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

text:
    ARKANSAS INDUSTRIAL DEVELOPMENT COMMISSION and the State First National Bank of Texarkana, Trustee v. FABCO of Ashdown, Inc., L.N. Yates, Jr., Frances Yates, James A. Gunter, Jr., Marguerite Gunter, Lacy Harris and Lois Harris
    92-34
    847 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993
    [Rehearing denied March 15, 1993.]

      Friday, Eldredge & Clark, by: Herschel H. Friday, Elizabeth J. Robben, Robert S. Shafer and James C. Baker, Jr., for appellants.

      Autrey & Autrey, by: L. Wren Autrey and LeRoy Autrey, for appellees.
   Tom Glaze, Justice.

On December 1, 1982, the City of Ashdown (pursuant to Act 9 of 1960 (Ark. Code Ann. §§ 14-164-201 to -224)) issued $700,000 in Industrial Development Revenue Bonds without an election by the voters of Ashdown. Proceeds of the bonds were used to purchase a trailer manufacturing enterprise in the city from Ashdown Manufacturing Company. The city then leased the manufacturing facility to FABCO of Ashdown under a lease agreement dated November 1, 1982. The city planned to use the lease payments to pay off the bonds.

In order to secure the insurance of the bonds, the State First National Bank of Texarkana, the trustee, was granted a first mortgage on the property occupied by FABCO and a first lien on all of the machinery, equipment and other personal property subject to the lease. The city wanted the Arkansas Industrial Development Commission (AIDC) to guarantee the bonds and to help with their sale. Before it would guarantee the payment of the bonds, AIDC obtained individual guaranties from appellees, L. N. and Frances Yates, Lacy and Lois Harris, and James and Marguerite Gunter. These agreements guaranteed the payment of principal and interest on the bonds as well as the payment of rental by FABCO. At the time of the execution of these guaranties, L. N. Yates was the president and principal shareholder of FABCO, and Lacy Harris and James Gunter were principal shareholders, officers and directors of Ashdown Manufacturing.

FABCO failed to make any payments under the lease agreement, but continued to operate its business. On September 30,1983, AIDC sent a letter to the Yateses, the Gunters and the Harrises, that FABCO was in default for the lease payment due June 30, 1983. The letter reflected that it was formal notice that within five days after receipt of the letter, a complaint in the form as that attached will be filed if AIDC does not receive full reimbursement. On April 1,1985, AIDC and the trustee filed suit against FABCO seeking payment of principal and interest on the bonds and lease payments due under the lease agreement. In the same lawsuit, AIDC sought recovery from the individual guarantors for the amount paid by AIDC under its guaranty — $997,897.20. This money was used to pay the principal and interest payments due on the bonds.

In May of 1985, FABCO filed for reorganization under Chapter 11 of the Bankruptcy Code. It was discharged in a Chapter 7 proceeding in May of 1986 and its assets were sold.

Both sides filed motions for summary judgment. The trial court granted the guarantors’ motion for summary judgment against AIDC holding (1) the bonds are tainted because they were not approved by the voters of the City of Ashdown as required by the Arkansas Constitution; and (2) AIDC failed to give proper notice of FABCO’s default to the guarantors; thus, the guarantors are released from liability. The trial court held that appellants’ complaint against the individual guarantors should be dismissed with prejudice. Also, the trial court ruled that neither side was to recover attorney’s fees. Appellants appeal from the trial court’s decision. Guarantors cross-appeal from the trial court’s order denying attorney’s fees.

If we affirm the trial court’s holding that the guarantors were not given proper notice, it will be unnecessary to address the constitutional issue raised in this appeal. Therefore, we dispose of appellants’ second argument first. The following pertinent provisions of the guaranty agreements must be reviewed in deciding the notice issue:

Section 2.2. If FABCO should at any time default in making any rental payments under the Lease when due, . . ., the Guarantor hereby unconditionally covenants that he will make such payments within five days after the receipt by the Guarantor of written notice from either the City, AIDC or the Trustee; provided, however, unless a default shall have occurred and be continuing under Section 3.3 hereof, attached to such notice shall be certified evidence that suit has been filed by either the Trustee, AIDC or the City against FABCO and Yates seeking to recover from FABCO and Yates such delinquent rental payments.
Section 2.3. Guarantor hereby guarantees to AIDC (a) the full and prompt payment of the principal of and premium, if any, on the Bonds when and as the same become due . . ., and (b) the full and prompt payment of interest on the Bonds when and as the same become due; provided, however, unless a default shall have occurred and be continuing under Section 3.3 hereof, either AIDC, the Trustee, or the City shall have filed suit seeking such payments of principal and interest from FABCO and Yates before Guarantor shall be liable hereunder . . ..
***
Section 3.3. In the case of default other than those under Sections 2.2 or 2.3 hereof, AIDC shall give to Guarantor written notice of such default, and if such default shall continue unremedied for thirty (30) days following receipt of such notice, AIDC shall have the same rights and remedies afforded by Section 3.2 above.
***
Section 3.5(a). The obligations of the Guarantor under this Guaranty Agreement are his separate and several obligations, and any person seeking to enforce same need not pursue any remedies which such persons may have against FABCO or Yates beyond the filing of suit against the same, or against any other person or exhaust any remedy against FABCO, Yates or any other person before proceeding hereunder, but may proceed at once against the Guarantor upon default as set forth above. (Emphasis added.)

First, under this issue, the appellants argue that the trial court erred in not distinguishing between the guaranty of the rental payments (section 2.2) and guaranty of the principal and interest on the Bonds (section 2.3). Specifically, the appellants argue that the guaranty of the principal and interest (section 2.3) has no notice requirement and cannot possibly be stricken for the supposed failure to give the required notice.

The appellants’ argument fails to address the appellees’ position and the trial court’s holding. The appellees admit that they received notice that FABCO was in default on September 30, 1983. This is not why the appellees argue that the appellants did not comply with the agreement. Instead, they argue that the appellants failed to comply with the guaranty agreement by not filing suit against FABCO first before seeking relief against the guarantors. Section 2.2 required appellees to have filed suit and the record clearly reflects no such suit had been filed. Appellants waited until April 1, 1985, or eighteen months before filing suit against the Gunters, the Harrises and FABCO and Y ates. By this time, FABCO was in bankruptcy.

Arkansas case law is well-settled that a guarantor is entitled to have his undertaking strictly construed and that he cannot be held liable beyond the strict terms of his contract. Inter-sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Lee v. Vaughn, 259 Ark. 424, 534 S.W.2d 221 (1976); National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963); Gulf Refining Co. v. Williams Roofing Co., 208 Ark. 362, 186 S.W.2d 790 (1945). In Inter-sport, this court held that, according to the better rule of law, a material alteration or departure from the contract of guaranty, without the guarantor’s consent, will discharge him whether or not he is prejudiced thereby.

Here, the trial court’s holding was based upon the parties’ guaranty requirement requiring the trustee, AIDC or the city to file suit first against FABCO and Yates before seeking relief against guarantors, the Gunters and Harrises. The materiality of that requirement is obvious from the reading of the parties’ agreement. It also is supported by the record. The trial court pointed out that FABCO actually defaulted on its lease-payment obligation in June of 1983, which was two years prior to its filing bankruptcy. Obviously, this undisputed fact met with the material purpose of the guaranty requirement relied upon by the Gunters and Harrises, namely, to require the obligees, the trustee and AIDC, to first place demand on FABCO, as the principal obligor, so as to satisfy or reduce any liability these guarantors would ultimately bear.

The Gunters and Harrises were not required to show they were actually prejudiced by the trustee’s, AIDC’s material failure or departure from complying with the guaranty requirements. See Intersport, Inc., 281 Ark. 56, 661 S.W.2d 367. Rather, it is AIDC’s and the trustee’s burden to show their material breach of the parties’ agreement did not result in any harm or damages to the Gunters and the Harrises. Accordingly, we uphold the trial court’s finding that the appellants failed to follow the conditions of the parties’ agreement and holding the guarantors should be released.

Both sides contend on appeal that the trial court erred in denying them attorney’s fees. Of course, appellants are clearly not entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 (Supp. 1991), since they have not prevailed in their suit. Appellees, however, claim their entitlement to such fees as prevailing parties. Section 16-22-308 specifically provides for reasonable attorney’s fees to the prevailing party in a civil action involving breach of contract but does so subject to the terms of the contract. Here, section 2.6 of the parties’ agreement provides, “ [Gjuarantor agrees to pay all costs, expenses and fees, including all reasonable attorney’s fees which may be incurred by AIDC in enforcing or attempting to enforce this Guaranty Agreement following any default on the part of the Guarantor hereunder, whether the same shall be enforced by suit or otherwise.”

We have held, of course, that the guarantors here have not defaulted, so appellants are not entitled to attorney’s fees under the above contract. On the other hand, appellees in no way waived their rights to attorney’s fees under the circumstances here since they did not default and, in fact, prevailed in their argument by showing appellants had failed to comply with the parties’ agreement. Accordingly, we further hold that the appellees are entitled to reasonable attorney’s fees under § 16-22-308, and remand this cause to the trial court to determine the amount.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. In this decision, the majority has swept aside decades law on the discharge of a guarantor’s obligation. The majority, first, has obliterated the requirement that a determination of material alteration must be made prior to discharge. But the decision also affirms the placement of the burden of proof on what Arkansas cases and American Jurisprudence have long held to be the wrong party. As this is an appeal from a summary judgment, I would reverse and remand this case so that proof of material alteration could be presented by the guarantors and the issue resolved.

