author: John I. Purtle, Justice. Tom Glaze, Justice, Robert H. Dudley, Justice,

text:
    IN THE MATTER OF THE ADOPTION OF S.J.B., a Minor D.J.B. and K.B.B., Adoption Services, Inc., et al., Appellants
    87-277
    745 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988

      Wright, Lindsey & Jennings, for appellant.
   John I. Purtle, Justice.

On July 9, 1987, at the age of fifteen, June Roe, unmarried, gave birth to Baby Roe (pseudonyms) as a result of an isolated sexual encounter with the biological father. The father apparently is unaware of the birth of the child. The mother has not disclosed the identity of the biological father; nor has she made any effort to notify him of the child’s birth. She declined to reveal the identity of the biological father for reasons of religion and privacy. Shortly after the birth of the baby boy she executed a “Consent to Adoption and Waiver and Entry of Appearance” in favor of the adoption agency. This document was also executed by a guardian ad litem who had been appointed to assist and advise June Roe during these proceedings. Adoption Services, Inc., then placed the child with D.J.B. and K.B.B., who subsequently filed a petition for adoption of the child in the Pulaski Probate Court.

After a hearing on the petition the trial court found that the adoption was proper in all respects except that the father had not received notice. While acknowledging that the applicable Arkansas statutes (Ark. Code Ann. §§ 9-9-206 and 207 (1987)) do not require notice to the father in this case, the court sua sponte held that the lack of notice to the father was a violation of both Due Process and Equal Protection. The court then stayed the pending adoption proceeding “until such time as evidence of notice to the father of its pendency is submitted to the Court.” This effectively terminated the adoption proceeding. (See Rules of Appellate Procedure Rule 2(a)(2).) The only issue presented to this court is whether under the circumstances of this case notice to the father is mandated by the Equal Protection and Due Process Clauses of the United States Constitution. We hold that notice to this father of the adoption proceedings is not required.

Arkansas’ Revised Uniform Adoption Act is contained in Ark. Code Ann. §§ 9-9-201 through 223 (1987). Chapter 9 section 206 enumerates those persons who are required to consent to an adoption; subsection (a)(2) requires the written consent of the father of the minor “if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has custody of the minor at the time the petition is filed, or he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought.” Section 207 lists persons as to whom notice and consent are not required; subsection 207(a)(3) reads as follows: “The father of a minor if the father’s consent is not required by 9-9-206(a)(2).”

The language of the Arkansas statutes is clear that notice to the father in this case is not required unless he has “otherwise legitimated” the child. He obviously meets none of the other statutory criteria which would entitle him to notice.

The biological father was not interested enough in the outcome of his sexual encounter with this fifteen year old girl to even inquire concerning the possibility of her pregnancy. As far as we can discern from the record, he has exhibited absolutely no interest whatsoever in the child. It is probably true that he does not know of the existence of the child. Under this factual situation we must determine whether the Arkansas statute allowing adoption without notice to the father is constitutional.

We are not dealing here with a situation where the unwed father had a significant relationship with the children as was the case in Stanley v. Illinois, 405 U.S. 645 (1972) and Caban v. Mohammed, 441 U.S. 380 (1979). We are instead dealing with the situation where the father is merely “the biological link” which brought the child into existence.

The U.S. Supreme Court has examined the extent to which a natural father’s biological relationship with his child receives constitutional protection in four cases. In Stanley v. Illinois, supra, the Court held that the Due Process Clause was violated by the automatic destruction of the parental rights of a father who had had a custodial relationship with his children without giving the father any opportunity to present evidence regarding his fitness as a parent. Quilloin v. Walcott, 434 U.S. 246 (1978), upheld the constitutionality (under both the Due Process Clause and the Equal Protection Clause) of a Georgia statute that authorized the adoption of a child over the objection of the natural father who had never legitimated the child. In Caban v. Mohammed, supra, the Court ruled that it violated the Equal Protection Clause to grant the mother a veto over the adoption of two children, but not to grant a veto to their father, who had admitted paternity and had participated in the rearing of the children; the Court held that such statutes may not distinguish between a mother and father who are in fact similarly situated with regard to their relationship with the child. (The majority in Caban did not address the Due Process argument.)

In Lehr v. Robertson, et al., 463 U.S. 248 (1983), the Court held that an unmarried father lacking a custodial, personal, or financial relationship with the child was not constitutionally entitled to notice of the child’s adoption proceeding. The father in Lehr filed a petition to vacate the order of adoption of his child. The child had been adopted when she was over two years old by the mother and the mother’s husband. The biological father had lived with the mother prior to the child’s birth and had visited the mother in the hospital when the child was born. However, he did not live with them after the birth, he never provided them with any financial support, and he never offered to marry the mother. Moreover, the father had not entered his name in New York’s “putative father registry,” which would have entitled him to receive notice of the adoption proceeding. The natural father was not a member of any class of possible fathers who were required by the New York statute to receive notice of the adoption proceeding. However, the father had filed a “visitation and paternity petition” one month after the adoption proceeding had been commenced. He subsequently learned of the pending adoption proceeding and attempted to intervene.

The Supreme Court in Lehr held that until an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child does not acquire substantial protection under the Due Process Clause. Said in other words, when the father acts like a father and takes on some of the responsibilities of fatherhood, he is entitled to be treated as a father. The Lehr Court expressly stated: “But the mere existence of a biological link does not merit equivalent constitutional protection.” The Lehr opinion concluded the Due Process discussion:

The Constitution does not require either a trial judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights. Since the New York statutes adequately protected appellant’s inchoate interest in establishing a relationship with Jessica, we find no merit in the claim that his constitutional rights were offended because the Family Court strictly complied with the notice provisions of the statute. [463 U.S. at 265]

The Fourteenth Amendment to the United States Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. When the Due Process Clause is invoked, the first step in the inquiry is to determine the precise nature of the private interest that is threatened by the state. Lehr. The parent-child relationship is a basic fabric of our society. There can be no doubt that this relationship merits constitutional protection unless the circumstances are exceptional. The states have traditionally been allowed to control matters of marriage, divorce, adoption, inheritance of property, and child custody. Society has always expressed a preference for formal families, and married parents generally have been considered to have equal authority over, and rights to, their children. It is clear from the foregoing discussion and the circumstances of this case that this father’s inchoate relationship with his child is not entitled to “equivalent constitutional protection” under the Due Process Clause.

The Equal Protection Clause requires that states may not draw distinctions between individuals or groups of individuals based solely on differences irrelevant to a legitimate governmental objective. Reed v. Reed, 404 U.S. 71 (1971). Again we find that Lehr controls the present appeal. The Court in Lehr stated: “We have held that these statutes may not constitutionally be applied in that class of cases where the mother and father are in fact similarly situated with regard to their relationship with the child.” The Court concluded this portion of the opinion:

If one parent has an established custodial relationship with the child and the other parent has either abandoned or never established a relationship, the Equal Protection Clause does not prevent a state from according the two parents different legal rights. [463 U.S. at 267]

The mother and father in this case are not similarly situated with regard to their relationship with the child. Moreover, the father is not similarly situated with any class of fathers entitled to receive notice under the statute. Under the circumstances of the present appeal, the Equal Protection Clause does not entitle this father to notice of the adoption proceeding.

It is apparent from Stanley and Caban that an unwed father who has entered into a sustained relationship with the mother of his illegitimate child, or with the child, is entitled to notice of an adoption proceeding. However, it is clear from Lehr that a parent lacking a custodial, personal, or financial relationship with his child is not constitutionally entitled to notice. We agree with the appellants’ statement that the question is not so much whether the state may terminate the father’s parental rights without notice, but whether parental rights attached in the first place.

The Arkansas law governing the establishment of paternity by the county court is applicable to all putative fathers. See Ark. Code Ann. § 9-10-104 (1987). In the present case, the putative father did not avail himself of this procedure, nor did he take any affirmative action concerning his paternity or inquire about the possibility of his fatherhood. We therefore conclude that an unmarried father lacking any substantial relationship with his child is not entitled to notice of the child’s adoption proceeding under either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Holt, C.J., and Glaze, J., concur.

Dudley and Newbern, JJ., dissent.

Tom Glaze, Justice,

concurring. While I join the majority in its result, I do so with some reservations because a strong meritorious argument exists that Arkansas’s statutory scheme fails to provide putative fathers the procedural due process that has been enunciated in at least four United States Supreme Court decisions. The majority court sets out those decisions, and, in three of them, the putative fathers had knowledge of the illegitimate child and had the opportunity to establish a relationship with the child. In the latest decision, Lehr v. Robertson, 463 U.S. 248 (1983), the putative father knew his child had been born, but had no opportunity to have a relationship with her. When comparing those Supreme Court cases to the one at bar, we find another deviation in the facts, since, here, the unwed mother, knowing the putative father’s identity, apparently failed to apprise him that she was pregnant or that she delivered his child. A brief review of the four Supreme Court decisions involving putative father rights will quickly point out why the notice provisions of Arkansas’s adoption laws are constitutionally suspect, and why that issue was raised by the trial judge in this case.

