author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    Thomas E. MALONE v. TRANS-STATES LINES, INC.
    95-1116
    926 S.W.2d 659
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      Walker Law Firm, by: R. Scott Zuerker, for appellant.

      David B. Vandergriff, for appellee.
   Donald L. Corbin, Justice.

Appellant, Thomas E. Malone, appeals the judgment of the Sebastian County Circuit Court dismissing with prejudice his complaint against appellee, Trans-States Lines, Incorporated, for retaliatory discharge under the Workers’ Compensation Law, Ark. Code Ann. §§ 11-9-101 to -1001 (Repl. 1996), and for discrimination in violation of the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to -108 (Supp. 1995). The trial court dismissed appellant’s complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. Appellant asserts two points for reversal of the order of dismissal. Resolution of these arguments requires interpretation of the two aforementioned legislative acts. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We reverse and dismiss in part and affirm as modified in part.

Appellant began employment with appellee as a truck driver in January 1990 and was first diagnosed with bilateral carpal tunnel syndrome in March 1993. He had surgery on his right hand in March 1994 and on his left hand in April 1994. Appellant was released to return to work in August 1994 with restrictions that he not load or unload his truck. Appellee refused to return appellant to work with these restrictions. A dispute arose between appellee and appellant, and appellee terminated appellant. Appellant received a full release to return to work in November 1994 with a five percent permanent physical impairment rating in each hand. Appellant filed a claim for workers’ compensation benefits relating to the carpal tunnel syndrome. In addition to the aforementioned facts, the administrative law judge found that the carpal tunnel syndrome arose out of appellant’s employment with appellee and that appellant was entitled to temporary total disability benefits for the period March 5, 1994, through August 18, 1994.

Appellant initiated the present action by filing a two-count complaint in circuit court. Count one of the complaint alleged a cause of action under the Arkansas Civil Rights Act of 1993. Specifically, appellant alleged that appellee discriminated against him in the terms and conditions of his employment on the basis of appellant’s physical disability. Count two of the complaint alleged a cause of action for retaliatory discharge based on appellant’s filing of the workers’ compensation claim.

Appellee relied on section 11-9-107 and moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state facts upon which relief can be granted. The trial court entered an order granting without explanation appellee’s motion on both grounds. This appeal followed.

Appellant asserts two points for reversal. First, he argues the trial court erred in dismissing count one of his complaint because the exclusive remedy doctrine of section 11-9-107 does not apply to a claim of discrimination based on physical disability. Second, he argues alternatively that section 11-9-107 is unconstitutional in that it bars a civil rights action pursuant to the Arkansas Civil Rights Act of 1993. Appellant correctly concedes that count two of his complaint was properly dismissed due to section 11-9-107 and this court’s decision in Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995), that section 11-9-107’s annulment of a cause of action in tort for retaliatory discharge is applicable to cases in which the date of discharge is after July 1, 1993. The administrative law judge found that appellant was discharged after July 1, 1993. Thus, in this opinion we are only concerned with count one of appellant’s complaint — the claim under the Arkansas Civil Rights Act of 1993. Because we agree with the trial court’s ruling that the complaint does not state facts upon which relief can be granted, we do not reach the merits of appellant’s arguments.

In reviewing the denial of a dismissal granted pursuant to Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in tire complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). When the trial court decides Rule 12(b)(6) motions, it must look only to the complaint. Id. This court has summarized Arkansas’ requirements for pleading facts as follows:

Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief. . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entided to relief . . .” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).

Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 639, 846 S.W.2d 176, 178 (1993).

Even when we liberally construe Malone’s complaint, it alleges only conclusions. No facts are pleaded whatsoever. By way of illustration, we point out that the complaint alleges this conclusion: “Plaintiff has a physical disability within the meaning of the Arkansas Civil Bights Act of 1993.” “Disability” is defined in the Act as “a physical or mental impairment that substantially limits a major life function[.]” Section 16-123-102(3). There is no allegation of facts to support the conclusion that appellant meets this definition of “disability.” This is but one example of the insufficiency of the complaint due to the pleading of conclusions rather than facts. There are many others.