Initially, this decision misplaces the burden of proof for showing material alteration. The trial court stated in its order: “There has certainly been no showing that the guarantors have not been prejudiced by the Plaintiffs’ failure to abide by the terms of the agreement.” It is, though, incumbent on the guarantors to show material alteration — not the principals. Furst & Thomas v. Varner, 156 Ark. 327, 245 S.W.2d 818 (1922); Continental Ozark, Inc. v. Lair, 29 Ark. App. 25, 779 S.W.2d 187 (1989); Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981); see also 38 Am.Jur.2d, Guaranty, §§ 107, 124 (1968). This authority is implicitly overruled by this decision, or, at the very least, this area of the law is now confused.

Secondly, an alteration is not material unless the guarantor is placed in the position of being required to do more than the original undertaking. Wynne, Love & Co. v. Bunch, 157 Ark. 395, 248 S.W.2d 286 (1923); Continental Ozark, Inc. v. Lair, supra; Vogel v. Simmons First National Bank, 15 Ark. App. 69, 689 S.W.2d 476 (1985). In addition, the test for discharge in Arkansas is whether the obligation of the guarantor has been materially altered — not whether the guarantor has been prejudiced. Granted, in some instances material alteration results in prejudice, but the terms are not synonymous in all instances as this court has recognized:

Arkansas has adopted the well-settled principle of law of guaranty that a material alteration in the obligation assumed, made without the assent of the guarantor discharges him from liability. . . . According to the better rule of law, a material alteration in or departure from the contract of guaranty, without the guarantor’s consent, will discharge him, whether or not he is prejudiced thereby.

Inter-Sport, Inc. v. Wilson, 281 Ark. 56, 57, 661 S.W.2d 367 (1983). Inter-Sport did not do away with the material alteration test, although it did hold that prejudice to the guarantor was irrelevant. Under Inter-Sport, a material alteration or departure must still occur before there can be a guarantor discharge.

The trial court did not mention material alteration in its order and from all appearances did not consider it. The test for material alteration, however, is unmistakably a factual one: was the guarantor placed in a position of being required to do more than the original undertaking? That finding is imperative to a decision in this case which means summary judgment in this instance is peculiarly inappropriate. Without such a finding, no decision can be made under existing Arkansas law.

The majority makes assumptions to circumvent the absence of a finding on material alteration by the trial court. This is the first time to my knowledge that this court has assumed a finding on a pivotal issue of material fact for the purpose of affirming a summary judgment. If we allow a summary judgment to stand based on what this court speculates that the trial court assumed about a controlling principle of law and a decisive material fact, with nothing more, then we place the non-moving party at a decided disadvantage because that party has no opportunity to address or contest the issue. A summary judgment must be premised on a clear finding that there is no genuine issue of material fact. Here, the critical issue of material alteration was not addressed.

I would send this case back for appropriate development of that issue and place the burden of proof on the guarantors.

Hays, J., joins.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Herman FREEMAN
    CR 92-1137
    846 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Brett Qualls, Deputy Public Defender, for appellee.
   Tom Glaze, Justice.

At a bench trial, appellee was convicted of possession of drug paraphernalia with intent to use, and he was found to be a habitual offender with more than one but less than four felony convictions. The trial court correctly determined that appellee’s offense was a Class C felony which required a sentence of not less than six nor more than twenty years imprisonment. Ark. Code Ann. §§ 5-64-403(c)(l) (1987) and 5-4-501 (a)(4) (1987). Because appellee was found a habitual offender, the trial court, under Ark. Code Ann. § 5-4-104(a) and (e)(4) (1987), was mandated not to suspend imposition of appellee’s sentence. Nonetheless, the trial court held that, irrespective of § 5-4-104, it had inherent authority to suspend imposition of a sentence, and over the state’s objection, it awarded appellant six years, suspending imposition of five of those six years. The state appeals, asserting the trial court must follow the statutory requirements of § 5-4-104. We agree and therefore reverse.

The state appeals pursuant to Ark. R. Civ. P. 36.10(b-c) which authorizes review when the attorney general, after inspecting the trial record, is satisfied that error has been committed to the prejudice of the state and that the correct and uniform administration of the criminal law requires such review. Obviously, sentencing and the manner in which such punishment provisions can be imposed arise in every criminal case where a conviction is obtained, and the application of these statutory sentencing procedures to convict defendants requires uniformity and consistency. Thus, we accept jurisdiction of this appeal. Before considering the state’s point for reversal, we must address two matters raised by the appellee.

First, we dispose of appellee’s argument that the state failed to cite.§ 5-4-104 to the trial court, so the state cannot rely on it on appeal. This argument has no merit. At trial, the deputy prosecutor objected to the sentence imposed by the trial court, requesting that the minimum sentence of six years be imposed because the court could not “suspend on a habitual.” The trial court responded saying, “I agree with you. I for the record state I think you are right. I probably don’t have the authority ... If I don’t, I ought to ... If I don’t have that power, then there’s something wrong with the system.” The state’s and the trial court’s remarks specifically touched on whether the trial judge had authority to suspend imposition of five of the required six years when the appellee was a habitual. That issue was addressed and ruled on in the affirmative by the trial court below and is exactly the one raised and argued in this appeal.

Second, appellee argues that § 5-4-104(e)(4), the provision disallowing the suspended imposition of sentence in habitual cases, refers to Ark. Code Ann. § 5-4-502 (1987) and is inapplicable in bench trials because the habitual sentencing procedure set out in § 5-4-502 (1987) refers only to a jury. To interpret these statutes as appellee proposes would violate a defendant’s Sixth Amendment right to trial by jury. Under appellee’s construction, he could possibly avoid the habitual sentence enhancement provisions merely by asking for a bench trial, but he would subject himself to such enhancement provisions if he demanded a trial by jury. No such Hobson’s choice was intended by the General Assembly’s passage of these statutory provisions. The General Assembly merely intended for the procedure in § 5-4-502 to apply in jury trials and in doing so, to provide for bifurcated trials to protect the defendant by withholding proof of his earlier convictions until the jury has found him guilty. Such an interpretation of § 5-4-502 in no way prevents the mandatory application of the requirements of § 5-4-104(e)(4) whether the trial be by jury or to the trial court. We now turn to the state’s argument that the trial court erred in suspending imposition of appellee’s sentence.

In Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985), the court, quoting from Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985), said, “It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of punishment which may be imposed.” This court has repeatedly held that sentencing in Arkansas is entirely a matter of statute. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Sherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). This court has also held that the minimum sentences for habitual offenders are mandatory. McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991). Further, this court has held that the power to grant or withhold the authority of trial judges to suspend execution of sentence conditioned on the defendant’s good behavior properly lies with the General Assembly. Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Davis v. State, 169 Ark. 932, 277 S.W.2d 5 (1925); Holden v. State, 156 Ark. 521, 247 S.W.2d 768 (1923).

The case of Lovell v. State, 283 Ark. 425, 434, 681 S.W.2d 395 (1984) (supplemental opinion denying rehearing), is an example where we rejected the idea that a trial court had the authority to reduce or suspend a defendant’s sentence where the General Assembly made such a sentence mandatory. There, we upheld the trial court’s ruling that it did not have the authority to suspend the defendant’s sentences because the sentencing provisions of the Omnibus DWI Act required imprisonment. The court explained its holding in part as follows:

Could a law be more plain that the legislature wanted it unmistakably clear certain things were mandatory? The legislature, not the courts, decides what is a crime and, within limits, what a sentence will be. So long as those sentences are not unconstitutional for some reason, it is our duty to enforce those laws. To do otherwise in this case would be to subvert a clear prerogative of the legislature.

Here, as in Lovell, the trial court had no authority to suspend appellee’s six-year sentence which the General Assembly made mandatory. Because the trial court exceeded its authority by ignoring the dictates of § 5-4-104(a) and by suspending imposition of five of the six years awarded the appellee, we must reverse and remand. In doing so, we direct the trial court’s judgment and commitment order be corrected to impose a sentence of six years pursuant to § 5-4-501 (a)(4) and to delete any reference to the suspension of imposition of that sentence. See Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982).

       In assuming that this court would rule § 5-4-104(e)(4) applies to non-jury trials, appellee also makes some brief reference to an equal protection argument, but appellee did not argue or develop this issue below. Nor does appellee offer convincing argument or cite authority for the argument now advanced on appeal.


author: Donald L. Corbin, Justice.

text:
    John Lloyd JOHNSON v. STATE of Arkansas
    92-833
    846 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      John Lloyd Johnson, pro se.

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

Appellant, John Lloyd Johnson, is an attorney who was appointed by the Yell County Municipal Court to represent an indigent defendant. His appeal to this court involves his costs and fees in the indigent’s case.

The transcript from the municipal court consists only of the order appealed from — the order awarding him attorney’s fees. The circuit court clerk’s files indicate the indigent’s case was heard without a court reporter’s record being made. Thus, we are unable to verify some of the underlying facts in this case. However, appellant claims he made four court appearances on the indigent’s behalf and the Yell County Municipal Court ultimately convicted the indigent of only one of eight charges resulting from an automobile accident — driving too fast for conditions.

