Ms. Stroud to testify as to the Commission’s intent in proposing Act 1154, and the legislature’s actions in adopting Act 1154 was erroneous.

Next, we consider whether Regulation 3-4 is void as a matter of law. During the pendency of this case, the Commission enacted Regulation 3-4. Appellant Yamaha argues that Regulation 3-4 is contrary to Ark. Code Ann. § 23-112-311. Specifically, appellant contends that the regulation is invalid because: (1) it gives the Commission authority to hold a hearing on every new dealer application regardless of whether a protest has been filed; (2) it shifts the burden from the protesting party to establish why good cause exists to deny the application, to the applicant to show why good cause exists to grant the license; and (3) it articulates an additional factor for the Commission to consider in determining whether to grant a new dealer license. Regulation 3-4 states:

(4) Except as to buy/sell agreements an additional new motor vehicle dealer whose location will be within the relevant market area as defined by A.C.A § 23-112-103 of an existing dealer will be licensed by the Commission only after the Commission determines whether there is good cause to permit the additional license. In determining whether good cause exists to issue the license the Commission shall take into consideration the existing circumstances including but not limited to:
(A) Permanency of the investment of both the existing and proposed new motor vehicle dealer(s):
(B) Growth or decline in population and new motor vehicle purchases in the relevant market area:
(C) Effect of the consuming public to the relevant market area:
(D) Whether it is injurious or beneficial to the public welfare for an additional new motor vehicle dealer to be established:
(E) Whether the new motor vehicle dealers of the same line make in that relevant market area are providing adequate competition and convenient customer care for the motor vehicles of the line make in the market area which shall include the adequacy of motor vehicle sales and service facilities, equipment, supply of motor vehicles parts and qualified service personnel:
(F) Whether the establishment of an additional new motor vehicle dealer would increase competition and therefore be in the public interest:
(G) Whether the manufacturer or distributor in question possesses the ability to adequately supply the existing new motor vehicle dealers of the same line make in the relevant market area if any, with new motor vehicles parts and accessories:
This determination shall be made after a hearing held in accordance with Rule II.

Arkansas Motor Vehicle Commission Regulation 3-4.

We have held that an administrative regulation cannot be contrary to a statute. Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994). In this case, Regulation 3-4 is contrary to Ark. Code Ann.§ 23-112-311 (a) and (b) in several ways. First, Regulation 3-4 gives the Commission the authority to hold a hearing on every new dealer application. This provision should be contrasted with Ark. Code Ann. § 23-112-311 which permits hearings on some applications [not applications for new motor vehicle dealers of motorcycles or ATVs] for new dealerships only when a protest has been filed with the Commission. Id. (emphasis added). Additionally, Regulation 3-4 places the burden of proving good cause to grant a license on the party applying for the hcense. This provision is also contrary to Ark. Code Ann. § 23-112-311, which places the burden of establishing good cause to deny the application on the protesting party. Id. Accordingly, we hold that Regulation 3-4 is invalid as a matter of law.

We conclude that the Commission lacked jurisdiction to consider appellees’ challenges to appellant’s request to establish Bradford Marine as a new dealer of Yamaha products pursuant to Ark. Code Ann. § 23-112-311 and reverse the Commission’s actions in allowing protests, conducting a hearing, and denying a new license which were not authorized by statute. We also hold that the Commission’s effort to bootstrap the missing authority by adoption of Regulation 3-4 was invalid. Accordingly, we reverse and remand, instructing the trial court to remand the matter to the Commission for entry of an order granting Yamaha’s request for a new dealership license. See Ark. Code Ann. § 25-15-212 (h)(2) (Supp. 1999). As a result, it becomes unnecessary to address'appellant’s remaining points on appeal. See Culpepper v. Arkansas State Bd. of Chiropractic Examiners, 343 Ark. 467, 36 S.W.3d 335 (2001).

Reversed and remanded.


author: JIM HANNAH, Justice.

text:
    The CITY OF FORT SMITH, Arkansas v. The RIVER VALLEY REGIONAL WATER DISTRICT
    00-1136
    37 S.W.3d 631
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      Daily & Woods, P.L.L.C., by: Jerry L. Canfield, for appellant.