Because the complaint states only conclusions without facts, we agree with the trial court that the complaint must be dismissed for failure to plead facts under Rule 12(b)(6). However, we cannot agree that such a dismissal is with prejudice. It is well-settled that such a dismissal is to be without prejudice so that the plaintiff may elect whether to plead further or appeal. In this case, appellant was not afforded that election because the dismissal was with prejudice. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Accordingly, we affirm the trial court’s order but modify it to reflect that the dismissal be without prejudice.

Appellant’s failure to plead sufficient facts and the lack of explanation in the trial court’s order renders any meaningful further appellate review a practical impossibility. While we are somewhat sympathetic to appellant’s contention that he has asserted two distinct causes of action based on two distinct statutes, on this limited record we cannot fully discuss the merits of appellant’s arguments for reversal of the trial court’s rulings regarding subject-matter jurisdiction. Suffice it to say that because appellant has asserted a cause of action in circuit court based in part on the Arkansas Civil Rights Act of 1993, we reverse that part of the order dismissing the complaint for lack of subject-matter jurisdiction.

That part of the order dismissing the complaint for lack of subject-matter jurisdiction is reversed and dismissed. That part of the order dismissing the complaint for failure to plead facts is affirmed as modified to be without prejudice.

Reversed and dismissed in part; affirmed as modified in part.

GLAZE, J., concurs.

Dudley, J., not participating.

Tom Glaze, Justice,

concurring. I concur. The first issue to be decided in this case is whether the Workers’ Compensation Exclusive Remedy Doctrine in Act 796 of 1993 (Ark. Code Ann. § 11-19-107 (Repl. 1996)) bars a statutory discrimination action based upon physical impairment sought under Arkansas’s Civil Rights Act (Ark. Code Ann. §§ 16-123-101, particularly -107). The trial court said yes, and I presume that is the reason it dismissed Malone’s action with prejudice. I disagree with the trial court’s decision on this legal point, but I still would dismiss without prejudice under ARCP Rule 12(b)(6) because I believe Malone’s complaint fails to allege sufficient facts to support his civil rights claim.

Concerning whether Malone’s civil rights claim in circuit court can survive the Exclusive Remedy Doctrine of the workers’ compensation law, I would point out that § 11-9-107 imposes ajine against any employer who willfully discriminates regarding the hiring or tenure of any worker on account of that worker’s claim for benefits under the chapter. Here, Malone’s complaint is not based or couched in terms of his employer’s retaliatory measure on account of Malone having sought Workers’ Compensation benefits. Instead, Malone seeks relief, alleging his employer terminated him because of his physical disability. It is also significant to me that if Malone is precluded from pursuing an action under the Arkansas Civil Rights Act, he has no real remedy. Section 11-9-107 affords only remedies that penalize the employer and avail Malone nothing. In my view, the Exclusive Remedy Doctrine in no way conflicts with or bars a properly established or alleged claim, under the Civil Rights Act.

In sum, I conclude the trial court erred in deciding it had no subject-matter jurisdiction in this cause, and while I believe the trial court therefore erred in dismissing Malone’s action with prejudice, I would dismiss Malone’s complaint because it does not contain sufficient facts to support his civil rights claim.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice.

license: Public Domain

text:
    James C. PLEDGER, Director of the Department of Finance and Administration v. MID-STATE CONSTRUCTION & MATERIALS, INC.
    95-1130
    925 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996
    [Petition for rehearing denied September 30, 1996.]

      Beth B. Carson, for appellant.

      Jack, Lyon & Jones, BA., by: Eugene G. Sayre, for appellee.
   Andree Layton Roaf, Justice.