The transcript filed in this court indicates appellant submitted a motion and supporting affidavit for attorney’s fees and costs of $1,128.52 associated with the indigent’s defense. The Yell County Municipal Court awarded appellant only $150.00 in fees with no costs or expenses. Appellant appealed the municipal court’s order to Yell Circuit Court which found, without explanation, that it lacked subject matter jurisdiction to hear the appeal.

Appellant now appeals the order of the Yell Circuit Court finding that it lacked jurisdiction to hear the appeal from municipal court. Appellant’s jurisdictional statement asserts this case involves a significant public interest and a legal principle of major importance and should therefore be certified to this court under Ark. Sup. Ct. R. 29(4)(b). The case requires our interpretation of the Arkansas Constitution and the statutes concerning inferior courts. We therefore exercise jurisdiction pursuant to Ark. Sup. Ct. R. 29(l)(c).

Appellant cites Ark. Const, art. 7, §§ 14, 33 as authority for his contention that the circuit courts of this state have appellate jurisdiction over municipal courts and the Yell Circuit Court therefore erred in dismissing his appeal for lack of subject matter jurisdiction. The state agrees that the circuit courts have appellate jurisdiction over the municipal courts.

The foregoing provisions of the Arkansas Constitution cited by appellant state that circuit courts shall exercise superintending control and appellate jurisdiction over county courts, probate courts, courts of common pleas, corporation courts, and justices of the peace. In addition, Ark. Code Ann. § 16-19-1105 (1987) provides for de novo appeals from municipal courts to circuit courts. Although section 16-19-1105 speaks in terms of justices of the peace, this court has held the statute to apply to municipal court misdemeanor convictions. Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989).

Pursuant to Ark. Const, art. 7, §§ 14, 33, we agree with both appellant and appellee that the circuit court has subject matter jurisdiction to hear appellant’s appeal of the fee awarded in municipal court. Accordingly, we hold the trial court erred in dismissing appellant’s appeal for lack of subject matter jurisdiction.

Appellant also argues there was sufficient evidence presented below for us to make a determination that the municipal court’s order was insufficient and amounted to a taking without just compensation. While this court may possibly hear cases originating in municipal court, we would not do so until the circuit court had first heard the case. Therefore, we made no holding with respect to the propriety of the municipal court’s order.

The order dismissing for lack of subject matter jurisdiction is reversed and remanded to the circuit court.

      2 Whether the indigent was indeed convicted of a misdemeanor is yet another fact we are unable to verify because of the state of the transcript from the municipal court.


author: Robert L. Brown, Justice.

text:
    Marlin CASH v. Isaac F. CARTER a/k/a Ike Carter, Individually and as Owner of Carter Construction Company; Carter Construction Company, Inc.; and Arkansas Valley Dredging Company, Inc.
    92-830
    847 S.W.2d 18
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      James F. Swindoll, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Alfred F. Angulo, Jr., and Brian Allen Brown, for appellees.
   Robert L. Brown, Justice.

The Pulaski County Circuit Court granted summary judgment in favor of the appellees on the issue of whether the appellant, Marlin Cash, could sue them in tort. Cash appeals and contends, among other things, that he was employed by Little Rock Quarry Company, Inc. at the time of his injury and was paid benefits under the Longshoreman’s and Harbor Worker’s Compensation Act (“LHWCA”) as a consequence of that employment. He argues that payment of the LHWCA benefits does not preclude tort actions against third-party appellees.

The appellee, Isaac F. Carter, is the owner of Carter Companies, a parent corporation for several subsidiaries, including appellee Carter Construction and non-party Little Rock Quarry. He is also the owner of appellee Arkansas Dredging Company, Inc., which is a separate parent corporation. On July 22, 1987, Cash was doing welding work on a barge owned by Carter Construction at the direction of Carter Construction employees. The barge was dry docked at a yard owned by Arkansas Valley Dredging. While welding, he inhaled toxic fumes and suffered permanent brain damage. He subsequently filed a claim under the LHWCA and is currently receiving benefits for his disability as an employee of Carter Construction.

On August 3, 1988, Cash filed a negligence action against the appellees and contended that the barge was not adequately ventilated, that safe tools and safety equipment were not provided, and that other safety precautions were not followed. The appellees answered and then moved for summary judgment, asserting that Cash was either an actual employee of Carter Construction or a loaned employee to that firm and that Carter, individually, and Arkansas Valley Dredging were in no way involved in the accident.

The circuit court granted summary judgment to the appellees. It agreed with Carter Construction that Cash was either its actual employee or a loaned employee when the accident occurred and that his exclusive remedy against that firm was under the LHWCA. The court further found that Carter, individually, owed no duty to Cash at the time of the accident and that Arkansas Valley Dredging was not involved.

Cash first argues that summary judgment was inappropriate due to unresolved factual issues in this case. He is correct that summary judgment is an extreme remedy which is only proper when it is clear that there are no issues of fact to be litigated. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). It is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Daniels v. Riley’s Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992). The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Ark. 41, 841 S.W.2d 609 (1992).

Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). On appeal, the appellate court determines the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Thruston v. Little River County, Ark., 310 Ark. 188, 832 S.W.2d 851 (1992).

Cash is adamant that a material fact issue exists as to which business employed him when he was injured. In determining employment, we look to various factors with the degree of control being the most universally accepted standard for establishing an employer-employee relationship. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969); see also Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990).

Here, Cash urges that his employer was Little Rock Quarry because that is the entity that issued paychecks to him. He also did some work for that business. According to his deposition, he was at the quarry three or four times, one day at a time, presumably over the course of a year. The quarry, he stated, is located at a separate site from the shipyard where the barge in question was dry docked and where the welding took place.

In that same deposition, however, Cash admitted that he worked sixty to seventy percent of the time at the yard and at times on barges owned by Carter Construction. Moreover, the record in this case evidences, contrary to Cash’s affidavit, that his LHWCA benefits were paid showing Carter Construction as his employer. His W-2 Form also shows employment with Carter Construction. At the time of the injury, he was working on a Carter Construction barge at the direction of Carter Construction personnel. Little Rock Quarry, the appellees aver, was only used for payroll account purposes to issue paychecks for employees of the Carter Companies. The weight of the evidence on which firm controlled Cash at the time of the accident appears to predominate in favor of Carter Construction. Nevertheless, we cannot say that Cash’s sworn statements that Little Rock Quarry employed him and the accompanying paycheck stubs do not present a fact question for the jury to resolve.

The same doubts do not afflict us, though, as to whether Cash was a loaned employee to Carter Construction, and thus a temporary employee of that firm, at the time he was injured. We recently had occasion to examine the doctrine of dual employment. See Daniels v. Riley’s Health & Fitness Ctrs. (“the Club”), supra. In Daniels, the facts and issues bear some similarity to those in the present case. An employee claimed workers’ compensation benefits due to an injury experienced at the Club on the basis that he was an employee of Aaron Temporary Services and not the Club. He then sought to sue the Club in tort. Summary judgment was granted in favor of the Club, and we affirmed. In doing so, we cited the dual employment doctrine and quoted from Larson, The Law of Workmen’s Compensation, § 48.00 (1962):

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.
When all three of the above conditions are satisfied in
relation to both employers, both employers are liable for workmen’s compensation.
Employment may also be “dual” in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer of the other. When this separate identification can clearly be made, the particular employer whose work was being done at the time of injury will be held exclusively liable.

310 Ark. at 759,840 S.W.2d at 178. We concluded that there was no question that the Club had the right to control Daniels at the time of his injury and that Daniels was performing a task within the scope of his employment at that time. Daniels averred that he was not employed by the Club, but we determined that there was nothing in the contract of employment with Aaron Temporary Services that precluded a holding that he was a temporary employee of the Club by virtue of an implied contract at the time of his injury. We, therefore, affirmed the summary judgment.

In the case before us, the circuit court found that Cash was either an employee of Carter Construction or a loaned employee to that same firm. This stands to reason. The most significant question regarding a loaned employee is which company has direction and control of the employee. George’s Inc. v. Otwell, 282 Ark. 152, 666 S.W.2d 406 (1984). If Cash was not an employee of Carter Construction in actuality, he was on loan to that firm on a temporary basis and subject to its control. Again, Cash was working on a Carter Construction barge at the direction of Carter Construction supervisors when the accident occurred. Though he maintains he was an employee of Little Rock Quarry, he knew that he was not working at the quarry site: He admitted that he did work for Carter Construction on occasion on its barges in dry dock. Though he describes his supervision on the barge as not “detailed,” he also admitted that he was assigned to work there. The LHWCA Payment of Compensation form and his W-2 form both show Carter Construction as his employer. And Cash presents no proof that he was not working for Carter Construction when he was injured other than a bald assertion to the contrary. Offsetting this assertion is his response to the appellees’ amended and substituted motion for summary judgment, where he refers to his status as that of loaned employee, though the particulars of this status are not revealed. In sum, Cash has presented nothing of substance to support a finding that he was not a loaned employee to Carter Construction or that he had not acquiesced in temporary employment with that firm at the time of the accident.