In Stanley v. Illinois, 405 U.S. 645 (1972), the Supreme Court held that the due process clause of the fourteenth amendment entitled Stanley, a putative father, to a hearing on his fitness as a parent. Six years later, the Court decided Quilloin v. Walcott, 434 U.S. 246 (1978), wherein it limited the new parental right given putative fathers under Stanley by indicating that if a putative father fails to show a substantial interest in his child’s welfare, he will not receive the full constitutional protection afforded the rights of other parents. Id. at 254-56. The Supreme Court next considered the rights of the putative father in the case of Caban v. Mohammed, 441 U.S. 380 (1979), wherein the Court held a New York law violated the equal protection clause of the fourteenth amendment because the law denied an unwed father the same power to oppose his illegitimate child’s adoption as the unwed mother. In Caban, the quality of Caban’s relationship with his children convinced the Court that the unwed father and mother were similarly situated and could not be statutorily distinguished on the basis of sex.

Finally, in 1983, the Supreme Court considered the constitutional protection afforded a putative father’s relationship with his illegitimate child in a procedural due process context. In Lehr v. Robertson, 463 U.S. 248 (1983), the Court reiterated its position that a putative father’s attempts to establish a substantial relationship with his child will determine the constitutional protection afforded that relationship. However, the Lehr Court also clearly informed the states that they must at least protect the putative father’s opportunity to form a relationship with his child. Id. at 262-65. In considering this procedural due process question, the Court reviewed New York’s statutory scheme, which the state adopted to protect the unmarried father’s interest in assuming a responsible role in the future of his child. The Court said:

After the Court’s decision in Stanley, the New York Legislature appointed a special commission to recommend legislation that would accommodate both the interests of biological fathers in their children and the children’s interest in prompt and certain adoption procedures. The commission recommended and the legislature enacted, a statutory adoption scheme that automatically provides notice to seven categories of putative fathers who are likely to have assumed some responsibility for the care of their natural children. If this scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate. Yet, as all of the New York courts that reviewed this matter observed, the right to receive notice was completely within appellant’s control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica [Lehr’s child]. [Emphasis added.]

Id. at 263-64. While the Supreme Court held that the New York statutes adequately protected Lehr’s inchoate interest in establishing a relationship with his child, the Court clearly did so because the New York law provided a means by which Lehr — by filing with the “putative father registry” — would have received notice of any adoption proceeding involving his putative child.

Arkansas’s statutory scheme fails to provide the notice or procedural safeguards the New York laws afforded putative fathers in Lehr. There, the unwed mother, throughout her pregnancy and after she gave birth, acknowledged to others that Lehr was the child’s father. However, after she was discharged from the hospital, she concealed her whereabouts, and although Lehr made substantial efforts to find her, he was unable to locate the mother until after she had married a Mr. Robertson. Lehr commenced a legitimacy proceeding, but was unaware (because of lack of notice) that an adoption proceeding had been instituted. On these facts, the Lehr Court disregarded Lehr’s due process argument that he should have received notice of the adoption proceeding, and the Court did so premised on the fact that Lehr had failed to assure his right to notice by registering as a putative father, as required by the New York law.

Unlike New York’s law, Arkansas’s statutes would not have availed Lehr (or someone in his situation) any procedural notice to assure him an opportunity to establish a relationship with his child. In fact, Ark. Code Ann. §§ 9-9-206(a)(2) and -207(a)(3) (1987) require notice to and consent of a father whose child is to be adopted only if: (1) the father was married to the mother at the time the minor was conceived, or at any time thereafter, (2) the minor is his child by adoption, (3) the father has custody of the minor at the time the petition is filed, or (4) he has otherwise legitimized the minor. Clearly, under these provisions, a putative father in Lehr’s situation could not qualify for notice of any adoption proceeding involving his child. Under such circumstances, Arkansas’s adoption law would have altogether failed to meet the test of procedural due process as set out in Lehr because our state’s statutory scheme fails to protect a putative father’s opportunity to form a relationship with his child.

Of course, the same would seem true for a putative father whose identity is known to the unwed mother, but for her own reasons, the mother chooses not to reveal to the putative father that she is pregnant, much less inform him she gave birth to his child. Under these facts — which are the ones before us now — how does a putative father establish a substantial relationship with his child? No notice that discloses the unwed mother bore his child, gave birth to it and placed the child for adoption is given to the putative father, and none is required by this state. At least one jurisdiction has held, under almost identical facts, that such notice is not required. See P and P v. Children’s Services Div., 66 Or. App. 66, 673 P.2d 864 (1983).

P and P obviously is not binding precedent here, but, confronted with a similar law and on facts that are almost identical to those presented here, the Oregon courts have upheld the constitutionality of their state’s adoption-notice statute as it relates to putative fathers. Id.;see also Burns v. Crenshaw, 84 Or. App. 257, 733 P.2d 922 (1987). Arkansas’s adoption-notice provision has been in effect since 1977, and until now, its constitutionality has been unchallenged. Even now, no putative father raises the constitutionality of §§ 9-9-206(a)(2) and -207(a)(3). Arkansas law is settled that every reasonable doubt must be resolved in favor of constitutionality of a statute, and the fact that a statute has been in effect for a long period of time without its validity having been questioned, while not conclusive, is highly persuasive of its constitutional validity. S. Cent. Dist., Pentecostal Church v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980).

As already noted, a putative father has never challenged Arkansas’s adoption-notice provisions, nor does one do so now. Instead the trial court here raised the issue, and although the court was justified in doing so, it bears the burden of overcoming the strong presumption that the law is constitutional. While I have some doubts of my own concerning the constitutionality of Arkansas’s law as it relates to the lack of notice given to putative fathers, I am uneasy in holding that law unconstitutional, especially when a comparable law has been upheld in another jurisdiction. See P and P, 66 Or. App. 66, 673 P.2d 864.

Nonetheless, I would be remiss not to at least point out (as I have tried to do) why I think Arkansas’s adoption-notice law might be constitutionally suspect and why I believe Arkansas’s notice provision could need remedial attention. In doing so, I am mindful of the problems such a notice poses to the privacy interest of an unwed mother. The Oregon Court in P and P discussed such a privacy interest and that interest assuredly was a factor when that court decided a putative father was entitled to no notice unless he came forward to assume the responsibilities of parenthood.

The question still remains, however, as to how a putative father assumes the responsibility of parenthood if he does not know the child exists? New York, by adopting a law that establishes a putative father registry, has provided a notice procedure to the father and at the same time, minimized an unwed mother’s privacy problem. That law has now passed constitutional muster, at least to the extent warranted by the facts in Lehr. Accordingly, our General Assembly should adopt the New York law, or a similar procedure, in order to ensure the constitutionality of Arkansas’s adoption-notice law. Hopefully, in considering such legislation, the General Assembly will weigh and be mindful of the privacy interests of unwed mothers.

Holt, C.J., joins in this concurrence.

Robert H. Dudley, Justice,

dissenting. There is no final order in this case as required by Ark. R. App. P. 2(a), and I would dismiss the appeal for lack of jurisdiction. Accordingly, I dissent.

David Newbern, Justice, dissenting. I agree with the majority decision as to the merits of the case. However, I would not reach the merits because I would dismiss the appeal for lack of a final order. The probate court stayed the adoption pending a showing of notice to the putative father of the child to be adopted. An adoption may be appealed only if a final order has been entered, as in any other civil case. Ark. Code Ann. § 9-9-216 (1987); Ark. R. App. P. 2(a). While we have ruled that an interlocutory order of adoption qualifies as a final order if no subsequent hearing is required by the decree, In re Appeals from Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982), here we do not have an interlocutory adoption order. The action is obviously still pending.

When there is no final order, this court lacks jurisdiction of the subject matter of the appeal, and we have a duty to raise the issue and dismiss the case. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980).

I respectfully dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Thomas TACKETT v. STATE of Arkansas
    CR 87-189
    745 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988
    [Rehearing denied March 14, 1988.]

      Achor and Rosenzweig, by: Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant contends that the trial court is subjecting him to double jeopardy and denying him a speedy trial and files this petition for a writ of prohibition. We decline to issue the writ.

On March 24,1983, on U.S. Highway 65 North in the town of Jefferson, appellant drove his van only two to three feet behind a car driven by Lesa Diffee. Nancy House and Denise Barrentine were passengers in the Diffee car. With the front of his van, appellant began to strike the rear bumper of the Diffee car, causing Diffee to lose control of her car. In the ensuing crash, Nancy House was killed instantly, Lesa Diffee was injured but later recovered, and Denise Barrentine was injured and went into a vegetative coma. On March 30, 1983, the appellant was charged with manslaughter in the death of Nancy House, and also was charged with leaving the scene of an accident. He was convicted on both counts and appealed the manslaughter conviction. The conviction was affirmed. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). During this entire period Denise Barrentine remained in a coma. On March 2,1987, she died and on April 29, 1987, appellant was charged with manslaughter in her death.

Appellant argues that Ark. Stat. Ann. § 41-107 (Repl. 1977) bars this latest prosecution. The argument is without merit. The statute, in the material part, provides that an acquittal or conviction in a prior prosecution bars a subsequent prosecution of any offense based upon the same conduct unless the second offense was not consummated when the former trial began. The crime of manslaughter is not consummated until the death of the victim. Ark. Stat. Ann. § 41-1504 (Repl. 1977). Since Denise Barrentine was not dead at the time of the conviction, this subsequent prosecution is not barred. This “not yet consummated” exception to a defendant’s right not to be tried twice for the same offense does not violate the principle of former jeopardy. Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977); Blackledge v. Perry, 417 U.S. 21, 29 n.7 (1974); and Diaz v. United States, 223 U.S. 442, 448-49 (1912). In summary, appellant has no former jeopardy defense to his trial for recklessly causing the death of Denise Barrentine.