      Williams & Anderson, LLP, by: Peter G. Kumpe and Rhonda K. Wood, for appellee.
   JIM HANNAH, Justice.

The Crawford County Circuit Court entered an order establishing The River Valley Regional Water District (“River Valley”). The City of Fort Smith (“the City”) appeals the trial court’s decision challenging the sufficiency of the petition under Ark. Code Ann. §§ 14-116-101 — 14-116-202 and challenging the trial court’s determination that the petitioners demonstrated a necessity for the establishment of a regional water district.

Facts

On March 20, 2000, approximately 450 residents of Crawford County and the City of Barling, Sebastian County, petitioned the Crawford County Circuit Court to establish a regional water district pursuant to the Regional Water Distribution District Act (’’the Act”), Ark. Code Ann. § 14-116-101 — 14-116-801 (Repl. 1998 and Supp. 1999). The district would embrace all of Crawford County and the City of Barling, Arkansas.

In accordance with Ark. Code Ann. § 14-116-204, ( ) the circuit court clerk prepared a certified copy of the petition and transmitted it to the Arkansas Soil and Water Conservation Commission (’’the Commission”) for investigation and review. The Commission completed its investigation and review and filed its report with the Crawford County Circuit Court on May 26, 2000.

On May 30, 2000, the City of Fort Smith, an owner of real property within the boundaries of the proposed water district, filed a response to the petition, asserting that the water district should not be formed because the proposed named water source, the Pine Mountain Project, is not a valid source, and there had been no showing of necessity for the formation of the water district. Furthermore, the City alleged that the Act was not applicable to political subdivisions of the state, such as municipalities.

The trial court held a hearing on June 14, 2000, at which one witness testified and several members of the public made statements. The witness, Harry L. Short, testified on behalf of the petitioners. Short, the manager of Van Buren Municipal Utilities, testified that surface water supplies in Arkansas are “excellent,” and that shortages in water supplies in regional areas were being caused by the lack of facilities and strategic planning. He stated that the City’s planning would result in a possible water-supply deficit by 2005, and that the district’s inhabitants already were experiencing water volume restrictions. Short testified that while the City had planned to expand its water resources through the proposed expansion of the existing Lake Fort Smith project, this plan only considered the projected water use through the year 2050 with an increase of production of twenty-five million gallons of water per day. Short indicated that with the continued steady population growth of Crawford County and the surrounding areas, such planning could result in a lack of sufficient water. However, the proposed water district would be able to produce a possible sixty-five million gallons of water per day based on studies of several proposed sites in the region. Short testified that the proposed water district planned to initiate studies of several sites, including the Lee Creek and Pine Mountain sites, to determine which site would best accomplish the needs of the proposed district. On cross-examination, Short conceded that the proposed water district did not have a definite plan in place, but only planned to study several sites. He stated, “Other than the goal of looking at Pine Mountain, there is no preliminary engineering plan at this time. However, it is our intention that once we have been formed and can'pursue this as a legal entity, we will hire a consulting engineer and proceed with the preliminary engineering process.” Later, Short testified that once the planning was completed, the new water district would have to return to the Commission and to the court prior to approval of any project.

At the close of the hearing, the trial court issued a ruling from the bench finding that the focus should be on the long-range planning for water, and that fifty years in the future is not that long for the growth and planning of water use. The court noted that it found a need for the new water district and that its creation was in the best interest of the citizens to at least conduct studies to determine whether another source could be developed to enhance the resources of the region. The court also specifically excluded Fort Smith and its property from the new water district, and urged cooperation among the districts. The trial court’s order was reduced to a written judgment, which was filed on June 22, 2000. The City filed its notice of appeal on July 17, 2000.

Standard of Review

Our standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000); City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992). We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).

The Regional Water Distribution District Act

This case is governed by Act 114 of 1957, the Regional Water Distribution District Act. The Act, codified at Ark. Code Ann. §§ 14-116-101 — 14-116-801, governs the creation and operation of regional water districts in Arkansas.