It is clear that if Cash was a loaned employee to Carter Construction, his exclusive remedy is LHWCA as to Carter Construction. Touchet v. Travelers Indemnity Co., 221 F.Supp. 376 (W.D.La. 1963); see also Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972) (workers’ compensation is exclusive remedy for loaned employee). We hold that there was no error in granting summary judgment in favor of Carter Construction.

Nor do we conclude that there was any error in the summary judgment in favor of Carter individually and Arkansas Valley Dredging. Cash presented no evidence that Carter was directly involved in the events surrounding the injury or that he was acting in any capacity other than as a corporate officer when the accident occurred. Hence, there is nothing on which to premise individual liability on the part of Carter.

With respect to Arkansas Valley Dredging, Cash contends that it is liable because it owned the dry dock and loaned an extension cord and perhaps some fans for use in the welding job. Arkansas Valley did not own the barge or the welding equipment or employ the supervisory personnel. Assuming that the dry dock, the extension cord, and the fans did belong to Arkansas Valley Dredging, this participation in the events that transpired was incidental. Moreover, the alleged negligence by Cash was failure to provide safe tools, and there is no contention by Cash that these accessories were not safe. Having had no role in the employment of Cash or in the task he was called upon to perform, Arkansas Valley Dredging owed him no duty.

Affirmed.

Glaze, J., not participating.


text:
    Kenneth Ryan HOLLAMON v. STATE of Arkansas
    CR 92-790
    846 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      Daniel D. Becker and Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal from convictions for rape and attempted murder, which resulted in sentences of life imprisonment for rape and twenty-five years for attempted murder. The appellant, Kenneth Ryan Hollamon, appeals on the basis that he was denied equal protection of the laws due to a racially-motivated peremptory challenge by the prosecutor. He further urges that he is deaf and that the circuit court erred in failing to suppress his incriminating statement which was given without the assistance of an interpreter. We affirm the convictions and sentences.

The victim had been living in an apartment complex in Hot Springs for about two weeks when she reported to police that she had been raped at about 12:45 a.m. on May 10,1991. On several prior occasions before the attack, she had talked to the appellant in the apartment building. She later testified at trial that the appellant had beaten her, raped her vaginally and anally, and forced her to perform oral sex on him. In addition, he strangled her three times, causing her to pass out on each occasion. After she awoke the third time, she found herself in a closet with a plastic covering over her head. She ran next door to a friend’s house and called the police.

The appellant was found by the police on the grounds of the complex, and he was taken into custody. He was first interviewed by Detective Vicki Flint of the Hot Springs Police Department during the early morning hours after the attack. Detective Flint advised him of his Miranda rights, first reading them to him from the standard form and then allowing him to read them. He indicated that he understood his rights, and he initialed and signed the waiver and consent form. Hollamon gave two statements, and in the second statement he confessed to the rape.

The appellant filed a pre-trial motion to suppress the incriminating statement, asserting that Detective Flint had violated Ark. Code Ann. § 16-89-105(c) (Supp. 1991) by not providing an interpreter prior to taking the statement. A Denno hearing was then conducted, and an interpreter was present. At the hearing, Detective Flint testified that she was unaware of any hearing problem at the time she took the appellant’s statement, although she saw that he was wearing a hearing aid. Detective Gary Ashcraft also observed the hearing aid. The circuit court made preliminary findings that the appellant had demonstrated that he could hear and communicate and that his statement was “intelligently, knowingly, and voluntarily made.” Three hearings on deafness then ensued: on August 19, October 7, and October 28, 1991. Expert witnesses, including an audiologist, a speech pathologist, and two rehabilitation counselors, testified. The court denied the motion to suppress by letter opinion and found that the appellant was not deaf within the meaning of § 16-89-105(c) but was able to communicate in a normal conversational tone. The case was tried before an all-white jury in a three-day trial, and the two convictions resulted.

I. BATSON OBJECTION

Hollamon contends, as his first point for reversal, that he was denied equal protection under the state and federal constitutions because he is black, the victim is white, and the state, during jury selection, exercised a peremptory strike that excluded the sole black juror from the jury panel. As an adjunct to this argument, he urges that the circuit court failed to make the necessary sensitive inquiry under Batson v. Kentucky, 476 U.S. 79 (1986).

Prior to voir dire, a black woman named Stephanie Russell requested to be excused because she needed to be at work at the Majestic Hotel in Hot Springs for the next two days. She also stated that she had been subpoenaed to Garland County Circuit Court in Hot Springs the day before to testify on behalf of her boyfriend, who was also a client of the appellant’s defense counsel. Her boyfriend, however, had failed to appear for trial.

Ms. Russell was seated for voir dire as the only black on the panel. Two other black panel members had been excused for employment reasons. At a bench proceeding after the jury was excused, the prosecutor moved to strike Ms. Russell for cause on the grounds that she had a close association with a fugitive defendant who was to be tried the preceding day, a circumstance that might dispose her to be “prejudiced against law enforcement in general,” and also because she appeared “to be under the influence of some kind of drugs or alcohol today.” The court held that this was not sufficient for a challenge for cause.

The prosecutor then exercised peremptory challenges and excused Ms. Russell and one other juror. The appellant’s counsel requested that in light of the fact that both the accused and the dismissed juror were black the state be required to give its reason for striking her under Batson. The prosecution responded:

Your Honor, we’re striking Stephanie Russell for the reasons we just reiterated for the Court, in that we have information now that she is the girlfriend of Anthony Barron, who is ... a fugitive from justice from this Court. He was bench warranted yesterday.
He was represented by Mr. Becker [the appellant’s attorney]. At the time she was asked if she had any association with any lawyers in this case, it is my recollection that she did not come forward. She appears to be acting slow in her movements and responses today. Her speech was slower than normal when she came up to the Bench. She does not appear to be mentally at herself today. And for all those reasons — unless co-counsel has others — we have exercised our peremptory challenge against her.

The circuit court then asked the state’s co-counsel if there were any other reason. When she replied in the negative, the court turned to the defense and asked for a response. Defense counsel argued that the explanation was not sufficient reason to strike the only black on the jury. Additional statements were made by counsel for both sides. The court expressed its concern about the relationship between the appellant’s attorney and Ms. Russell and found it to be “sufficient basis for striking Ms. Russell.”

In Batson v. Kentucky, supra, the United States Supreme Court held that a defendant who makes a prima facie showing of purposeful racial discrimination in juror challenges shifts the burden to the state to prove that the exclusion of jurors is not based on race. The Court, however, refrained from formulating procedures to implement Batson, and the states have been forced to chart their own way in devising procedures for the time, place, and manner of the Batson process.

We have held that when the neutral explanation given by the state is sufficient, no sensitive inquiry is required. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). In Colbert, we declared:

We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a “sensitive inquiry” by the trial court in every instance, notwithstanding the validity of the state’s explanation for its peremptory challenges.
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its rulings as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.

304 Ark. at 254-255, 801 S.W.2d at 646.

Accordingly, the defendant must first establish a prima facie case of purposeful discrimination, which the appellant clearly did in this case when he pointed to a peremptory strike by the state dismissing the sole black person on the jury. After the circuit court inferred purposeful discrimination, the burden shifted to the prosecutor to give a racially neutral explanation for the peremptory challenge. In the bench proceeding, the circuit court questioned both the prosecutor and defense counsel on the challenge, and counsel for both sides addressed the issue. The circuit court stated that it was concerned about the relationship between the appellant’s attorney and Ms. Russell and found that the racially neutral explanation offered by the state was sufficient basis for its peremptory strike.

Prior to that decision, however, the court had refused to dismiss Ms. Russell for cause. The prosecutor’s explanation of a peremptory challenge, though, need not rise to the level that would justify the exercise of a challenge by the trial court for cause. Batson v. Kentucky, supra., Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). Thus, the fact that the circuit court held the reasons insufficient for a challenge for cause does not mean that the same reasons could not show racial neutrality to support the exercise of a peremptory challenge.

We agree with the circuit court that the relationship of this juror to defense counsel is a valid concern that is not rooted in racial bias. Ms. Russell was friendly with a defendant who was to have been tried the previous day and defended by the appellant’s counsel. She had been subpoenaed to testify as part of the defense. One could reasonably conclude that her sympathies lay with the defense. Hence, we cannot say, under these circumstances, that the circuit court’s acceptance of the prosecutor’s justification was clearly contrary to the preponderance of the evidence. Accordingly, a further inquiry on the matter was not warranted. On this point, we note that the appellant did not specifically ask the court to conduct a further inquiry. Moreover, we are not certain that what transpired in the bench proceeding was not a sensitive inquiry. Both counsel were questioned by the court, statements were made, and the court made its finding. In this regard, the appellant offers no clue as to what additional facts might have come to the circuit court’s attention by virtue of a further inquiry.

Finally, we observe that during voir dire the appellant questioned the statistical representation of blacks in the jury pool. At one point, it was noted by appellant’s counsel that there were four blacks in a pool of sixty persons. A challenge to the pool on grounds that it did not represent a cross-section of the community was mounted and the circuit court denied the objection. Although we have, in accordance with Supreme Court Rule 11(f), reviewed the issue, we note that it was neither raised on appeal nor sufficiently developed at trial for our consideration.