Appellant next argues that the time for “speedy trial has run because appellant was arrested on a charge arising out of the same conduct which actually dealt with injury to Ms. Barrentine” and that he “was arrested on these charges in 1983.”

The argument is a misapplication of the speedy trial rules. Those rules do not contemplate that speedy trial time would be counted prior to the final act which made the crime complete. In this instance that was the death of Denise Barrentine. The rules cannot go into effect until all of the elements of the crime have been completed. State v. Anderson, 94 Wash. 2d 176, 616 P.2d 612, 616 (1980). Here, the appellant has been brought to trial in a timely manner after the final element of the crime occurred.

Appellant argues three other points of appeal, but they are not ripe for decision in this petition. They will be decided, if ever, after full development below and a final order.

Writ of prohibition denied.


author: Robert H. Dudley Justice. Jack Holt, Jr., Chief Justice, Per Curiam. Darrell Hickman, Justice,

text:
    Jean Merritt TAKEYA v. Eugene DIDION
    87-213
    745 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988
    [Supplemental Opinion on Denial of Rehearing March 28, 1988.]

      Easley & Hickey, for appellant.

      W.H. Dillahunty, for appellee.

      Hickman, J., concurs.

   Robert H. Dudley Justice.

The appellant, a single woman, began dating appellee, a married man. After seeing one another for a little over two years, the affair ended. At that time, according to the appellant, the appellee slapped her repeatedly, dragged her by the throat, broke her nose, threatened to kill her, and attempted to suffocate her by stuffing a sweater down her throat while pinching her nose. She sued appellee for assault and battery. The appellee denied the allegations but did admit that he hit her when she bit him. The jury was instructed as to both compensatory and punitive damages, but was not told that compensatory damages must be awarded before punitive damages could be allowed. The jury returned a verdict for the appellant and awarded her $75,000.00 in punitive damages but did not award her any compensatory damages. The appellant’s attorney moved for a judgment notwithstanding the verdict as to compensatory damages or, in the alternative, a new trial. The trial court held that since the rule is well established that a party cannot receive punitive damages unless compensatory damages have been awarded, the appellant was entitled to no damages and then denied the motion for a judgment notwithstanding the verdict as to compensatory damages and also denied a new trial. We reverse for a new trial.

In this State, “in the absence of an award for damages for the underlying cause of action, punitive damages are improper.” Bell v. McManus, 294 Ark. 275, 277, 742 S.W.2d 559, 560 (1988). The appellant first argues this general rule should not apply in this case. She asserts that at common law proof of damages was not an element of battery, and that once a battery was shown, nominal damages were presumed. The argument is an interesting one, but, even if it were accepted by this Court, it would not cause reversal because “[e]ven if nominal damages had been awarded, it still would not have supported an award of punitive damages.” Id. at 278, 742 S.W.2d at 561.

The appellant next argues that the trial court erred in refusing to grant a judgment notwithstanding the verdict by adding compensatory damages to the verdict. We addressed a comparable argument in Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985). There, the plaintiff, having lost below, argued there was no substantial evidence to support the defendant’s verdict and that the trial court erred in refusing to direct a verdict for the plaintiff. We held that the party having the burden of proof of facts may not have those facts declared a reality as a matter of law. We quoted with approval from the Supreme Court of Missouri:

“The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. ” [Italics supplied.]

Id. at 90, 689 S.W.2d at 537 (quoting Cluck v. Abe, 328 Mo. 81, 84, 40 S.W.2d 558, 559 (1931)).

Thus, the trial court ruled correctly when it refused to add compensatory damages to the verdict by use of a judgment notwithstanding the verdict.

Appellant’s final argument is that the trial court erred in refusing to grant a new trial. The argument has merit. In refusing to grant the new trial, the trial court found that the jury could have believed the appellee, but we think not. The jury did not know that if it awarded punitive damages without awarding compensatory damages the judgment would be set aside. The jury heard the appellant testify about the battery and the resulting injuries and also heard the appellee deny that testimony. Obviously, the jury decided the appellee was guilty of the battery, since it returned a verdict stating “We, the jury, find for the plaintiff . . . .” and awarded her $75,000.00 in punitive damages.

In a similar case, the jury returned a verdict for the plaintiff, with “ ‘actual damages at the sum of $_and exemplary or punitive damages at the sum of nine hundred dollars ($900).’ ” Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 179, 194 S.W.2d 876, 876 (1946) (quoting jury verdict). The trial judge entered a verdict of $900.00, and the defendant appealed. We reversed because no compensatory damages were awarded, and we ordered a new trial:

Appellant insists that the judgment should be reversed and judgment entered here for it, or the cause dismissed, notwithstanding the verdict of this jury, but we think appellant is not entitled to that relief. We have the right to, and do, however, treat his motion as one for a new trial, and when we have done so, it appears that there is an error upon the face of the record as the verdict of the jury does not support the judgment which was pronounced.

Id. at 180-81, 194 S.W.2d at 877.

Under ARCP Rule 59(a)(5), a trial court now may grant a new trial for “an error in the assessment of the amount of recovery.” Here, there was such an error, and the trial judge abused his discretion in refusing to order a new trial.

Reversed and remanded for a new trial.

Holt, C.J., and Hickman, J., concur.

Jack Holt, Jr., Chief Justice,

concurring. I concur in the results reached by the majority. However, I feel as though our holdings in this case and in Bell v. McManus, 294 Ark. 275, 277, 742 S.W.2d 559, 560 (1988), that “in the absence of an award for damages for the underlying cause of action, punitive damages are improper,” are unduly restrictive. It appears obvious to me that underlying causes of action involving crimes against the person such as assault or battery often occur without the victim suffering harm sufficient to justify an award of compensatory damages. Under our present law, the aggrieved party cannot recover punitive damages — absent actual damages — even though subjected to outrageous conduct. I would modify our present position so that if facts are established which, apart from punitive damages, are sufficient to maintain a cause of action for crimes against the person, it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.

748 S.W.2d 332

In the alternative, if we continue under our present rule, it is high time that we deal honestly with the jury and instruct them that punitive damages cannot be awarded in the absence of an award for damages for the underlying cause of action, and I would urge the drafting of an appropriate model jury instruction to that effect.

Supplemental Opinion on Denial of Rehearing

March 28, 1988

Per Curiam.

The petition for rehearing is denied.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I also would deny rehearing, but I write for two reasons. First, I should have noted that I did not agree with Chief Justice Holt’s remarks about a jury instruction. I expect it is best not to tell the jury the consequences of an award for compensatory damages.

The other reason is the appellee has pointed out that our decision seems entirely inconsistent with our decision in January, Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). I think the appellee deserves an explanation. The legal test in both Bell and this case is one of measuring the trial court’s decision, which necessarily is based on a weighing of the evidence. That means we also have to weigh the evidence as a matter of law. In Bell we could not say the trial judge abused his discretion. In this case the verdict on compensatory damages was clearly contrary to the preponderance of the evidence, and in our judgment the trial judge should have ordered a new trial. Just like trial judges, we sometimes look at a case and conclude the evidence is simply not there or it is overwhelming. In this case there was no doubt in our mind that the jury should have awarded compensatory damages.


text:
    Charles H. THARP v. STATE of Arkansas
    CR 87-127
    745 S.W.2d 612
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury convicted the appellant of driving while intoxicated, and the judge, rather than the jury, fixed the sentence. The appellant contends that the trial court erred in refusing to permit the jury to fix punishment and in rejecting a jury instruction on this issue. The argument has merit and, accordingly, we reverse and remand.

The appellant argues that he has both a constitutional and a statutory right to have a jury fix his punishment. We find that although the right asserted is not guaranteed by our constitution, it is provided by statute.

The appellant’s constitutional argument is based on the Constitution of Arkansas, art. 2, §§ 7, 10, and 22. We have already held that these very provisions are not to be interpreted to prevent a court from fixing punishment in certain cases. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

As a basis for his statutory argument, the appellant cites Ark. Stat. Ann. § 43-2145 (Repl. 1977) [now codified with minor stylistic changes at Ark. Code Ann. § 16-89-126(c) (1987)], which provides, “A general verdict is either ‘guilty,’ or ‘not guilty;’ if guilty, the jury affixing the punishment, if the amount thereof is not determined by law.” The appellant also cites Ark. Stat. Ann. § 41-802 (Repl. 1977) [now codified with minor stylistic changes at Ark. Code Ann. § 5-4-103 (1987)], which provides as follows:

(1) If a defendant is found guilty of an offense by a jury, the jury shall fix punishment as authorized by this Article [§§ 41-[ XXX-XX-XXXX ]],
(2) Except as provided by Chapter 13 [§§ 41-1303 — 41-1309], the court shall fix punishment as authorized by this Article in any case where:
(a) the defendant pleads guilty to an offense; or
(b) the defendant’s guilt is tried by the court; or
(c) the jury fails to agree on punishment; or
(d) the prosecution and the defense agree that the court may fix punishment.

We hold that under these statutes the appellant was entitled to have a jury fix his sentence and that his proffered jury instruction to this effect should have been given.