The legislature intended the Act to be construed liberally, and that the “enumerating of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.” Ark. Code Ann. § 14-116-105. Ark. Code Ann. § 14-116-102 states as follows:

Public nonprofit regional water distribution districts may be organized under this chapter for any one (1) or more of the following purposes:
(1) Acquisition of water from wells, lakes, rivers, tributaries, or streams of or bordering this state or from existing reservoirs heretofore created by the construction of dams by or under the direction and supervision of the United States Army Corps of Engineers;
(2) Acquisition of water, water storage facilities, and the storage of the water in reservoirs created by the construction of multipurpose dams by or under the direction and supervision of the United States Army Corps of Engineers, or by the water district with federal financial or other assistance furnished by the United States Secretary of Agriculture under the provisions of the Watershed Protection and Flood Prevention Act or any other federal law;
(3) Purification, treatment, and processing of the water;
(4) Furnishing the water to persons desiring it;
(5) Assisting in the installation and operation of the water and transportation facilities of persons who are furnished water by the water district and the acquisition, supply, or installation of equip-' ment necessary therefor;
(6) Transportation and delivery of the water to persons furnished it by the water district.

The City raises only two main issues. First, the City argues that the court must determine whether the trial court erred in granting the petition to form the water district based on the sufficiency of the language of the petition and whether the Act is applicable to municipalities. Inherent in this first issue is also the question of whether the statutory language is broad enough to encompass a “planning” stage within the, “acquisition” language in the statutes. Second, the City argues that the court must determine whether the trial court erred in finding that there was a necessity to form a new water district to conduct a study of potential water sources.

Validity of the Petition

The City argues that the petition failed to identify a particular project to acquire water from one or more of the sources provided in Ark. Code Ann. § 14-116-201. During the hearing, Short testified on behalf of the petitioners about concerns regarding the present water supply within the proposed water district, and that the proposed water district was looking at several projects including the Pine Mountain project that would involve damming Lee Creek and the Arkansas River. Short admitted that the petitioners did not have a preliminary engineering report and that they were waiting on the establishment of the district before they began that process. The City relies on this testimony for the argument that the district was formed prematurely. Specifically, the City contends that a water district may not be created for the purpose of planning without an identified project that could be evaluated by the Commission and acquired by the district.

Arkansas Code Annotated Section 14-116-102(1) provides in part that a public nonprofit regional water distribution district may be organized for the purpose of “ [acquisition of water from webs, lakes, rivers, tributaries, or streams of or bordering this state or from existing reservoirs heretofore created by the construction of dams by or under the direction and supervision of the United States Army Corps of Engineers [.]” Ark. Code Ann. § 14-116-201 provides that a petition for establishing a water district may be applied for by at least 100 registered voters living within the proposed district. Ark. Code Ann. § 14-116-201 states in pertinent part:

When there is water available for industrial, municipal, or ■agricultural irrigation water supply purposes from wells, lakes, rivers, tributaries, or streams of this state or bordering on this state or from reservoirs heretofore created by the construction of multipurpose dams by or under the direction and supervision of the United States Army Corps of Engineers on any of the rivers, tributaries, or streams of or bordering on this state, or when the Congress of the United States of America has enacted a law authorizing the construction of a reservoir by or under the supervision and direction of the United States Army Corps of Engineers on any of the rivers, tributaries, or streams of or bordering on this state, or when a proposed reservoir on any stream of this state is to be constructed by a water district established under this chapter with federal or other assistance furnished by the United States Secretary of Agriculture under the provisions of the Watershed Protection and Flood Prevention Act or any other federal law....

This section provides four alternative water sources including 1) a reservoir constructed by the Army Corps of Engineers; 2) construction of a reservoir enabled by a law of Congress; 3) a proposed reservoir to be constructed with federal funds; or 4) water available from any wells, lakes, rivers, tributaries, or streams in this state or bordering this state. The statute only requires that there be water available from one of these sources.