II. SUPPRESSION OF STATEMENT BECAUSE OF DEAFNESS

The appellant argues, as his second point for reversal, that the circuit court erred in denying his motion to suppress his statement because no interpreter was made available. According to the appellant, the police officers violated the dictates of Ark. Code Ann. § 16-89-105(c) (Supp. 1991):

(c) In the event a person who is deaf is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and his superiors shall procure a qualified interpreter in order to properly interrogate the deaf person and to interpret the person’s statement. No statement taken from the deaf person before an interpreter is present may be admissible in court.

The question we must resolve is whether the appellant was deaf at the time he gave his statement to Detective Flint. The term “deaf’ is not defined in the statute. In Black’s Law Dictionary, 6th ed. (1990), however, this definition following “Deaf person” appears, and the appellant urges us to adopt it:

Any person whose hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.

The testimony offered at three deafness hearings was varied. An audiologist testified that the appellant had severe hearing loss in his right ear and impaired hearing in his left ear, which was remedied to some extent by a hearing aid. A speech pathologist testified that the appellant’s language skills were akin to those of a six year old. Detective Flint testified that he was wearing a hearing aid at the time he gave his statements and that the appellant understood the questions asked during his interrogation. The victim also testified to her conversations with the appellant before the day of the rape and gave no indication that he could not hear.

There is also the fact that the appellant alludes to no example of how his asserted deafness encumbered him in any way during the interrogation process. Thus, we are confronted with a situation in which the appellant did not request an interpreter and gave no indication that one was necessary. Had the appellant requested such assistance or given any indication that he suffered from hearing loss and did not understand the proceedings, our assessment of his status might be entirely different. However, no such indication of deafness was made to the investigating officers.

Moreover, the circuit court held three hearings on the appellant’s auditory ability, as well as other pretrial hearings, and concluded that he was not deaf under the statute. We note in particular that the court had occasion to observe the appellant at these hearings and assess his abilities first-hand, which, no doubt, weighed heavily in its decision. The court then followed the definition in Black’s Law Dictionary for deafness and found that the appellant could communicate with other persons in a normal conversational tone.

Under these circumstances, we cannot say that the circuit court clearly erred in its finding. Where witness credibility is involved, wide discretion is given to the trial court which has the opportunity to observe those witnesses, and conflicts in that testimony are for that court to resolve. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Similar discretion should be afforded the trial court in assessing a witness’s ability to hear.

There is one final point. The incriminating statement was not introduced into evidence during the state’s case. The circuit court did rule that it was admissible for purposes of impeachment, and the appellant moved for a mistrial. The appellant, however, never took the stand. It is reasonable to assume that the threat of impeachment kept Hollamon off the witness stand, which raises the specter of prejudice. Yet, it is the burden of the defendant to show specifically how he was prejudiced by presenting a proffer of what testimony was precluded or by some other demonstration of prejudice. This was not done, and we are left to speculate on what testimony Hollamon might have given had it not been for the threat of impeachment.

Furthermore, Hollamon’s counsel made a secondary argument for mistrial that Hollamon’s communication skills were so deficient that he could not have taken the stand in any event regardless of the impeachment potential. The circuit court rejected the argument, noting that it had observed the appellant’s reaction to testimony at times during the course of the trial, the implication being that the appellant could hear the proceedings in the courtroom. Again, we defer to the circuit court’s superior ability to assess the appellant’s ability to hear.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Don PHILLIPS v. CITY OF EUREKA SPRINGS, Arkansas, et al.
    92-557
    847 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      Russell C. Atchley, for appellant.

      Jay C. Miner, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue is the proper procedure under the Arkansas Code for publication of municipal ordinances.

This dispute arose from the following scenario: the appellant, Don Phillips, owned two adjacent houses in Eureka Springs, Arkansas. One house was used as a bed and breakfast; the other as a tourist accommodation establishment. They were located in R-l Victorian Residential and R-2 Contemporary Residential zones.

Mr. Phillips and other property owners petitioned the City Planning and Zoning Commission to rezone these areas from R-1 and R-2 to C-3 Quiet Commercial Use Zone by the enactment of Ordinance No. 1380. Although the Commission did not recommend rezoning, the City Council voted 4 to 2 in favor of Ordinance No. 1380.

Rezoning Ordinance No. 1380 was again addressed by the City Council approximately one month later. At that meeting Carolyn Green, an affected property owner, spoke on behalf of the opponents of the rezoning ordinance. The ordinance was again put to a vote, and the council voted 4 to 2 in favor. A motion was made to suspend the rules so that the ordinance could be read a third time; another vote resulted in a 3 to 3 tie, with the Mayor casting his deciding vote in favor of the ordinance.

Following the meeting, the Mayor, City Attorney and Aldermen discussed the possibility that a three fourths vote might be needed to pass the ordinance because the petition in opposition to rezoning was supported by owners of twenty percent of the affected property. As a result of that discussion, Ordinance No. 1389 was drafted, repealing Ordinance No. 1380, and the City Clerk and the newspaper were told to withhold publishing Ordinance No. 1380.

The appellant, Don Phillips, noting that the newspaper had not published Ordinance No. 1380, decided to cause the notice of the ordinance to be published. The paper at first refused to publish the ordinance because of the city’s earlier directions, but ultimately published the ordinance anyway. Mr. Phillips paid the cost of publication.

Mr. Phillips next tried to get a business license for an art studio on his property. The Mayor’s office refused because the property was still zoned residential.

Six months later, Mr. Phillips sold the property and then filed suit in Carroll County Chancery Court against the City of Eureka Springs, the Mayor and the City Aldermen. He asked for a declaratory judgment declaring Ordinance No. 1380 valid and Ordinance No. 1389 to be declared an invalid attempt to rezone property without following proper procedures.

After taking testimony and exhibits on this matter, the chancery court declared that Ordinance No. 1380 was invalid. The chancery court’s order stated:

2. That Plaintiffs’ cause of action is predicated on whether Ordinance No. 1380 was validly published in the Eureka Springs Times Echo on March 8, 1990.
3. That after passage of Ordinance No. 1380 by a four to three vote, the officials of the City of Eureka Springs had reason to believe its passage required a three/fourths vote rather than a simple majority vote.
4. That Ordinance No. 1380 had been submitted to the Eureka Springs Times Echo for publication according to law and would become effective 30 days after publication; and that the City Clerk of Eureka Springs, the individual responsible to see that ordinances passed by the City Council are published, contacted the newspaper to keep the same from being published until the matter of its passage could be addressed by the City Council and from her testimony, she thought she had been successful and was successful for a few weeks.
5. That Plaintiff Don Phillips was aware of the City’s concern regarding the passage of Ordinance No. 1380 and of its efforts to delay publication until the matter could be resolved.
6. That although Plaintiffs could have taken actions which would have caused the City to publish the ordinance, Plaintiff Phillips, on his own initiative and without the consent of the City, caused the ordinance to be published in the newspaper.
7. That because of Plaintiff Phillips’ unilateral actions in causing Ordinance No. 1380 to be published, the Plaintiffs’ claims is [sic] ineffective just as if the same had never been published.
8. That inasmuch as Ordinance No. 1380 was not validly published, it was never in effect.
WHEREFORE, IT IS BY THE COURT ORDERED AND DECREED, that Plaintiffs’ cause of action is hereby dismissed.

It is from these findings that Mr. Phillips appeals.

Relying on Ark. Code Ann. § 14-55-206(a)(l)(A) (1987), Mr. Phillips contends that anyone may cause an ordinance to be published. This statute states:

All bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper of general circulation in the corporation.

Mr. Phillips asserts that because this statute does not specify who may publish the ordinance, then anyone can effectively do so. This is not true.

Statutes must be construed together and given their plain meaning. Accordingly, this statute read in conjunction with Ark. Code Ann. § 14-55-101 (1987), clearly gives only the municipality the power to publish ordinances:

14-55-101 Authority to enact.
Municipal corporations shall have the power to make and publish from time to time bylaws or ordinances, not inconsistent with the laws of the state for carrying into effect or discharging the powers or duties conferred by the provisions of this subtitle.

(Emphasis added.)

Therefore, Mr. Phillips’ efforts to publish Ordinance No. 1380 were ineffective, and the ordinance was never properly published. Since we hold that Ordinance No. 1380 was invalid for lack of publication, we need not address Mr. Phillips’ arguments concerning Ordinance No. 1389, the ordinance that ostensibly repealed No. 1380.

Affirmed.


author: Robert H. Dudley, Justice. Steele Hays, Justice, dissenting.

text:
    Harold J. BURNS, Jr. v. Janet L. BURNS
    92-863
    847 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      Hixson, Cleveland & Rush, by: David L. Rush, for appellant.

      Shock, Whitmire & Harp, by: Jeanne Anne Whitmire, for appellee.
   Robert H. Dudley, Justice.

The primary issue in this divorce case is whether we continue to hold, as we did in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), that the language of our marital property statute does not include nonvested military retirement benefits. We again construe the statute in the same way. The chancellor did not follow the Durham case, and, on that point, we modify. We affirm on all other points of appeal.