The State’s response to appellant’s arguments on this point are unconvincing. First, the State responds that the jury instruction was erroneous because the jury cannot suspend a driver’s license, citing Ark. Stat. Ann. § 75-2511 (Supp. 1985) [now codified with minor stylistic changes at Ark. Code Ann. § 5-65-104 (1987)], which provides, “[T]he court shall transmit the operator’s license to the Office of Driver Services and shall instruct the Office of Driver Services to suspend or revoke such person’s motor vehicle operator’s license. . . .” However, this statute does not take the power of license suspension from the jury; rather, it only directs the court to perform certain acts in executing the sentence. Second, the State argues that the D.W.I. laws imply that the court is to fix sentence in Ark. Stat. Ann. §75-2506 (Supp. 1985) [now codified with minor stylistic changes at Ark. Code Ann. § 5-65-109 (1987)], which provides as follows:

Upon finding of guilt or a plea of guilty or nolo contendere for violating Section 3 [§ 75-2503] of the Act, the Court shall immediately request and the Highway Safety Program or its designee shall provide a presentence screening and assessment report of the defendant. The presentence report shall be provided within thrity [thirty] (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report. The report shall include but not be limited to the offender’s driving record, alcohol related criminal record, an alcohol problem assesment [assessment], and a victim impact statement where applicable.

The State contends that if the jury fixes the sentence, then the presentence report requirement would be meaningless. This does not necessarily follow. There are situations when the report still will be of value, as when the court fixes the sentence under one of the exceptions of § 41-802(2).

The appellant next questions the propriety of the admission into evidence of his breathalyzer results. Since this issue will arise again on remand, we will address it. Under Ark. Stat. Ann. § 75-1045(c)(l) (Supp. 1985) [now codified with minor stylistic changes at Ark. Code Ann. § 5-65-204(c) (1987)], breath tests for alcohol content must be performed according to methods approved by the state Department of Health. The applicable regulations provide that a Breathalyzer 2000, the type used here, must be calibrated “at least once within twenty-four hours either before or after any subject test using a standard solution in an approved breath simulator device.” Ark. Dep’t of Health, Arkansas Regulations for Blood Alcohol Testing § 4.50 (2d rev. 1984). At trial, evidence was adduced that the closest calibration of the breathalyzer was only within twenty-four hours twelve minutes. This Court has “held repeatedly that only substantial compliance with health department regulations is required.” Marx v. State, 291 Ark. 325, 334, 724 S.W.2d 456, 461 (1987). Under the facts of this case, to say that performing the test within twelve minutes of the time limit does not qualify would be to do away with the substantial compliance doctrine. Therefore, we hold that admission of the test was proper.

Reversed and remanded.

Hickman, J., dissents.


author: Steele Hays, Justice.

text:
    IN THE MATTER OF THE ESTATE OF Donald C. CAMPBELL, Deceased
    87-281
    745 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988
    [Rehearing denied March 28, 1988.]

      DarrellF. Brown, & Associates, P.A., by: DarrellF. Brown, for appellant.

      Mickey Buchanan and Dowd, Harrelson & Moore, by: Gene Harrelson, for appellee.
   Steele Hays, Justice.

This appeal arises from the probate judge’s approval of a petition for authority to settle a wrongful death claim by one of the two co-administratrices and over the objection of the other. Two points are presented by the appellants who are statutory beneficiaries of the wrongful death claim. First, it is argued that the judge ignored the interests of the appellants by granting the authority for the settlement. Second, it is urged that the distribution of the proceeds of the settlement was unfair. We hold there was no error in granting authority to settle the claim, but that the distribution of the proceeds of settlement must be modified.

Donald C. Campbell died intestate on April 11,1984 at age forty-eight. He was survived by five adult daughters from a previous marriage who are the appellants: Linda Lovell, Rhonda Burt, Vickie Halliday, Donna Robbins, and Becky Loden. He was also survived by a widow, Verna Mae Campbell, and their minor son, Billy Don Campbell, appellees, who lived with and were supported by the decedent at the time of his death. The ages of the daughters ranged from twenty-seven to thirty-two. All were married and none was financially dependent upon Mr. Campbell. Billy Don Campbell was ten when his father died.

While we cannot know all the details of the death from the record, it is clear that it was lingering and agonizing. Mr. Campbell was in great pain which caused him to scream and cry. His body was somehow decomposing, and there was a constant smell of putrid flesh while he was hospitalized. Mrs. Campbell was with him virtually the entire time, as were some of the daughters. All of them visited him often and witnessed his condition.

Mrs. Campbell and Mrs. Lovell were appointed joint administratrices of Mr. Campbell’s estate. Together they filed a wrongful death action against St. Paul Fire and Marine Insurance Company and Dr. Richard S. Ridlon, the physician who treated Mr. Campbell at DeQueén before he was moved to a hospital in Little Rock.

The defendants offered to settle the claim by paying a cash sum of $122,500 to all the beneficiaries with further payments to Mrs. Campbell and Billy Don to be made in the future. The proposed settlement provided that Mrs. Campbell would receive $25,000 in five years, $50,000 in ten years, $75,000 in fifteen years, and $100,000 in twenty years. Billy Don would receive $10,000 in five years, $15,000 in ten years, $25,000 in fifteen years, $50,000 in twenty years, and $ 100,000 in forty years. Upon Mrs. Campbell’s request for authority to agree to the settlement on behalf of the statutory beneficiaries of the wrongful death action, the probate court held a hearing. Testimony was taken with respect to the likelihood of success of the suit, given the reputation of Dr. Ridlon in Sevier County where the suit was to be tried, and the facts surrounding Mr. Campbell’s treatment there, including the fact that Mr. Campbell had put off seeking medical help until he was quite ill. Mrs. Lovell testified that she felt the settlement was not an adequate payment for the loss she and her sisters had suffered and for the mental anguish they had endured as a result of their father’s illness and death. Mrs. Campbell testified that she was not working outside the home at the time of Mr. Campbell’s death and that he was earning between $21,000 and $26,000 a year. She testified that since the sale of the house, which had belonged to Mr. Campbell, and distribution of the proceeds, she and Billy Don were living in a trailer home and she had gone to work as a waitress earning $100 per week.

I

The Settlement

In his order granting authority to Mrs. Campbell to enter into the settlement, and in effect approving the settlement, the probate judge noted the sale of the family home, which had belonged to Mr. Campbell before his marriage to Verna Mae Campbell. Mrs. Campbell received $7,000, and each of the children received $3,000 in a partial distribution of the estate. The judge noted the sharp difference of opinion between the coadministratricies, but that their stalemate should not be allowed to thwart the wrongful death claim settlement if it were determined to be in the best interest of all the beneficiaries of the wrongful death action to accept the offer. In his order the judge discussed the financial situations of all the beneficiaries at the time of death and the obvious mental anguish suffered by all. He specifically found it to be in the best interest of the beneficiaries that Mrs. Campbell be allowed to accept the settlement offer and release the defendants in the wrongful death action. The considerations were that Mrs. Campbell and her son would be entitled to damages for pecuniary loss resulting from the death of the husband and father as well as, for Mrs. Campbell, loss of consortium. The daughters would be able to present evidence only with respect to their mental anguish. Mrs. Campbell and Billy Don would clearly have had the most at risk if the offer of settlement were to be refused. A Sevier County lawyer testified that large verdicts were not common there, admitting that, in his experience, few cases in which such verdicts might have been possible had gone to trial in the county.

On the other side, the court had before it the fact that, given Mr. Campbell’s life expectancy and earning capacity at the time of his death, the settlement would amount to only about half what he might have earned had he lived. There was also the possibility that a judgment might be obtained in excess of the amount offered and the costs of trial.

The appellants have not demonstrated that any factual determination made by the judge was clearly erroneous, Ark. R. Civ. P. 52(a), or that his decision was otherwise arbitrary or improper. He clearly did not ignore the interests of any of the beneficiaries, thus we affirm the decision to allow Mrs. Campbell to agree to the settlement.

II

The Distribution

The probate judge authorized the co-administratrix to enter into a settlement and directed the distribution of the proceeds among the wrongful death statutory beneficiaries. Of the initial payment of $122,500 he ordered the distribution as follows:

Verna Mae Campbell $102,500.00
Billy Don Campbell 10,000.00
Linda Lovell 1,000.00
Rhonda Burt 1,000.00
Vicky Halliday 1,000.00
Dona Robbins 1,000.00
Becky Loden 1,000.00

Mrs. Lovell and the other daughters contend the distribution was unfair in giving each of them only $ 1,000, to be paid from the initial amount of the settlement. We agree.

Although probate cases are tried de novo on appeal, we regard the distribution of wrongful death proceeds as invoking in some measure the trial court’s discretion. We recognize, as did the probate judge, that the dependency of Verna Mae Campbell and Billy Don Campbell justifies a disproportionate allowance in their favor. Even so, the size of the settlement permits adequate provision for the future support of the widow and son without, at the same time, virtually excluding the daughters. It was undisputed that Mr. Campbell had a close and loving relationship with all his children. All of the daughters were frequent visitors during Mr. Campbell’s long hospitalization. Two of them, Mrs. Lovell and Mrs. Robbins were there almost around the clock. It was they who recognized the seriousness of their father’s condition and took the prompt steps necessary to get him hospitalized. There was ample evidence of their devotion and of their witness to the extraordinary pain and suffering he experienced over a lengthy interval. While the daughters have husbands who are employed, none enjoys more than a marginal subsistence. Mrs. Lovell and her husband support themselves and five children on approximately $15,000 annually. In short, we believe the factor of dependency was recognized to the near exclusion of any other consideration. The very fact that the settlement as projected allocates $200,000 to Billy Don after he reaches adulthood (half of which is paid to him at age fifty, far beyond any plausible stage of dependency) demonstrates the inequity of the distribution. Contrasted, as well, is the fact that Mrs. Campbell would continue to receive sizeable payments, the final one being $100,000 twenty years hence. We conclude that an' award of $1,000 to each daughter from a gross recovery of approximately $225,000 is for all practical purposes merely nominal. The order is modified to allow $5,000 to each appellant from the initial settlement figure.