This case involves the “isolated sale” tax exemption found in Ark. Code Ann. § 26-52-401(17). The appellee, Mid-State Construction & Materials, Inc., (“Mid-State”) challenged the assessment of gross-receipts (sales) tax on used motor vehicles and trailers it purchased in a sale of assets from another company. The appellant, Department of Finance and Administration, (“DFA”) appeals from a summary judgment awarded to Mid-State; the chancellor determined that the isolated-sale exemption applied to the sale of used vehicles by sellers who are not regularly engaged in the business of selling vehicles. We reverse the chancellor’s finding of an exemption.

In March 1993, Mid-State purchased all of the assets of a corporation also named Mid-State, which was engaged in the business of highway construction, production of asphalt and concrete, and stone quarrying. The seller corporation changed its name after the sale and dissolved; Mid-State then assumed the name of the seller and continued the same business activities using the assets acquired from the now defunct corporation. The assets purchased included furniture, fixtures, supplies, equipment, and 75 used motor vehicles and trailers. When Mid-State attempted to register tide to the motor vehicles and trailers, it was informed by DFA that sales taxes would have to be paid on the market value of these items. The other assets purchased by Mid-State in the asset sale were not taxed by DFA, pursuant to the isolated-sale tax exemption. Mid-State was assessed $80,849.00 in state and local sales taxes on the value of the motor vehicles and trailers.

In May 1993, Mid-State filed a claim for refund with DFA and asserted that the sale of the used vehicles was exempt as an isolated sale pursuant to Ark. Code Ann. § 26-52-401(17). DFA denied the refund on the basis that used vehicle sales were excluded from the isolated-sale exemption. Mid-State filed a complaint for refund in Pulaski County Chancery Court in August 1993. Both parties filed motions for summary judgment. The sole legal issue before the trial court was whether the isolated-sale exemption applied to the sale of used vehicles by sellers who are not regularly engaged in the business of selling vehicles.

Mid-State, in its motion for summary judgment, asserted that the sale of the used motor vehicles and trailers constituted an isolated sale within the meaning of § 26-52-401(17), that DFA’s administrative practice of excluding used motor vehicles from the isolated-sale exemption was an erroneous and illegal interpretation of sales tax law, that DFA had erroneously and illegally interpreted § 6 of Act 3 of 1991 and that promulgation by DFA of gross-receipts tax regulation GR-49(c) was erroneous and illegal and should be declared void.

DFA, in its motion for summary judgment and also in its response to the motion by Mid-State, contended that since 1959 the General Assembly has specifically intended that the isolated sale of used motor vehicles be subject to sales and use tax; DFA traced the history of relevant tax legislation from the 1941 Sales Tax Act forward in support of this contention. DFA further argued that a non-repealer clause in Act 3 of 1991 relied upon by Mid-State had no application to an exemption which had not existed since 1959. DFA also asserted that the General Assembly has established a statutory sales-and-use-tax scheme which addresses vehicles separately from other tangible personal property. DFA further argued that it had acted within its authority to promulgate regulation GR-49(c) to clarify this legislative intent, and to rectify certain errors which occurred in compiling the 1957 and 1959 Acts and in the codification of the Arkansas Statutes in 1987. DFA finally contended that an absurd and unconstitutional result would occur if Mid-State’s motion for summary judgment were granted, because individual instate sales of used vehicles would be exempt from sales tax while such vehicles purchased from out-of-state individuals would be taxable. DFA asserted that the complimentary nature of the sales and use tax would thus be destroyed.

In its findings of fact and conclusions of law entered on June 30, 1995, the trial court determined that there was no genuine issue as to any material fact. The trial court concluded that the General Assembly did not intend to prohibit the applicability of the isolated-sale exemption to the transfer by one corporation to another of tide to used motor vehicles and used trailers in the factual setting of a one-time asset purchase. The trial court determined that DFA had exceeded its legislative grant of rule making authority in adopting gross-receipts regulation GR-49(c). The chancellor also found that while this suit was pending, the General Assembly had enacted legislation effective February 13, 1995, which expressly provides that the benefit of the isolated-sale exemption is not available for the transfer of tide to used motor vehicles or used trailers. However, he concluded that despite language in an emergency clause to the contrary, the 1995 legislation was a change and not a clarification of existing law and should not be applied retroactively to the March 1993 purchase by Mid-State.