The appellant husband, Major Harold J. Burns, received a commission in the United States Army in May 1977. He and appellee, Janet Burns, married in June 1980, separated in May 1991, and divorced in January 1992. The chancellor found that on the date of the divorce the appellant had been in the Army almost fifteen years, but that his military pension will not vest until he has served twenty years. The chancellor awarded the wife an interest in the nonvested retirement benefits that the husband may receive. The husband filed a post-trial motion citing Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), and asking the chancellor to reconsider the issue of the nonvested retirement benefits. The wife responded with a brief that began: “If Defendant’s interpretation of Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), is correct, it is bad law,” and continues, “Plaintiff welcomes a review of this Court’s ruling by an appellate court.” Apparently the chancellor was persuaded that a review of our decision should be had since he ruled that the husband “will” have retirement benefits and the “wife ... is entitled to her interest therein as a wife of the defendant and a dependent of a military service person, but this interest shall be only for that period of time that the parties were married during the defendant’s military service.” The husband appealed. The court of appeals certified the case to this court. Understandably, the husband’s first assignment of error is that the trial court erred in awarding the wife a part of the nonvested military retirement. The assignment of error is well taken.

In 1979, the General Assembly enacted the current marital property statute. “Marital property” means “all property acquired subsequent to marriage,” with certain enumerated exceptions not applicable to this case. Ark. Code Ann. § 9-12-315 (b) (Supp. 1991). Prior to our decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we had not recognized pension benefits as marital property. However, in Day, we held that vested pension benefits acquired during a marriage are marital property and subject to division. In that case the husband’s interest was vested as it could not be diminished by his employer, and it was not dependent upon continued employment with that employer. The husband contributed 10% of his salary into a retirement program, and that contribution was matched by his employer. At the time of the divorce, the husband and the employer together had contributed $62,498.10 into the program, and the accumulated value of his interest was $95,425.03. The contributions were divided in two funds. One was invested in bonds and mortgages to provide guaranteed fixed annuities for participants in the plan, and the other was invested in stocks to provide a variable annuity. The amount of the annuities were based upon the accumulated value of the employees’ interest in each of the funds. At the time of the divorce the husband could stop making contributions and begin receiving his annuities. We construed this pension annuity benefit to be property under the statute. We reasoned that it was comparable to the husband taking part of his salary and depositing it in a savings account each month, or paying part of his salary on an annuity each month. It was property. We said that neither spouse could deprive the other of an interest in property simply by placing it temporarily beyond his or her control, such as by the purchase of an annuity.

Two years later, in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), we held that a nonvested right in military retirement did not constitute property as contemplated by the marital property act. We wrote:

The proof is that Durham will not be entitled to a pension until he has served for at least 20 years. Until then, unlike the professor in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), Major Durham has no vested right that must be recognized as marital property. He is employed by the United States; so Congress could at any time change his retirement plan or abolish it. Durham’s expectancy is more like the expectancy of termination pay that we considered in Lawyer v. Lawyer, 288 Ark. 128, 702 S.W.2d 790 (1986). The appellant relies upon the Uniformed Services Former Spouses’ Protection Act, 10 USCA § 1408 (1983), but that federal statute merely provides that the military authorities may treat a serviceman’s retirement pay as the property of him and his spouse in accordance with state law. No independent property right is created in the spouse by the federal act. In this instance no such right exists under Arkansas law.

Id. at 5, 708 S.W.2d at 619 (emphasis supplied.)

Nonvested military retirement benefits lack the following characteristics of property: cash surrender value, loan value, redemption value, lump sum value, and a value realizable after death. Baker v. Baker, 421 A.2d 998 (N.H. 1980).

The general rule in states with statutes similar to ours is set out in American Law Reports as follows:

Retirement or pension benefits that have not vested at all have been held explicitly or implicitly by the courts, in noncommunity property states having statutes providing for equitable division of the spouses’ property upon divorce, not to be property subject to division or direct consideration in making such equitable property divisions.

Charles C. Marvel, Annotation, Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R. 3d 176, § 13 (c) (1979).

In sum, our marital property statute requires that all property acquired subsequent to the marriage be divided, with certain exceptions not applicable. We have construed the statute to mean that nonvested military retirement benefits to which the serviceman or servicewoman may become entitled in the future are not property. This interpretation of the statute has now become a part of the statute itself, and we should not now reinterpret it. In E.C. Barton & Co. v. Neal, 263 Ark. 40, 43, 562 S.W.2d 294, 295 (1978), we explained: “That construction of the statute became as much a part of the statute as the words of the statute itself, and change is a matter that addresses itself to the General Assembly, not this court.” See also Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978).

Accordingly, we decline to reverse our construction of the marital property statute and leave change, if any, in the word “property” to the General Assembly. Accordingly, we modify the trial court’s final order to provide that the wife is not entitled to an interest in whatever military pension the husband may be entitled to receive in the future.

The husband makes several other arguments, but none have merit. In the first of these he argues that the chancellor erred in giving the wife custody of the children. The wife’s expert witness, a clinical psychologist, testified that she had a stable personality, and another expert testified that the father had a stable personality. We have held that, even in a de novo review, we will not set aside a chancellor’s decision unless it is “clearly wrong.” Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983). We cannot say the decision in this case is clearly wrong.

The husband’s main contention is that the chancellor’s decision is erroneous because the wife admitted having intercourse with another man on two occasions. Fault in the divorce is not necessarily the determining factor in awarding custody since an award of custody is neither a reward nor a punishment for a parent. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). The children’s welfare is the controlling consideration. Id. Here, the wife candidly admitted the affair and stated that it was a regrettable mistake. She also stated that it was not conducted in front of the children, and that she has not been involved with anyone else. Under these facts we cannot say the chancellor erred. Accord, Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989).

The husband contends the chancellor erred in ordering child support and alimony, as well as ordering him to make house payments. In the original decree the husband was ordered to pay $1,090.00 per month child support. He was also ordered to make house payments of $769.00 per month until the wife moved from the home, at which time the $769.00 monthly payment was to be converted to alimony for a period of twelve months. After the post-trial motion, the chancellor amended the order to make it clear that the husband was to make either the house payment or the alimony payment, but not both at the same time. The husband attached a copy of his earnings statement to his post-trial motion, and after examining it, the chancellor decreased the amount of alimony to $710.00, when it becomes payable, but increased the amount of child support to $1,150.00

The husband contends that the amount of child support is not in conformity with the child support chart. See In re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990). He argues that the amounts of pay that are designated on the earnings statement as BAS OFF and BAQPD do not constitute income since the guidelines provide that “income” for purposes of calculating child support shall be the same as income for federal income tax purposes. He contends that BAS OFF, or basic allowance for subsistence for officers, and BAQPD, or bachelor’s allowance for quarters with dependents, are not income under the Internal Revenue Code. The argument may have merit, but it is not one that we reach because the chancellor was not apprised of the issue, and we do not consider issues raised for the first time on appeal. Menard v. City of Carlisle, 309 Ark. 522, 834 S.W.2d 632 (1992).

The husband contends that he should not pay alimony because the wife’s adulterous relationship caused the divorce. Fault is not a factor in deciding whether to award alimony unless it relates to need or the ability to pay. Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990). The fault of the wife in this case is not relevant to the decision to award alimony to her. The ability of a party to pay and the need of the other party are primary factors to be considered in awarding alimony. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). Here, the ability of the husband to pay a limited amount of alimony was demonstrated, and the chancellor ordered a reasonable amount. In addition, the chancellor relieved him of paying alimony while he was making the house payments. The need of the wife was shown. She has not worked during the time of the marriage and has no job skills. She does not have a college degree, but hopes to obtain one in order to be better able to support herself and the children. The twelve-month award of alimony will help her finish college. An award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Under the circumstances of this case, we cannot say the chancellor erred in awarding alimony for twelve months commencing when the wife moves out of the house. Since this is a de novo review, and since we have reduced the amount awarded as marital property, we have considered increasing the amount of alimony, but we do not do so because the amount awarded by the trial court, when coupled with the child support, relates well to the husband’s ability to pay.

The husband’s next argument involves some bank withdrawals and credit card advances amounting to about $3,000.00. The wife testified that she used credit card advances and funds she withdrew from a joint bank account to pay part of her and the children’s living expenses, car expenses, and her attorney’s fee during the pendency of this action. The husband argues that the chancellor erred in refusing to allow him a set-off for half of this amount. No citation of authority is given. Parties to a divorce case must often use marital funds to meet necessary expenses incurred during the pendency of the action, and a chancellor has discretion to determine when it is necessary to use these funds, whether the amount used was reasonable, whether fraud or overreaching occurred, and whether an offset is appropriate. The chancellor obviously thought the amount used in this case was reasonable and necessary under the circumstances and should not be offset. We cannot say the chancellor abused his discretion.

Finally, the husband argues that the chancellor abused his discretion in ordering him to pay part of the wife’s attorney’s fee in the final order of divorce. The argument is without merit. An award of an attorney’s fee is within the discretion of the trial court in a divorce case and will not be reversed absent an abuse of discretion See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The chancellor did not abuse his discretion in this case.

Affirmed as modified.

Hays and Brown, JJ., dissent.

Steele Hays, Justice, dissenting.

In Durham, v. Durham, 289 Ark. 3, 708 S.W.2d 620 (1986), we affirmed the chancellor’s refusal to award Mrs. Durham an interest in whatever military pension Major Durham may be entitled to receive upon retirement. We distinguished Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), on the basis that Major Durham had no vested right that might be recognized as marital property because Congress could change his retirement plan at any time or abolish it outright.