AFFIRMED AS MODIFIED.


author: David Newbern, Justice.

text:
    Ray DAWSON and Diamond Woods, Inc. v. Dewey FULTON
    87-216
    745 S.W.2d 617
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988

      Daggett, Van Dover, Donovan & Cahoon, by: Jesse B. Daggett, for appellants.

      B. Michael Easley, for appellee.
   David Newbern, Justice.

This is a personal injury case in which a farm employee, the appellee Dewey Fulton, sued his employer for negligence. The jury returned a verdict in Fulton’s favor, and the appellants, Ray Dawson and Diamond Woods, Inc., contend the court should have granted a directed verdict or a judgment notwithstanding the verdict. In the alternative, they contend a new trial should be granted because the damages awarded were excessive. They also seek a new trial on the basis that certain expert testimony should not have been permitted. We find substantial evidence in support of the verdict, that the damages were not so demonstrably excessive as to require reversal, and that the expert testimony was not improperly admitted, and therefore the judgment is affirmed.

1. Directed verdict or judgment n.o.v.

In reviewing a court’s refusal to direct a verdict or grant judgment n.o.v. in favor of a defendant, the evidence should be viewed most favorably to the position of the plaintiff and the verdict, recognizing that it would have been error to have directed a verdict or granted judgment n.o.v. if the evidence was such that fair-minded persons could have drawn different conclusions. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981).

From the testimony the jury could have concluded that Ray Dawson, Dewey Fulton’s employer, sent another employee to Fulton to tell him to unload a dump trailer filled with gravel. Fulton protested that it would be too dangerous to unload the trailer at the current temperature, which was 16°, because the gravel would be frozen and likely to unload unevenly, causing the trailer to overturn. Fulton attempted to perform the task as he knew Dawson’s temper to be such that if he refused he would be “fired.”

Fulton had obtained the load of gravel in Little Rock. The tractor pulling the trailer had become disabled on the way back to Marianna, which resulted in the gravel sitting unprotected for a number of days, absorbing precipitation which added to the moisture present in the gravel when it was loaded. Dawson knew the danger in raising one end of a 32-foot trailer under what he referred to as “strange” conditions. Fulton knew the danger too, because he had turned the same trailer over previously.

When he arrived at the scene where the trailer was parked, Fulton operated the dump controls which were located on the outside of the tractor. He raised the trailer once, and it did not unload. Other employees told him that as he had lowered it the gravel “broke loose,” so he tried again, and the trailer turned over. Fulton was thrown some twenty feet from the cab and fractured his pelvis, pubic bones, and a portion of his sacrum or tailbone. He also sustained a concussion and remained hospitalized from February 6 until February 24. At an April 26 follow-up visit, X-rays revealed a painful separation fracture of two bones in his wrist which led to surgery on August 3 to fuse his wrist. As a direct result of the immobilization of the wrist following surgery Fulton’s shoulder became frozen. As treatment for this painful condition he was anesthetized and manipulation of the shoulder was performed. Also as a result of the injury of February 6 Fulton developed pulmonary emboli (blood clots) which led to additional hospitalization and treatment.

The negligence alleged against the appellants is that Dawson required Fulton to perform a dangerous act under conditions he knew to be too hazardous, and that the equipment supplied to Fulton by Dawson and Diamond Woods, Inc., was faulty and known to be so by Dawson. The jury could reasonably have concluded it was negligence for Dawson to have sent Fulton to dump gravel from a 32-foot trailer in 16° weather when it was likely that the gravel was frozen and stuck together in a manner so as not to unload evenly.

Likewise, the jury could have concluded it was negligence to have supplied defective equipment. There was testimony from Doyle Wheeler, who was qualified as an expert trucker, to the effect that a trailer which had previously turned over, as had the one in question, would undoubtedly be bent or twisted. That testimony was augmented by evidence that after one such upset, the trailer was placed by the appellants over a ditch in an attempt to “mash the kink out of it” with a front end loader. It was the witness’s conclusion that even a trailer which was twisted only slightly would tend to expel its load unevenly and thus tend to overturn. Additionally, the jury could have concluded that the lever operated to raise the trailer was defective in that it was necessary to hold it continuously while unloading to prevent the trailer from coming down.

There was evidence from which the jury could have concluded that the appellants were not negligent, but we need not discuss it because we find the evidence we have recited was sufficient to support the jury’s finding. Much of the argument of the appellants is devoted to pointing out Fulton’s awareness of the danger. We no longer apply the assumption of risk doctrine, but permit the jury to compare negligence pursuant to Ark. Code Ann. § 16-64-122 (1987). W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). We find no error.

2. Excessive damages

The injuries to Fulton were severe. There was considerable evidence from his wife with respect to the pain he suffered. He was sixty years old and had only laborer skills which he could no longer use to support himself and his family. Fulton presented evidence of $34,000 in medical bills and lost wages of $16,000. The jury awarded $270,000 on a general verdict.

To say the court erred in refusing a new trial because the damages were excessive, we would have to find the amount awarded shocks the conscience and was the product of passion or prejudice on the part of the jury. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). We cannot so conclude.

3. Expert testimony

The appellants contend it was error to permit Doyle Wheeler, the trucker mentioned earlier, to testify as an expert. Primarily, the objection is that he did not own a frame-type trailer like the one involved in this case. Although he said he did not own such a trailer, he demonstrated considerable knowledge of the type and the dangers in using one to dump gravel.

The appellants’ objection to Mr. Wheeler’s testimony is that he was not qualified to testify as an expert. That is a matter within the discretion of the trial court. Blair v. State, 284 Ark. 330, 681 S.W.2d 374 (1984); Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). We find no abuse of discretion.

The appellants contend it was error to permit Dr. Douglas Stevens, a clinical psychologist, to testify with respect to Fulton’s personality. Here, the objection goes not to the qualifications of the witness, but to whether his testimony was needed or usurped the function of the jury. Fulton had been to several physicians and had been uncommunicative about his condition. Dr. Stevens said Fulton’s stoic personality was responsible. That testimony was relevant to proof of injury. His testimony went also to show that Fulton was a “follower,” and thus tended to take orders as a “good soldier” and not refuse them even in the face of danger. That testimony related to comparison of Fulton’s negligence with that of the appellants.

The appellants cite Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (Ark. App. 1980), for the proposition that Dr. Stevens’s testimony should have been excluded because it dealt with a subject the jurors could understand without it. In that case the testimony of a psychologist was offered to show, through the “science of human perception,” why a witness might recall or not recall events. It was held that the ability to recall, and the reasons for it, were subjects within the knowledge of average persons serving on a jury, thus it was not improper to exclude the testimony:

Also cited is Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978), in which we held that it was not proper to receive the testimony of a mortician about grief of a family member in a wrongful death case because the mortician’s attendance at mortuary school and over 200 funerals did not qualify him to do so. We noted the mortician’s testimony illustrated his “very limited knowledge” of the subject matter, and his definition of “extraordinary grief’ was contrary to one we had given in a previous case.

Dr. Stevens’s testimony was different from testimony on “human perception.” The court of appeals in the Caldwell case noted that the science of “human perception” was new and, within the broad discretion of the trial court, not improperly excluded when its probative value was balanced against the danger of its prejudicial effect. Nor is personality evaluation in this case like grief evaluation in Williams v. Carr, supra. While jurors may be familiar with grief expressed upon loss of a family member, they are not so familiar with personality traits which might cause one not to reveal one’s condition to a physician. Neither we nor the appellants question the qualifications of Dr. Stevens as a psychological expert as we questioned the qualifications of the mortician as a grief expert.

The question here is whether the testimony, in the words of Arkansas Rules of Evidence 702, “assist[s] the trier of fact to understand the evidence. . . .” We hold that the appellants have not shown that the testimony of Dr. Stevens was improper under that standard.

Affirmed.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Bill SISSON v. Geraldine RAGLAND
    87-250
    745 S.W.2d 620
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988
    [Rehearing denied March 28, 1988.]

      M. Watson Villines II, for appellant.

      F.N. “Buddy” Troxell, for appellee.
   David Newbern, Justice.

This action was dismissed by the trial court on the basis of the statute, now codified as Ark. Code Ann. § 17-22-103 (Supp. 1987), which prohibits the bringing of an action by an unlicensed contractor to enforce a contract to construct a building, other than a single family dwelling, for $20,000 or more. We reverse and remand the case because the dismissal motion was untimely and was entertained by the court despite an objection on that ground.

The appellant makes two arguments on appeal alternative to his point on the untimeliness of the dismissal motion. First, he claims that, even if the statute prevents his recovery in contract, his plea for recovery in quantum meruit should not have been dismissed. Second, he asserts the trial court erred in finding the parties entered into only one contract for more than $20,000 when that determination should have been left to the jury. We address these two issues in case they arise on remand.