The requirements for the petition’s contents are noted in Ark. Code Ann. § 14-116-202, which states:

The petition shall contain:
(1) An accurate description of the territory which it is proposed shall be embraced within the water district, and a map of the territory shall be attached to the petition as an exhibit thereto;
(2) A brief and concise statement describing the water source, whether it is wells, lakes, streams, a reservoir heretofore created by the construction of a dam, or a proposed reservoir authorized by the Congress of the United States of America or a proposed reservoir to be constructed by the water district with federal financial or other assistance furnished by the United States Secretary of Agriculture under the provisions of the Watershed Protection and Flood Prevention Act or any other federal law;
(3) A brief and concise statement showing the necessity for forming and operating the proposed water district, describing the benefits to be received therefrom by the residents and property owners in the territory proposed to be embraced in the water district, and if the water district proposes to use project improvement plans and assessments, a statement that such petitioners are aware of the power of the district under this chapter to levy taxes;
(4) The proposed name for the water district;
(5) The proposed location of the principal office of the water district;
(6) Other and additional information appropriate and useful in support.

Here, the petition reflects that the proposed water district shall be all of Crawford County and the City of Barling, located in Sebastian County. A map of the territory was attached to the petition. The petition also contains a brief description of the proposed water source, stating:

The proposed source of water will be created by the construction of a dam on Lee Creek north of the City of Van Burén, Crawford County, Arkansas, or of an alternative site that may be selected, as authorized by the Congress of the United States of America by the Flood Control Act of 1965 (Title II, Public Law 89-298) substantially in accordance with the recommendations of the Chief of Engineers in House Document no. 270, 89th Congress.

The petition further contained a brief statement showing the necessity for forming the district, the proposed name of the district, and the proposed location of the district’s office.

The petition is sufficient under Ark. Code Ann. § 14-116-202 given the mandate in Ark. Code Ann. § 14-116-105 that the Act “shall be construed liberally.” That section also provides that any object or purpose specifically enumerated in the Act “shall not be deemed to exclude like or similar” objects or purposes. In other words, a stated purpose for establishing a water district need not be one of the purposes enumerated in the Act, so long as that purpose is similar to those enumerated purposes.

Although the statutes do not include language that a district may be preformed for the purpose of planning a water project, planning is an inherent necessity for acquiring water for the district’s inhabitants. The overall purpose for the creation of the water district is to ultimately provide the inhabitants of the water district a viable water source independent of the City.

The Act does not require a proposed district to have a concrete plan identifying the particular project on a particular water source that will be used to distribute water to the inhabitants of the proposed district. The Act only requires that there be a water source from which such distribution might be made. In this case, the petition named Lee Creek as a source of available water. Testimony at the hearing also named the Arkansas River as a possible source.

The Act should be read as authorizing the formation of a district that will then commission a study of the feasibility of creating a particular reservoir of water. It is impractical to require individual inhabitants of a proposed water district to undertake the expense of an engineering survey to determine potential water sources. Because the Act requires liberal interpretation and permits the formation of a district for purposes similar to those enumerated in the Act, this court holds that the Act permits the formation of a district for the purpose of evaluating options for possible water-supply sources.

The Commission’s Report

The City next argues that the petitioner’s lack of an identified project made it impossible for the district to gain “approval” with the Arkansas Soil and Water Conservation Commission. The petition, once filed with the court, must then be forwarded to the Commission for review pursuant to Ark. Code Ann. § 14-116-204, which states:

(a) Upon the filing of the petition in the office of the circuit clerk for the county or any one of the counties where the reservoir or other water source as referred to in 14-116-102(1) is located or to be located, in whole or in part, the clerk shall prepare a certified copy of the petition and transmit the copy to the commission within five (5) days from the date of the filing of the petition.
(b) Upon receipt of the certified copy, the commission shall institute an investigation of the proposed district and its territory and purposes. The commission shall, within thirty (30) days after receipt of the copy, transmit a written report of its findings on the petition to the clerk of the circuit court.
(c) The report of the commission shall include, but not be limited to:
(1) A finding as to how the proposed boundaries of the water district conflict with the boundaries of any existing water district of which the commission may have supervisory jurisdiction;
(2) A finding as to whether the statement of purposes contained in the petition conforms with the intent and purposes of this chapter as applied to the area proposed to be included within the boundaries of the water district;
(3) A finding as to whether the organization of the proposed water district would promote the general welfare and be conducive to the purposes of this chapter;
(4) Any conditions, revisions, including revisions of area, or limitations which the commission deems necessary to the organization of the water district, the conditions, revisions, or limitations to be stated as changes in the petition. These changes shall thereupon become a part of the petition and be deemed effective without another amendment thereto.

Here, the Commission investigated and filed its report making findings in each of the four enumerated categories in Ark. Code Ann. § 14-116-204(c). The report also contained a caveat, which stated:

There is no preliminary engineering plan, so the Commission is limited in its ability to review the proposal. In the absence of concrete plans, the Commission recommends that the issues set forth below be resolved before the court acts on the petition.

Those issues were 1) whether the proposed district is necessary to provide future water needed in the proposed area; 2) whether water supplied by Fort Smith is and will be adequate to serve the area; and 3) whether, as a current supplier of water to the area within the boundaries of the proposed district, Fort Smith should be an active participant in determining whether the district should be formed.

According to Lyon v. White River-Grand Prairie Irr. Dist., 281 Ark. 286, 293, 664 S.W.2d 441 (1984), if the Commission mandates certain requirements, the trial court has no alternative but to comply. However, if the Commission merely recommends certain actions to the trial court, no such obligation exists. Id. Here, the Commission’s report reflects recommendations of issues to be resolved before acting on the petition. Recommendations are not the same as mandates. Thus, the trial court did not have to resolve the issues prior to ruling on the petition. The recommendations made by the Commission were addressed by the trial court, and the court made the suggested findings and excluded from the district any property owned by the City of Fort Smith.

The Commission’s report did contain a statement that appears to be mandatory: “The effect of the proposed district on Fort Smith’s long-term plans to increase its water supply capacity through enlargement of Lake Fort Smith must be determined.” This statement is not contained in the same paragraph as those issues the Commission recommended to be resolved prior to the petition being granted. In compliance with this mandate, the trial court considered the evidence presented at the hearing regarding the effect that the formation of the district would have on the Lake Fort Smith expansion project. The order reflects the trial court’s finding that “there was presented no substantial evidence that creation of the proposed district will interfere with Fort Smith’s plans to increase its water supply capacity through enlargement of Lake Fort Smith.” This finding is not clearly erroneous.

It should be noted that whenever the district attempts to take action on a particular project, Ark. Code Ann. § 14-116-501 (d) requires a water district to obtain the Commission’s approval of any proposed improvement plan. In addition, the district also must obtain the trial court’s approval of any proposed improvement plan. Ark. Code Ann. § 14-116-502.

Applicability of Ark. Code Ann. § 14-116-107

Next, the City argues that the petition and court order are in conflict with Ark. Code Ann. § 14-116-107, which states:

The provisions of § 14-116-101 et seq., the Regional Water Distribution District Act, as now or hereafter amended, shall not be applicable to agencies of the State of Arkansas or of political subdivisions of the state, nor to lands owned by such agencies.

The City contends that this statute means that a district created pursuant to the Act may not preempt governmental entities from performing their governmental functions. The City argues that municipalities may not be contained within regional water districts.

. River Valley argues that this statute means that the State and its political subdivisions are not required to follow the dictates of the Act before they may undertake to furnish water to their citizens. In other words, the State, cities, and counties may furnish water to their citizens without having to form a regional water district under the Act.

The City is wrong in its argument as to the meaning of Ark. Code Ann. § 14-116-107. It is clear on its face that Ark. Code Ann. § 14-116-107 merely provides that the State and its political subdivisions do not have to seek formation of a regional water district in order to furnish water to their respective citizens. The purpose of the Act is to supplement, not to preempt, governmental entities from delivering water to the citizens. The Act does not prohibit municipalities from being contained within the boundaries of regional water districts.