I find it difficult to reconcile our case or to square the Day and Durham decisions. I recognize that there is a theoretical difference between Dr. Day’s retirement plan and Major Durham’s but not in practical terms. Congress could, of course, terminate military retirement by a single act, but the likelihood of that happening is remote in the extreme and I am persuaded that for the purposes of marital property the two situations are without a practical difference. Besides, the chancellor’s award to Mrs. Burns is conditioned on Major Burns actually receiving retirement benefits and is limited to a pro rata share determined by the length of the marriage.

We have said that chancellors are given broad powers under Ark. Code Ann. §9-12-315 (Supp. 1991) to distribute property in divorce, Williford v. Williford, 280 Ark. 77, 655 S.W.2d 398 (1983), and implicit in Day is the principle that the legislative purpose behind § 9-12-315 should not be frustrated by drawing controlling differences on technical grounds. I believe we should overrule Durham v. Durham, supra, bring our cases into alignment and apply Day uniformly. I would affirm the decree.

Brown, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    JOHN H. PARKER CONSTRUCTION CO. v. Lonnie L. ALDRIDGE, Shirley A. Aldridge, H.E. Treadway and Glenda Treadway
    92-608
    847 S.W.2d 687
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      McMillian, Turner & McCorkle, by: F. Thomas Curry, for appellant.

      Chris E. Williams, for appellee.
   Steele Hays, Justice.

Appellees brought this action against John H. Parker Construction Company (appellant) for damage done to trees resulting from the laying of a water line on residential property belonging to the appellees. The jury returned a verdict in favor of the appellees and Parker has appealed. We find no merit in the three points of error assigned to the rulings of the trial court.

The Northern Malvern Water Users Association undertook to install a municipal water system in the area of Rockport in Hot Spring County. The association employed Affiliated Engineers to oversee the project and contracted with Parker to dig the trenches and install the water pipes. The association obtained easements from a number of land owners, including Lonnie and Shirley Aldridge and H.E. and Glenda Treadway, the appellees.

When the construction was completed trees on the property of the appellees died and had to be removed. Appellees brought this action alleging negligence in the selection of the route of the water line and in excavating within six feet of the trunk of the trees.

Parker first contends the trial court erred in permitting Ronnie Ledbetter to testify as an expert with respect to the standard of care applicable to digging trenches for water lines. Ledbetter testified he operated his own excavation contracting business engaging in digging trenches and burying water lines. Ledbetter described a number of projects involving water, utility, or telephone lines in which he had been involved, including installing several miles of water line for the Perla Water Department, water lines for the Highway 9 Water Department, and water and sewer lines for a trailer park. Currently he did all the repair work for the Perla Water Department. Ledbetter said he had been involved in laying water lines and utilities for twenty-two years. As he was not a licensed contractor, he was limited to contracts of less than $25,000. He was familiar with the type of work done by Parker in this case and had been engaged in the same kind of work except that it was below the $25,000 limit applicable to unlicensed contractors.

Parker maintains that Ledbetter should not have been qualified as an expert because he was not a licensed contractor. Parker likens it to having a nurse give opinion testimony on the actions of a doctor. Parker cites a Texas case, Prellwitz v. Cromwell, Truemper, Levy, Parker and Woodsmall, 802 S.W.2d 316 (Tex. Ct. App. 1990), where it was held that to establish the standard of care for a licensed professional, a licensed professional in that field must testify. That was a malpractice suit against an architectural and engineering firm turning on whether proper stress tests had been used to determine whether pipe could withstand pressure at certain levels. Parker lists other states as embracing the same rule, but those cases involve physicians, attorneys or chiropractors. Parker does not challenge the qualifications or expertise of Ledbetter within the scope of his testimony, rather, he urges that we should adopt the same standard for expert witnesses as in Prellwitz, supra.

We are not persuaded by the argument, as we believe it would be a departure from the rule announced in our previous cases. In Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977) we were asked to overturn the ruling of the trial court permitting a physician from Mexico to give expert medical testimony, although unlicensed in the United States. We held that expert testimony may be given by individuals qualified by experience, knowledge or training. We adhere to that standard. See Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

Second, Parker argues that the trial court erred in refusing to instruct the jury that when landowners grant an easement they waive damages arising from the normal construction of the right-of-way and the landowners may recover only if they prove the work was done unnecessarily, negligently or unskillfully. The instruction was drawn from the decision in St. Louis, Iron Mountain & Southern Railway Co. v. Walbrink, 47 Ark. 330, 1 S.W. 545 (1886).

We are not persuaded the trial court erred in refusing the instruction. It may be an accurate statement of the law in general terms, but the language tended to bind the jury to a particular result and was abstract in the sense that in Walbrink there was neither an allegation nor proof that the work performed pursuant to the easement was negligently performed. Missouri Pacific Railroad Co. v. Ward, 252 Ark. 74, 477 S.W.2d 835 (1972); Missouri Pacific Railroad Co. v. Boley, 251 Ark. 964, 477 S.W.2d 468 (1972). The trial court gave the AMI instructions on negligence and we are satisfied they covered the issues pertinent to the case.

Third, Parker insists the trial court should have granted its motion for a directed verdict at the end of the plaintiffs’ proof and again at the close of the case. Parker relies on the Walbrink case, supra, and Daniels v. Board of Directors of St. Francis Levee District, 84 Ark. 333, 105 S.W. 578 (1907). Both involved easements and damage to the landowners from changes effected by the easements. In Walbrink the railroad company removed fences and altered the flow of a creek resulting in damage to adjoining property. In Daniels the damage was attributable to a levee, constructed pursuant to the easement. In the former we reversed a judgment for the plaintiffs and in the latter, we affirmed the trial court’s directed verdict for the levee district. But in neither case was there evidence that the work was negligently performed, a distinguishing factor from the case at hand.

Here it was shown that some of the right of way permits, including those of the appellees, were “blanket easements” in that they did not specify the location of the water line, but described the entire tract of the landowners. When the line was installed, the district acquired a ten foot easement to maintain the line as determined by the installation. Wade Butler of Affiliated Engineers testified “it would be fair to say that the water line zigzags throughout this particular project. It did that because we tried to miss trees.” Ronnie Marshall, project engineer, testified, “We were strictly supervising. We have no control over where the contractor is going to dig a trench. If Mr. Parker decides to dig a trench within ten feet of a tree, that’s Mr. Parker’s problem under the contract. Our position was to give the contractor an area of work and to supply him with plans and specifications. But we didn’t control the course and the direction of the project. . . We look to the contractor for any remedies or deficits in the job.” In the opinion of Ronnie Ledbetter the water lines could have been laid in an alternate route, that it was the duty of the contractor to inform the engineer if the designated route encounters structures, including trees, and that Parker had a duty to the appellees. He stated, “There is no doubt in my mind that Mr. Parker’s actions of going across the property and cutting close to the trees caused damage to the trees. It is my position that John Parker Construction Company killed the trees.”

When that and similar testimony is given its highest probative value in favor of the non-moving party (appellee), as we are obliged to do in reviewing the denial of a motion for a directed verdict, we are fully satisfied the motion was properly denied. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991).

Affirmed.


text:
    Bruce McVAY v. STATE of Arkansas
    CR 92-1030
    847 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      W. Hunter Williams, Jr., for appellant.

      Winston Bryant, Att’y Gen., by; J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Bruce McVay appeals from a judgment entered on his conviction of the felonious negligent homicide of William Mann. Déath resulted from a collision between vehicles driven by Mann and McVay. On appeal McVay challenges three evidentiary rulings by the trial court and the denial of his motion to set aside the conviction and enter an order of dismissal based on the doctrine of collateral estoppel. Finding no error, we affirm the judgment appealed from.

McVay was charged with two offenses; felonious negligent homicide in violation of Ark. Code Ann. § 5-10-105 (1987) and driving while intoxicated in violation of Ark. Code Ann. § 5-65-103 (1987). A trial was held and the jury was instructed on both charges. Concerning the offense of felonious negligent homicide, the jury was instructed that the state must prove beyond a reasonable doubt that McVay negligently caused the death of William Mann “as a result of operating a vehicle while intoxicated, or if at the time there was one-tenth of one percent (0.10%), or more, by weight of alcohol in Bruce McVay’s blood as determined by a chemical test of Bruce MeVay’s blood. . . .” That identical element was included in the instruction pertaining to driving while intoxicated.

The jury returned a verdict finding McVay guilty of negligent homicide, but not guilty of DWI. A fine of $ 1,000 and a three year suspended sentence was imposed. McVay moved to set aside the conviction on the basis of inconsistent verdicts which he alleged were in violation of the double jeopardy clause. The motion was denied and McVay has appealed.

McVay first argues that the trial court erred in failing to grant his motion to set aside the judgment of conviction. He maintains that under § 5-65-103 DWI is an element of negligent homicide as defined in § 5-10-105, and because the jury acquitted him of DWI, the doctrine of collateral estoppel precludes his conviction for negligent homicide. McVay argues that if he were first tried for DWI and acquitted, and then tried for negligent homicide, the state would be barred from bringing that charge under the doctrine of collateral estoppel. McVay argues the same principle should apply when he is subject to both charges in one trial.