The appellant, Bill Sisson, is a contractor who agreed to erect a building to house a beauty shop for the appellee, Geraldine Ragland. It is undisputed that the initial contract price was $15,000. After substantial work had been done on the building, and Mr. Sisson had been paid $5,000, a dispute arose as to the degree to which Mr. Sisson was to finish the building. Ms. Ragland had issued a check to Mr. Sisson for an additional $7,500, but she stopped payment on it when she became aware that the parties had different notions of that which was to be built by Mr. Sisson. After negotiations, Ms. Ragland released the check, and Mr. Sisson did more work. He was thus paid $12,500. He sued Ms. Ragland for breach of contract, seeking damages for lost profits in the amount of $5,000 and for $9,052 which he still owes material suppliers on the project. In the alternative, he sought recovery in quantum meruit for the value of the services he rendered to Ms. Ragland.

Mr. Sisson’s complaint was filed February 8, 1985. On February 19, 1987, one week before the case was to go to trial, Ms. Ragland moved for dismissal on the basis of § 17-22-103. At a hearing on the motion, Mr. Sisson objected to the motion on the ground that it was untimely as it was not made until within ten days of trial. The motion did not cite a basis in the rules of procedure; however, if it was an assertion of any of the grounds stated in Ark. R. Civ. P. 12(b), other than lack of subject matter jurisdiction, it was untimely if not made before pleading on the merits. Ms. Ragland had long since answered the complaint when she filed the motion. If, however, the motion was an assertion of lack of subject matter jurisdiction, it was not untimely. See Ark. R. Civ. P. 12(h) (3). The court ruled that the motion asserted lack of subject matter jurisdiction and proceeded to take testimony on the question whether the contract was one for more than $20,000. The action was dismissed.

1. Subject matter jurisdiction

We have not previously ruled on the question whether § 17-22-103 presents a question of jurisdiction, but we are certain it does not. Jurisdiction has to do with the power and authority of a court to act. See Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). By stating, in § 17-22-103(d) that “[n]o action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this chapter,” a party may be provided an affirmative defense to such an action, but the jurisdiction of the court is not affected.

The situation is analogous to the defense created by the Wingo Act which precluded foreign corporations which had failed to comply with the act from making any contract in this state which could be “enforced in law or in equity.” See Ark. Code Ann. § 4-27-104(c) (1987). Cf. Ark. Code Ann. § 4-27-502 (Supp. 1987). This type statute creates an affirmative defense of illegality to an action on a contract. Leasing Associates, Inc. v. Slaughter & Sons, Inc., 450 F.2d 174 (8th Cir. 1971). It does not affect the court’s jurisdiction of the subject matter.

2. Quantum meruit

Even if the motion could have been characterized as a timely challenge to the complaint, questioning whether it had stated facts upon which relief could be granted, the motion would have gone only to the contract claim and would, in any event, have left standing Mr. Sisson’s alternative plea for relief in quantum meruit. Quantum meruit is a claim for unjust enrichment which does not involve enforcement of a contract. Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). A quantum meruit claim may succeed even where it is pursued in the alternative to a contract which is void. City of Damascus v. Bivins, 291 Ark. 600, 726 S.W.2d 677 (1987).

3. Contract for $20,000 or more

The appellant contends there were two construction contracts, each for less than $20,000 and thus the statute does not apply. The appellee claims there was only one contract for more than $20,000.

The parties presented conflicting evidence regarding the existence of more than one contract. Even if a dismissal motion or motion for judgment on the pleadings is treated as one for summary judgment, it should not be granted if a fact question remains. See Ark. R. Civ. P. 12 and 56 and Maas v. Merrill Associates, 13 Ark. App. 240, 682 S.W.2d 769 (1985). Given our conclusion that this issue was not one upon which the court’s jurisdiction rested, it is clear the court should not have attempted to resolve it. The question is one of fact if it arises upon remand.

Reversed and remanded.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. Lawyers should make a note to put this case in their legal tricks notebook. Merely by uttering the incantation “quantum meruit” an unlicensed contractor can now avoid Ark. Code Ann. § 17-22-103(d) (1987).

The same is true regarding the Wingo Act, which generally prohibits non-resident corporations from enforcing contracts made in Arkansas when they are not authorized to do business in Arkansas. Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986).


author: Tom Glaze, Justice.

text:
    James Weatherby COLEMAN, et al. v. MISSOURI PACIFIC RAILROAD COMPANY
    87-261
    745 S.W.2d 622
    Supreme Court of Arkansas
    Opinion delivered February 29, 1988

      Joe Holmes, for appellants.

      Herschel H. Friday, Michael G. Thompson and M. Gayle Corley, by: Michael G. Thompson, for appellee.
   Tom Glaze, Justice.

This case involves the construction of three deeds, which were executed in 1902 by J. S. Coleman and his wife to the El Dorado and Bastrop Railway Company, predecessor in interest to the appellee. Appellants, the sole heirs of Mr. and Mrs. J. S. Coleman, filed this quiet title action, claiming that the deeds in question conveyed only right of way easements and that the title to the property has since reverted to them since the appellee no longer uses the easements for railroad purposes. The trial court rejected the appellants’ contentions and quieted fee simple title to the disputed property in the appellee. We affirm.

The sole question on appeal is whether each of the three deeds in issue conveyed an easement or a fee simple title. When called upon to construe deeds and other writings, this court is concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed, and, if such intention clearly appears, effect will be given thereto. Chicago, Rock Island & Pacific R.R. Co. v. Olsen, 222 Ark. 828, 262 S.W.2d 882 (1953). In Olsen, the court stated the general rule to be that if the deed purports to convey only a right of way, it does not convey the land itself, but the fee remains in the grantor, and the railway company acquires a mere easement in perpetuity for railway purposes.

In the instant case, Mr. and Mrs. J. S. Coleman’s first deed was executed on May 9,1902, and this deed purported to convey “a strip of land one hundred feet wide.” That deed contained no reference that the strip was conveyed as a right of way. However, on July 23, 1902, the Colemans executed two additional deeds:

(a) one conveyed “a strip of land 100 ft. wide for right of way also an addition at strip of land 250 ft. wide extending lying on the south side of said right of way and adjacent thereto . . . .” and

(b) the other conveyed “a strip of land 100 ft. wide for right of way . . . also extra for depot grounds a strip of land 250 ft. wide lying south of and adjoining said right of way.” Appellant argues that the language used in the granting clause of the deeds — when considered with other factors — reflects that the Colemans intended only to convey right of way easements for railroad purposes. Since appellee no longer uses these properties for railroad purposes, appellants claim these lands have reverted to them as heirs of Mr. and Mrs. J. S. Coleman. In making such an argument, appellants rely heavily on the case of Daugherty v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952). See also El Dorado & Wesson Ry. Co. v. Smith, 233 Ark. 298, 344 S.W.2d 343 (1961).

In Daugherty, the deed contained language in its granting clause that is almost identical to that which appears in the two deeds here dated July 23,1902, viz., “In consideration of the sum of five dollars and of the benefits to accrue to us from the construction of the Missouri & North Arkansas Railroad, we . . . convey ... a strip of land 100 feet in width for a right of way . . .” In holding that the deed in Daugherty granted an easement and not a fee simple title, the court reasoned that the deed referred not simply to a strip of land but instead specified a strip of land 100 feet in width “for a right of way.” The court further said that, when the grantor unequivocally conveys the fee, his designation of the property’s intended use should be regarded as surplusage; but when the grantor’s intention is itself subject to question, then the fact that he attempts to restrict the future use of the property becomes a factor in the interpretation of his deed. In holding the parties, by their deed, intended to convey an easement, the court emphasized those factors it believed indicated an easement, not a fee simple title, viz., that only a nominal consideration had been paid by the railway company for the strip of land; that the shape of the tract conveyed indicated a right of way; and that the railway company was given the right “to take stone, gravel and timber and to borrow earth on the said right of way” for the construction and maintenance of the railroad. Concerning the last factor, the court reasoned that if a fee simple had been intended by the parties, it would have been absurd to provide that the grantee, railway company, could take its own stone and gravel and borrow its own earth.

Although the granting language in the Daugherty deed is quite similar to that in the two July 1902 deeds now before us, other facts apparent here clearly distinguish the Coleman deeds from the one considered in Daugherty. For example, the grantee railroad company, by the three deeds involved here, was acquiring adjacent property so as to lay a track and to construct a depot, and while the two July 1902 deeds contained “right of way” language, the parties’ first deed included no words of limitation or purpose. None of the original three deeds were titled as right of way easements, although when filed, a scrivener in the clerk’s office wrote “right of way” on the clerk’s records.

Next, in all three deeds, we find the railroad company was granted “the right of increasing the width of the [100 foot wide strip of land] for necessary slopes, embankments and turnouts, and with the right of changing water courses, and of taking a supply of water and of borrowing or wasting earth, stone or gravel outside of said limits . . . .” Clearly, such language inferential^ reflects that the Colemans deeded the strips of lands in fee simple title, and in addition, they conveyed the railway company the right to remove or affect the water, earth, gravel, or stone located outside the lands the company was granted. In comparison, we find the contrasting language found in the deed in Daugherty which granted the railway company the right to the earth, stone or gravel on the right of way, thereby indicating the company had only an easement.

Another distinguishing and important fact found here that was not existent in Daugherty is that, in all three deeds, Mrs. Coleman joined in executing the deeds by renouncing her homestead and dower rights. As was noted by the court in St. Louis & San Francisco Ry. Co. v. Tapp, 64 Ark. 357, 42 S.W. 667 (1897), a right of way is an easement, not a title, and it may be granted over a homestead without the concurrence of the wife. Thus, the clear implication from Mrs. Coleman’s relinquishment of her homestead and dower rights is that the Colemans intended to convey fee simple title rather than an easement.