Pursuant to the Commission’s report, the trial court excluded from the district any property owned by the City. The trial court’s order provided as follows:

2. Such regional water distribution district be and the same is hereby made subject to all of the terms and provisions of the aforesaid act, viz, The Regional Water Distribution Act.

Before the district can take action on any project, Ark. Code Ann. § 14-116-501 (d) requires a water district to obtain the Commission’s approval of any proposed improvement plan. Ark. Code Ann. § 14-116-502 requires the district also to obtain the trial court’s approval of any proposed improvement plan. Thus, the trial court retains jurisdiction to address issues that might arise in the future including, but not limited to, municipal boundary issues.

Compliance of Circuit Court Order with the Act

The City next argues that the absence of a proposed water supply project makes it impossible for the court’s order to comply with the Act. Specifically, the City argues that Ark. Code Ann. § 14-116-206(b) requires the court to “recite the matters” the water district has control over. Ark. Code Ann. § 14-116-206(b) states in part:

(b) The order establishing the water district shall empower the water district, to the full extent that the State of Arkansas can grant that right, the right to acquire absolute title to and use of water stored in any water source as referred to in 14-116-102 or in the reservoir created, or to be created, by the construction of the dam by, or under the direction and supervision of, the United States Army Corps of Engineers or by the water district with federal financial or other assistance furnished by the United States Secretary of Agriculture under the provisions of the Watershed Protection and Flood Prevention Act, or any other federal law. The water district shall by the order be empowered to enter into contracts of assurances with the United states of America for the storage, procurement, or removal of the water from the reservoir or other such water source. The order establishing the water district shall have all the force and effect of a judgment.

Under this statute, the City contends that the trial court was specifically supposed to rule that the district had the power to acquire the specific land for a specific project and that the district had the power to contract with the United States government. In reading this statute, however, it is clear that there is no such requirement that the trial court must make that finding. Instead, by virtue of becoming a water district by order of the court, the district is empowered to acquire land for the water source, contract with entities, and perform its duties pursuant to the Act. See Ark. Code Ann. §§ 14-116-401 — 14-116-407.

Necessity to Form the River Valley Regional Water District

Finally, the City argues that the trial court clearly erred in finding a necessity to form the new water district to conduct a study of potential water sources. Again, in Ark. Code Ann. § 14-116-202(3), the petition presented to the court must contain a “brief and concise statement showing the necessity for forming and operating the proposed water district.” The petitioners complied with this requirement in the petition they filed. Furthermore, Ark. Code Ann. § 14-116-206(a) included the requirement that the trial court find that the proposed water district is “in the best interest of the person residing or owning lands within the boundaries of the proposed water district....” In its written order, the trial court found the following based on the petition and the evidence presented:

***
4. It is in the best interests of the persons residing or owning land within the boundaries of the proposed district that the same be established under the terms of The Regional Water Distribution Act, Act 114, Ark. Acts. Of 1957, as amended (Arkansas Code Annotated § 14-116-101 et seq.
5. The proposed district is necessary to provide for future water needs in the proposed geographic region.
6. There is substantial uncertainty that water supplied by Fort Smith is and will be adequate to meet long-term future needs in the area.
7. There was presented no substantial evidence that creation of the proposed district will interfere with Fort Smith’s plans to increase its water supply capacity through enlargement of Lake Fort Smith.
***

The City argues that there is no need to create a regional water district to study potential water sources at this time because such studies have already been done or can be accomplished by an inter-local government agreement. The City urges that because no specific plan is in place, there is no necessity to conduct another study. In addition, the City argues that there will be no need for the water project until the year 2050; therefore, there is no necessity today.

The trial court found that the district was necessary to provide for future water needs in the proposed geographic region, and that it is in the best interest of the people residing within the district that the district be created. The trial court further found that there is substantial uncertainty that water supplied by Fort Smith is and will be adequate to meet long-term future needs in the area. We cannot say that the trial court was clearly erroneous in finding that the creation of the water district was necessary and that it was in the best interest of the people residing within the district.