After granting Mid-State’s motion for summary judgment and denying DFA’s motion, the trial court entered judgment in favor of Mid-State and ordered DFA to refund the amount of state and local sales taxes paid, plus interest. The sole issue on appeal is whether, at the time of the purchase by Mid-State, gross receipts from the sale of a used vehicle by a person not in the business of selling vehicles were exempt from sales tax pursuant to the isolated-sale exemption provided in Ark. Code Ann. § 26-52-401(17).

In order to answer this question, we must outline, as did DFA, the development of the relevant law regarding both sales and use tax. In so doing, we keep in mind the following setded rules regarding summary judgment and review of tax-exemption cases. Summary judgment is a remedy that should be granted only when it is clear, as in this instance, that there is no genuine issue of material fact to be litigated. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1995). On appellate review, this court must only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leaves a material question of fact unanswered. Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.

In cases which involve a claim of tax exemption, it is well settled that a presumption exists in favor of the taxing power of the state, and a taxpayer has the burden of establishing the right to an exemption beyond a reasonable doubt. Pledger v. Baldor Int’l Inc., 309 Ark. 30, 827 S.W.2d 646 (1992). Tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. Id. In addition, this court has stated that tax-exemption cases are reviewed de novo, and the appellate court does not set aside the findings of the chancellor unless they are clearly erroneous. Id.

1941 Sales Tax Act

In 1941, the General Assembly enacted the “Arkansas Gross Receipts Act of 1941.” This was the first state sales tax, and the Act provided for a 2 percent sales tax on the gross proceeds or gross receipts from all sales of “tangible personal property.” The term “seller” was defined in the Act as “every person making a sale in an established business;” DFA has always construed “established business” as the business of selling. The Act provided for the taxes to be collected and paid to the Commissioner of Revenues by the seller, except with respect to the sale of new automobiles; instead of being collected by the automobile dealer, sales taxes on new automobiles were to be collected from the buyer at the time the automobile license was issued.

The Act further listed some 19 exemptions, including two that are relevant to this discussion. The first exempted the “gross receipts or gross proceeds derived from isolated sales not made by an established business.” This “isolated sale” exemption has remained since 1941, and can be found at Ark. Code Ann. § 26-52-401(17); this is the exemption which Mid-State is claiming for its 1993 purchase of the used vehicles and trailers. The second exempted the proceeds from the sale of “second-hand and used personal property” on which sales tax had once been paid, and also where the used property was traded in as part of the purchase price of other tangible property.

DFA asserts, and we agree, that the isolated-sale exemption had no relevance to the sale of vehicles in the 1941 legislation, because no sales tax was imposed on used vehicles, and new vehicles were sold only by dealers, who were not entided to the exemption.

Act 54 of 1945

In 1945, the General Assembly amended the 1941 Sales Tax Act to provide for the first time that used cars would be subject to the sales tax. The amendment provided that, as with new cars, the tax would not be collected by dealer, but would be paid at the time the vehicle license was issued. The 1945 act also contained two exemptions. The “registration exemption” applied to used cars which had been previously registered and taxed in Arkansas. The second exemption provided that “in no case shall the tax apply on a private sale of a used automobile where the seller is not engaged in business as a dealer.” This exemption is referred to as the “private sale exemption,” and would clearly be available to Mid-State if it were still in effect.