Finally, we note that the two July 1902 deeds, while containing right of way language, also included language granting the railway company an “extra” 250 ft. wide strip of land located adjacent to and on the south side of the 100 ft. wide right of way. One of these deeds described the 250 ft. wide strip of land as being for depot grounds. In Lynch v. Cypert, 227 Ark. 907, 302 S.W.2d 284 (1957), the court construed a warranty deed to have conveyed fee simple title when the deed terms granted “50 feet on either side of the 100 feet of right of way heretofore deeded to St. Louis & N. Ark. Ry. Co. for depot grounds.” In distinguishing the deed in Daugherty from the one before it, the court in Lynch said the deed in Daugherty was expressly “for a right of way,” which brings to mind the thought of an easement, while a depot site suggests a more extensive use of the land.

In sum, appellants underscore factors reflected in the three disputed deeds and ably argue prior cases wherein this court found railroad easements. Of course, appellee cites precedents where this court had reached the opposite conclusion. See Rostell v. Ark. & Ozark Ry. Corp., 230 Ark. 515, 323 S.W.2d 539 (1959), and Lynch v. Cypert, 227 Ark. 907, 302 S.W.2d 284.

Based upon our examination and study of the deeds here, we are convinced that the distinguishing factors we discussed above clearly support the trial judge’s holding that the parties here intended to convey the disputed properties in fee simple and not as easements. In so holding, we have not overlooked appellants’ other arguments. In this regard, appellants urge that the parties’ use of quitclaim deeds instead of warranty deeds reflects they did not intend to convey the lands in fee simple. Also, as we alluded to earlier, appellants suggest the nominal consideration given by the railway company is reason to believe the Colemans intended a mere right-of-way conveyance. In response, we need only say that quitclaim deeds, like warranty deeds, are commonly used to convey fee simple titles, and while nominal monetary consideration might be recited in a deed, other good and valuable consideration may exist as well. For instance, in this case, the deeds recite “consideration of the benefits to accrue to the [grantors] from the building of the railway company.” In 1902, such a consideration could well have been most valuable.

In accordance with the reasons given above, we affirm the trial court’s decision.

       In their 'reply brief, the appellants also .suggest that other parties’ deeds which conveyed land along the same railway should be considered by this court when construing the Coleman deeds. Apparently, the appellee disclaimed any fee simple title in those tracts. Those documents simply are not controlling as to the deeds here, and as stated previously, we limit our review to the four corners of the instruments before us.


author: Jack Holt, Jr., Chief Justice.

text:
    Gary Don CAMPBELL and Joel Alen Wood v. STATE of Arkansas
    CR 87-185
    746 S.W.2d 37
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988

      Hale, Ward, Young, Green, Nixon, Jacobs, Hickey & Hendricks, by: Milas H. Hale III, for appellant Joel Alen Wood.

      Dodds, Kidd, Ryan & Moore, by: RichardN. Moore, Jr., for appellant Gary Don Campbell.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellants, Joel Alen Wood and Gary Don Campbell, were tried together, convicted of aggravated robbery, and sentenced to forty years imprisonment. Campbell contends that the court erred in refusing to suppress evidence obtained in a search of a vehicle. Wood asserts there was insufficient evidence to support his conviction. Both Campbell and Wood argue that the trial court erred in failing to properly instruct the jury on accomplice liability. We find no error and affirm both convictions.

Monty Cazer, his wife, and their child, were driving on Interstate 30 at approximately 3:30 a.m. on October 14, 1986, when their car ran out of gas. As Cazer was walking along the interstate to get help, a car approached, and one of the men inside asked him if he needed a ride. Cazer got into the car, and he and the four men, Henry Tippitt, Joel Wood, Gary Campbell, and Mark Murphy, rode around for awhile. After they stopped in a motel parking lot, Cazer was beaten up, threatened with death, robbed, and let out of the car. Subsequently, the police arrived. As Officer Joseph Fisher of the Little Rock Police Department was taking Cazer back to his car, a blue-gray Camaro passed the squad car. Cazer, recognizing the license plate and luggage rack, identified the Camaro as the vehicle which contained the men who had robbed him. He also told the officer to be careful because the men had a knife and gun. Officer Fisher pulled the Camaro over and had the driver, Campbell, exit and stand at the rear of the car. He then went over to the passenger side of the vehicle and asked Murphy to step out. As Murphy exited, Fisher shined a flashlight into the car, at which time he saw some papers on the front floorboard, one of which had the name Monty Cazer written on it. After having Murphy go to the rear of the car, he arrested both men. Fisher immediately went back to the passenger side of the car. As he leaned in to collect the papers from the front floorboard, Fisher saw the handle of a butcher knife sticking up between the seat and the console. He then seized the knife.

I. VEHICULAR SEARCH

All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987) (U.S. appeal pending). Campbell contends that none of the exceptions apply in this case and, therefore, the knife was seized in violation of his fourth amendment rights. We disagree.

Although the parties argue the applicability of the plain view exception, we do not resolve this issue since the officer made a valid search and seizure incident to arrest. Ark. R. Crim. P. 12.4 permits an officer, incident to arrest, to contemporaneously search a vehicle and seize things subject to seizure if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made. Incident to a valid custodial arrest, a police officer may contemporaneously search the passenger compartment of a vehicle as well as examine any containers found within the passenger compartment. New York v. Belton, 453 U.S. 454 (1981); Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982).

Officer Fisher had probable cause to stop the vehicle and detain Campbell and Murphy after Cazer positively identified it as the one containing the men who had robbed him. Once he saw the paper with Cazer’s name on it in plain view, see Johnson, supra; Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), the officer made a valid custodial arrest. A police officer may make a warrantless arrest when he has reasonable cause to believe that a felony has been committed. See Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981), cert. denied, 456 U.S. 1008 (1982); see also Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986); Ark. R. Crim. P. 4.1 (a) (1). The contemporaneous search of the passenger compartment and the resulting seizure of the knife were permissible incident to the arrest.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). We find that the preponderance of the evidence supports the trial court’s refusal to suppress introduction of the knife as evidence.

II. SUFFICIENCY OF THE EVIDENCE

Wood argues that the evidence was insufficient to support his conviction for aggravated robbery based upon inconsistencies in statements made by the victim. We disagree.

A few hours after the robbery, Cazer gave a statement to police that Murphy, the man next to him in the backseat of the car, threatened to “blow him away.” Eight days later, he gave a different statement that Wood, who was seated in the front passenger seat, not Murphy, threatened to kill him. At trial, Cazer admitted that his first statement was incorrect. However, he explained that he was unstable and injured at the time and did not read the statement line by line. He also testified that it was Wood who acted like he had a gun and threatened to “blow him away.”

Any inconsistency between a prior statement of a witness and his testimony at trial is a matter of credibility to be determined by a jury. See Parkman v. State, 294 Ark. 339, 742 S.W.2d 927 (1988); see also Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). The jury obviously resolved any inconsistencies and found the appellant guilty, as an accomplice, of aggravated robbery. We find there is substantial evidence to support the verdict. See Parkman, supra.

III. INSTRUCTIONS ON ACCOMPLICE LIABILITY

Both Campbell and Wood contend that the trial court erred in refusing to fully instruct the jury on accomplice liability. Their contention has no merit.

The appellants proffered four instructions on accomplice liability, based upon case law, which the trial court declined to give. It instead gave AMCI 401. Non-model instructions are to be given only when the trial court finds that an AMCI instruction does not accurately state the law or is inapplicable. Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984); Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). Since AMCI 401 accurately states the law and is applicable, the court did not err.

Affirmed.


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

text:
    Dewayne WORTH v. CIVIL SERVICE COMMISSION of El Dorado
    87-229
    746 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988
    [Rehearing denied April 4, 1988.]

      Spencer Spencer Depper & Guthrie, by. David F. Guthrie, for appellant.

      Henry C. Kinslow, City Att’y of El Dorado, for appellee.
   Robert H. Dudley, Justice.

Appellant, Dewayne Worth, is a member of the El Dorado Fire Department. In the spring of 1985, two vacancies occurred in the rank of captain in the department. Appellant and five other El Dorado firemen sought promotion to the vacancies by taking the civil service examination. The examination consisted of a written test valued at forty points, a departmental evaluation worth twenty-five points, questions posed by the civil service commissioners worth twenty-five points, and seniority counting ten points. Had seniority not been used, appellant would have been promoted. In June 1986, he filed a suit contending that the use of seniority was in violation of Ark. Stat. Ann. § 19-1603 (Repl. 1980). The trial court held that the use of seniority did not violate the cited statute.

Appellant first argues that “the trial court committed error in finding that the appellee did not violate Ark. Stat. Ann. § 19-1603 in formulating the testing procedure.” The argument is meritorious. The statute providing for promotion by competitive examination, Ark. Stat. Ann. § 19-1603 (Repl. 1980), did not provide for seniority to be used as a factor in promotion. Thus, seniority could not be used as a factor. Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986).

The trial court recited that it did not apply the case of Bradley v. Bruce, supra, because that would amount to a retroactive application of a decision. The trial court was in error. At all times material to the Bradley case and, at all times material to this case, the statute at issue did not provide for the use of seniority as a factor in promotion. The interpretation of the statute should be the same in both cases. A decision interpreting a statute is not being applied retroactively when one litigant is treated the same as another. Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), cert. denied, 456 U.S. 916 (1982).