McVay is correct to this extent: if the state proceeded against him first on DWI and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide. See United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); Ashe v. Swenson, 397 U.S. 436 (1970). We disagree, however, with the corollary — that the same result applies when the two offenses are tried simultaneously.

This question was presented in Dunn v. United States, 284 U.S. 390 (1932), the last opinion of Justice Holmes. Dunn held that the principle of collateral estoppel would not apply when, in the same trial, a defendant was acquitted on one count but found guilty on another. The rationale in that case has been questioned in part, but there were two theories for the Court’s holding and subsequent decisions have upheld it on the alternative basis. For example, in United States v. Greene, supra, the court gave the following explanation for agreeing with Dunn:

The [faulty] argument in Dunn was in no way essential to [Holmes’s] conclusion. Rather, the holding of Dunn can be supported independently from Holmes’s dicta. The true rationale for the rule permitting inconsistent verdicts in a single trial is that a jury may convict on some counts but not on others not because they are unconvinced, of guilt, but because of compassion or compromise. Indeed if the rule were otherwise, the government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others -— almost the opposite of the standard instruction, which is obviously beneficial to criminal defendants. (Citations omitted.) [Emphasis added.]

In United States v. Powell, 469 U.S. 57 (1984), the issue was again addressed. Powell recognized the dubious rationale in Dunn, but reaffirmed its holding on the reasoning expressed in United States v. Greene, supra. Betty Lou Powell had been convicted of soliciting a conspiracy by telephone to possess and to distribute cocaine. She was acquitted of the lesser included offense of conspiracy to possess and to distribute cocaine. She claimed the verdicts were inconsistent and she should be granted a retrial as to the telephone solicitation counts because she had been acquitted of one of the elements of that offense. The Supreme Court disagreed and held that inconsistent verdicts in the same trial where there is conviction on the compound offense but acquittal on the predicate (lesser included) offense is permissible, and that collateral estoppel does not apply. The Powell decision has been followed in a number of subsequent decisions, see e.g., United States v. Romano, 879 F.2d 1056 (2d Cir. 1989), where the court stated:

The law is clear that a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment. (Citations omitted.)

This case falls directly within the rule of law announced in Dunn and reaffirmed in Powell. While McVay was acquitted of the predicate offense, he was convicted of the compound offense in the same trial. Collateral estoppel does not apply and McVay’s conviction will not be vacated. Several decisions of this court and of the Court of Appeals are in accord with the rationale of the Powell case: Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981); Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980); Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986); Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991).

As his second point, McVay argues the trial court erred in allowing testimony concerning admissions he made in the emergency room following the accident. One of the admitting nurses smelled alcohol, and in determining what medication could be prescribed, asked McVay if he had had anything to drink. He told her he had, and when asked how much, he stated he had drunk about a half a case of beer in the last hour-and-a-half.

By a motion in limine, McVay asked that the nurse’s testimony not be admitted. His argument below and again on appeal is that the statement was untrustworthy and uncorroborated and that Ark. Code Ann. § 16-89-111(d) (1987) requires that a confession be corroborated by other evidence in order to sustain a conviction. The argument, however, confuses admissibility with sufficiency of the evidence. Section 16-89-111 (d) and the cases interpreting it deal only with the sufficiency of the evidence to sustain a conviction, and not mere admissibility. The standard for reviewing that ruling is abuse of discretion. Ark. R. Evid. 103. McVay has not shown that discretion to have been abused.

MeVay also maintains his statements to the nurse were a privileged communication between physician and patient under Ark. R. Evid. 503. We cannot sustain the argument. Ark. R. Evid. 503(3) provides for a waiver of the privilege if the patient relies upon a physical, mental or emotional condition as an element of his claim or defense. At the motion in limine, McVay’s attorney stated the defense would be that McVay smelled of alcohol because beer cans in the car had ruptured and spilled over him at the time of the collision. Under these circumstances he has waived the privilege. See also Edwards v. State, 244 Ark. 1145, 429 S.W.2d 92 (1968).

Appellant next argues that the trial court erred in admitting the medical blood alcohol test into evidence. We find no merit in the contention. When McVay was taken to the emergency room after the accident, the hospital drew a blood sample and tested it, and the trial court allowed evidence of the blood test over McVay’s objection. McVay makes two arguments: 1) the blood test was admitted in violation of the Hospital Records Act, specifically Ark. Code Ann. § 16-46-304 (1987); and 2) the blood test administered was not in compliance with Ark. Code Ann. § 5-65-204 (1987).

The provision of the Hospital Records Act that McVay argues should prevent admission of his blood test is § 16-46-304, which provides that before hospital records may be used in a judicial proceeding,

1) The records have been subpoenaed at the instance of the patient involved or his counsel of record, or
2) The patient involved or someone authorized in his behalf to do so for him has consented thereto and waived any privilege of confidentiality involved.

McVay argued below that he would not consent to nor waive his confidential privilege under this statute and therefore the hospital records of his blood test could not be admitted. The trial court refused to admit appellant’s hospital records, but did allow the blood test results admitted.

The state argues the results of blood tests are not considered to be confidential information and therefore it was proper to admit them. We agree.

The Hospital Records Act was enacted in 1981, five years after our current rules of evidence were adopted in 1976. We noted in Oxford v. Hamilton, 297 Ark. 512, 720 S.W.2d 905 (1989), there was a significant change in Ark. R. Evid. 503, supra, in that previously, “any information” between doctor and patient was privileged, but in the 1976 rules the privilege has been limited to “confidential” communication. We further found in that case that a blood test result was not to be considered a confidential .communication.

Under general rules of construction we assume the legislature was aware of existing law when adopting subsequent enactments, and therefore, it intentionally designed § 16-46-304 to be in accord with our other “physician privilege” statute, Ark. R. Evid. 503, by limiting the privilege to confidential communications. Further, for the reasons adopted in Oxford, we find that under § 16-46-304 a blood test will similarly be found not to be confidential information.

McVay also argues the blood test administered did not comply with the requirements set out in § 5-64-204, a provision of our DWI Omnibus Act, and therefore the test was not admissible. While we have required compliance with the Omnibus Act, we have also held that those requirements are not necessary when the blood test is not ordered by the police or the defendant for use as evidence at trial, but has been ordered by hospital personnel for their own use in connection with the treatment of the patient. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Here McVay does not contend that either he or the police ordered the blood test for use at a criminal trial and the record reveals that the blood test was in fact ordered by hospital personnel for their own use.

At his last point, McVay argues that the trial court erred in admitting the testimony of Dr. Stockstill, a pathologist at the admitting hospital. McVay objected to his testimony on the basis of a particular calculation Stockstill used to determine what McVay’s blood alcohol level was at the time of the accident. McVay argues that this calculation is prejudicial, improper and unfair under Ark. R. Evid. 403 and permits the jury to speculate. McVay did not object to the calculation as being faulty nor to Stockstill’s qualifications to testify. The admission of such information is within the discretion of the trial court under Ark. R. Evid. 103, 403 and 703, and McVay has not demonstrated any abuse of that discretion.

Affirmed.


text:
    Dale LYNCH, County Judge v. Ralph J. BLAGG
    92-914
    847 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      H.G. Foster, for appellant.

      M. Edward Morgan, for appellee.
   Tom Glaze, Justice.

The appellee, an attorney appointed to represent an indigent charged with murder, petitioned the trial court for $18,020.00 in attorney’s fees and $435.00 in costs. No response or objection to the appellee’s petition was filed or made. The trial court subsequently entered an order granting attorney’s fees in the amount of $12,900.00 and $435.00 in expenses for a total award of $13,350.00. In its order the trial court specifically recognized our holding in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), wherein we declared the statutory fee “caps” contained in Ark. Code Ann. § 16-92-108 (1987) were unconstitutional; we further stated that, under the circumstances in that case, court-appointed attorneys are entitled to “just compensation” to reasonably compensate them for services rendered. In awarding appellee his fees and expenses, the trial court made no mention in its order as to who was to pay such award. Nor is there anything in the record showing any attempt by appellee to collect the fees and expenses awarded him.

Although appellant made no objection below to the award obtained by appellee, appellant for the first on appeal argues the trial court erred in interpreting § 16-92-108 as imposing liability on the county for the payment of attorney’s fees. He also argues the trial court misapplied our holding in the Arnold case to the facts here because the appellee here volunteered his services prior to the decision in Arnold.

Appellant acknowledges the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d371 (1992). However, appellant cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), wherein this court listed the four rare exceptions when it will review a case on appeal in the absence of an appropriate objection in the trial court. He suggests the court should add another exception where the court would review any issue which could be characterized as a “difficult and novel question” even though that question was not argued at trial. Of course, appellant further opines the issues raised in this appeal come within the “difficult and novel question” category and should be reviewed. We must reject appellant’s argument largely because such a proposed exception offers little or no definition. What might be considered a difficult or novel question is often in the eyes of the beholder and to adopt such a vague and undefined exception would arguably be adopting a version of the federal court’s “plain error” rule which this court has steadfastly refused to do.

For the above reasons, we affirm.

Holt, C.J. and Brown, J., concur.

Robert L. Brown, Justice,

concurring. I concur in this opinion but write only to clarify that we declared the statutory fee “caps” in Arnold v. Kemp, 306 Ark. 294, 813 S. W.2d 770 (1991), to be unconstitutional as applied to that case.