Affirmed.


author: PER CURIAM.

text:
    ORTHO-NEURO MEDICAL ASSOCIATES v. Tonya M. JEFFREY v. Paula L. Rauch
    00-1480
    37 S.W.3d 577
    Supreme Court of Arkansas
    Opinion denying rehearing delivered March 1, 2001

      Oscar Stilley, for appellant.
    No response.

        See 343 Ark. 466, 37 S.W.3d 577 (2001).

   PER CURIAM.

Mr. Oscar Stilley, appellant’s counsel, seeks rehearing of this court’s denial on January 25, 2001, of his motion for rule on clerk. Appellant’s record was due to be filed on December 19, 2000, but was not delivered and filed in the clerk’s office until December 20, 2000. Mr. Stilley asserts he gave the appellant’s record to Airborne Express for delivery on December 19, 2000, but, as noted, Airborne Express did not deliver the record until December 20, 2000'. In ah attempt to explain missing the December 19 deadline, Mr. Stilley attached to his motion for rule on the clerk an Airborne Express “shipment tracking report” which reflects “delivery was attempted on December 19, 2000, at 9:42 a.m.” Mr. Stilley included in his motion the assertion that the failure of Airborne Express to deliver the record was because he was told the clerk’s office was moving its office to another location on the morning of December 19, 2000. He never identified the person who may have suggested the record was not filed because the office was moving. The clerk’s office was open for business and received filings on December 19, 2000.

In his petition for rehearing, Mr. Stilley states that this court’s January 25, 2001 per curiam suggested his motion for rule on clerk was not appropriate because there was no affidavit showing the clerk’s office was closed on December 19, 2000. Mr. Stilley then says, “I don’t know why the package was not delivered that day. It really does not matter.” In his petition, he continues:

If I could prove that the Clerk’s personnel were not available when the Airborne Express delivery man entered, would that change the equation? How could that be done and why would it matter anyway? Should a citizen’s appeal rights turn on the circumstances of a delivery attempt that the litigant knew nothing about and over which the litigant had no control? Would an affidavit from the deliveryman help? It is almost uncontrovertible that the deliveryman walked in, found no one to sign for the package, and left.
Is it too much to ask the Court to consider this question, despite the fact that a deliveryman found no one to sign for the package? Surely justice is not so scarce and dear that Appellant cannot have a small amount of the Court’s time to decide this question.
Is it too much to expect that the Court will not punish a litigant for something that is totally out of his control? This Court cannot reasonably expect counsel to accompany their packages to ensure safe delivery, or to hand deliver every package, or to just generally doubt that an overnight carrier with a success rate of 99% plus is going to fail, for whatever reason, on a specific occasion.
Each time that the Court acts in a way that is not rational, predictable, or reasonable, the Court loses part of its referent power. When a court deprives a citizen of rights that would otherwise accrue, based upon events which are not reasonably or logically within the control of that citizen, the court loses part of its referent power.
Therefore, the Court’s published opinion stating that the record was not delivered to the Clerk’s office on the 19th of January is inaccurate. The record was delivered then, but it was not left. A perfect tender was made, but it was not accepted for the apparent reason that no one could be found.

Arkansas Rule of Appellate Procedure — Civil 5 clearly provides when an appellate record is due and how an attorney can obtain an extension to file a record. It is also clear that an appellant is procedurally barred from pursuing an appeal when there is failure to comply with Rule 5. Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991). We view Mr. Stilley’s petition for rehearing to be argumentative and devoid of any legal or factual basis for reversing our decision. See Ark. Sup. Ct. R. 2-3 (g).

For the reasons stated above, we deny Mr. Stilley’s request for a rehearing of our decision of his motion for rule on clerk. Mr. Stilley’s petition borders on recklessness and borders on being disrespectful to this court. We refer the matter to the Professional Conduct Committee for whatever action it determines is appropriate. See Model Rules of Professional Conduct Preamble, Rule 3.5(c); Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994).