The trial court also found that, even if seniority could not be used pursuant to the statute at issue, a decision in favor of appellant “would cause a disruption in both the Police and Fire Departments in the City of El Dorado and would adversely affect the administration of justice by a number of suits which might be filed under the new rule.” The appellant argues that there is no basis in law for the trial court to refuse to follow the statute. Again, the appellant’s argument is meritorious. The legislative branch of government determines the wisdom or folly of a bill, but once it has made that determination and enacted a bill into law, the courts must follow a constitutional act, whether a particular judge thinks it is a good law or a bad law. To hold otherwise would be to allow some parties, such as the appellee civil service commission in this case, to be above the law.

In an effort to uphold the trial court’s decision, for reasons other than the ones stated by the trial court, the appellee argues that estoppel, laches, and waiver should be applied against appellant because “he did not object to the use of seniority until over 12 months after his test result.” The argument will not uphold the lower court’s decision.

Estoppel is a doctrine which involves both, not just one, of the parties. Continental Ins. Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). The party claiming estoppel must prove he relied in good faith on some act or failure to act by the other party, and that, in reliance on that act, changed his position to his detriment. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). Here, the appellee civil service commission has not shown that it detrimentally changed its position based upon an act or failure to act by appellant. Thus, the doctrine of estoppel is not applicable against the appellant.

Similarly, the doctrine of laches is not applicable because it too requires a detrimental change in the position of the one asserting the doctrine as well as an unreasonable delay on the part of the one against whom it is invoked. Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983). Here, twelve months did not amount to an unreasonable delay in filing the suit, and the commission simply did not change its position as the result of a delay.

Likewise, the doctrine of waiver is not applicable. It involves one party’s intentional surrender of a right. In order for the doctrine to be applicable in this case it would be necessary to show that the appellant had full knowledge of his right to object to seniority being used for promotion, and that he intentionally surrendered that right. Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). Such a showing was not made.

Even though the appellant prevails on his point of appeal, his victory will be one of principle only. He has not joined the captain whom he seeks to have demoted, nor has he joined the City against whom he seeks a judgment for back wages. His relief necessarily will be limited to that which can be granted against the only defendant, the Civil Service Commission of El Dorado. We can only reverse and remand for entry of a decree consistent with this opinion. This is not the type of case we remand for a complete new trial and in which the parties may amend their pleadings. See Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); and Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949).

Reversed and remanded for entry of a decree consistent with this opinion.

Hickman, Hays, and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority is applying Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986), retroactively, which I think is a mistake. Nothing in Bradley v. Bruce suggests that retroactive application was intended and we do not, as a rule, adopt that course. Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986);Solem v. Stumes, 465 U.S. 638 (1984); Cunningham v. State, 251 Ark. 277, 471 S.W.2d 777 (1971); Gross v. State, 246 Ark. 909, 440 S.W.2d 543 (1969); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 245 (1968); Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952); Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932); Johnson v. State, 248 Ark. 184, 450 S.W.2d 564 (1970); Ford v. King, 268 Ark. 128, 594 S.W.2d 227 (1980); Leffler v. Banks, 251 Ark. 277, 472 S.W.2d 110 (1971). That is often true even where basic constitutional rights are concerned. Johnson v. State, supra.

There is nothing to suggest that the El Dorado Civil Service Commission acted in bad faith in giving limited weight (10 points) to seniority on its civil service examinations. It had been doing that in both the police and fire departments for perhaps twenty years. All of the police and fire department personnel were fully aware of that fact and while seniority was discussed from time to time there was no objection to its use. The civil service statutes provide that promotion shall be based on open competitive examinations of “efficiency, character and conduct,” and it seems plain enough that efficiency and experience have a correlation. Efficiency is defined as the “ability to accomplish a job with a minimum expenditure of time and effort.” Hence, length of service, i.e., seniority, bears directly on efficiency. At least, it was not implausible for El Dorado, like North Little Rock and other cities, to give some deference to seniority. The trial court found that by so doing the commission acted in good faith and Dewayne Worth has not even argued otherwise. If there were any doubt on that point, the fact that the legislature (at the first opportunity following the decision in Bradley v. Bruce) expressly incorporated seniority into the language of the civil service statutes, is answer enough to a retroactive application.

The majority asserts that when litigants are treated identically a decision is not being applied retroactively. I have no quarrel with that assertion in the abstract, but the unmistakable fact is that in order for Dewayne Worth to prevail in this case, Bradley v. Bruce must be given retroactive operation. Worth joined the El Dorado Fire Department thirteen years ago and has never been uninformed as to the use of seniority in civil service examinations. Not once did he object. When the examination was again offered in the spring of 1985, he and five others took the examination, again with no objection to seniority. Jerry Thomas ranked first, Wesley Harper second and Dewayne Worth third. Had seniority not been used, Worth would have been second and Harper third by a fraction of a point. Worth continued to voice no objection when, in the ensuing months, Thomas and Harper were both promoted. Not until Bradley v. Bruce was decided, over a year after the examination he now challenges, did Worth first complain about seniority.

In contrast, Danny Bradley objected in writing to the use of seniority before the examination was given. When his objections were disregarded by the North Little Rock Civil Service Commission, Bradley filed suit against the commission and the City of North Little Rock to declare that seniority was not a permissible criterion for promotion under the civil service statutes. Bradley went further, however, and enjoined the implementation of the selection process so that no one was promoted until the litigation was successfully concluded. I believe Worth’s acquiescence in the testing procedures and the promotion of Harper without objection constituted a waiver of the arguments raised months later. “Every failure to assert a legal right at the proper time is a waiver of that right.” First National Bank of Post v. Republic Supply Co., 166 S.W.2d 373 (Texas Ct.App. 1942). Waiver and estoppel are intertwined and waiver may be inferred from conduct under the circumstances. Oliver v. Vishno, 2 Conn. Cir. Ct. 119, 196 A.2d 119 (1963); Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221 (1976). A failure to object at the first opportunity is a waiver of that right. First National Bank v. Republic Supply Co.

The majority declares that the Civil Service Commission has not changed its position to its detriment based on Worth’s failure to object. I disagree. There was testimony that individuals in both the police and fire departments had recently been promoted prior to the Bradley v. Bruce decision and the trial court made a finding that a retroactive application of the decision would be disruptive to the two departments. Moreover, there was proof that if Dewayne Worth is promoted to captain it would necessitate the demotion of Wesley Harper. Yet the reversal of this case entails both the retroactive promotion of Dewayne Worth and the payment to him of a captain’s salary retroactively to the tune of $4,703.22, as of March 4, 1988. By Worth’s failure to act, the City of El Dorado will thus have paid Harper a salary to which, under the majority’s view, he is not entitled, and the city must now pay that amount, plus prejudgment interest and attorney’s fees, to Worth. 1 submit the city did rely to its detriment on Worth’s acquiescence in the use of seniority. It might be noted, too, that Worth’s claim for back salary increases by his own delay. The longer he waits to challenge seniority short of the statute of limitations, the greater his claim. Waiver is a question of fact [Aclin v. Caplener, 229 Ark. 718, 318 S.W.2d 141 (1958); 31 C.J.S. Estoppel § 162 (1964)], and the trial court decided that issue adversely to Worth, yet the majority has disregarded that finding altogether.

Finally, if there were no other reason, the case should be affirmed because of a fatal non-joinder of parties. Worth has sought relief which can only be provided by the City of El Dorado, that is, either the demotion of Wesley Harper, or the creation of a new captaincy in the fire department, and a judgment for approximately $5,000. All of these render the city and Harper indispensable parties. Certainly Harper cannot be demoted by a suit to which he was not a party, nor can the civil service commission order the creation of a new position, or order the City of El Dorado to satisfy a judgment for back salary. Only the City of El Dorado can do that. All persons whose rights might be prejudiced by a determination of a controversy must be made parties to the action. Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865 (1950); Leola Lumber Co. v. Bozarth, 91 Ark. 10, 120 S.W.2d 152 (1909); Greer v. Mid-West National Fire & Casualty Insurance Co., 434 F.2d 215 (8th Cir. 1970); Order of Railway Conductors of America v. Gorman, 133 F.2d 273 (8th Cir. 1948).

The majority concedes that Worth cannot now amend, that his victory is “one of principle only.” Then why is this case being reversed? We do not render advisory opinions. Stafford v. City of Hot Springs, 276 Ark. 446, 637 S.W.2d 553 (1982). We held in Bradley v. Bruce that seniority was not proper under the then wording of the civil service statutes and adherence to that principle does not oblige us to reverse a case that should be affirmed because necessary parties were not joined. Moreover, there is authority for the view that a failure to join an indispensable party is jurisdictional. King v. King’s County Trust Co., 323 F. Supp. 640 (E.D.N.Y. 1970); Sowell v. Sowell, 212 Ga. 351, 92 S.E.2d 524 (1956); Connolley v. Great Basin Ins. Co., 6 Ariz. App. 280, 431 P.2d 921 (1967); Dillon v. Johnson, 322 A.2d 332 (Me. 1974); Huston v. Campanini, 464 Pa. 147, 346 A.2d 258 (1973). I would affirm the trial court.

Hickman, J., joins this dissent.

Glaze, J., joins this dissent.

       Ark. Code Ann. §§ 14-51-102 et seq. (1987) [Ark. Stat. Ann. §§ 19-1601 et seq. (Repl. 1980)].

       Random House Dictionary of the English Language, 2nd Edition Unabridged.

       Act 276 of 1987.