Use Tax Act of 1949

In 1949, the legislature enacted a compensating-use tax of two percent, to prevent “discrimination in favor of those who made purchases of personal property in this state.” Morley, Comm. of Rev. v. E.E. Barber Constr. Co., 220 Ark. 485, 248 S.W.2d 689 (1952). This Act provided a general exemption from use tax for property specifically exempted from sales taxes. Thus, the private sale and registration exemption from the 1945 Sales Tax Act would apply to also exempt from the use tax used vehicles bought from out-of-state sellers. This legislation made no change in the sales-tax exemptions.

Act 19 of 1957

The only purpose of the 1957 Act was to increase the sales and use tax rate from two to three percent. This legislation made no substantive changes in either the sales or use tax statutes, however, the Act contained the following provision:

Nothing in this Act shall be construed to repeal any exemption from the Arkansas Gross Receipts Act of 1941 or the Arkansas-Compensation Tax Act of 1949.

The private-sale exemption would thus still be available for a sale of a used vehicle by a non-dealer, after 1957.

Act 260 of 1959

In 1959, the General Assembly amended the Gross Receipts statute to delete the exemption for the private sale of used vehicles. The registration exemption remained. The Use Tax statute was correspondingly amended to reflect the deletion of the private-sale exemption:

Used Cars. All used cars shall, upon being registered in this state for the first time, be subject to the tax levied herein irrespective of whether such car was purchased from a dealer or an individual.

(Emphasis added.)

In § 3 of Act 260, the. intent of the legislature is stated, and is clear and unequivocal:

It is the intent and purpose of this Act to require that either the Arkansas Gross Receipts Tax levied by Act 386 of 1941, as amended, or the Compensating Tax levied by Act 487 of 1949, as amended, be paid upon every used car, excepting those cars upon which either the Arkansas Gross Receipts Tax or the Arkansas Compensating Tax has once been paid as evidenced by previous registration in this State, irrespective of whether such car was purchased from a dealer or from an individual.

DFA contends, and we agree, that as a result of the 1959 Act, all sales of used vehicles became taxable, and only the registration exemption remained. The primary rule in construing legislation is to ascertain and give effect to the intent of the legislature, and when the intent is clear, there is no room for other interpretation or construction. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In this instance, the General Assembly specifically and clearly provided that the private sales of used automobiles would be exempt from sales tax in 1945. The legislature just as clearly repealed this exemption by amending the sales and use tax statutes in 1959. Moreover, it is a rule of statutory construction that when a special act applies to a particular case, it excludes the operation of a general act. Ballheimer v. Service Finance Corp., 292 Ark. 92, 728 S.W.2d 178 (1987). Thus, the general isolated-sale exemption has never been applicable to the sale of used vehicles because the legislature included the private-sale exemption, which applied specifically to used vehicles, in the same Act which first imposed a sales tax on such vehicles.

Codification Errors

DFA argues that Mid-State has based its claim of exemption in part upon certain codification errors involving the 1957 and 1959 Acts. Section 3 of act 260 of 1959, which clearly expressed the legislative intent that either sales or use tax be paid upon every used car except those previously registered and taxed in Arkansas, was never compiled, in either the sales or use tax statues. This statement of intent was included in the compiler’s notes to the Use Tax statute, but was omitted from the notes to the sales tax section. See Ark. Stat. Ann. § 84-3105 and § 84-1903. Section 3 of Act 260 was also picked up by the codifier and included only in the use-tax section of the code as Ark. Code Ann. § 26-53-126(e)(l). Thus, although the private-sale exemption was deleted from the sales-tax statutes by the 1959 Act, this exemption was simply removed from the statute by the compiler; the language expressing the clear intent of the legislature that all used car sales be subject to sales or use tax except those entitled to the registration exemption was not included anywhere in the sales-tax statutes or in the subsequent sales-tax code provisions.

Mid-State also bases its claim for exemption upon the nonrepealer statement included in the 1957 Act which simply raised the tax rates from 2 to 3 percent. This statement was not included in the Arkansas Statutes but was picked up by the codifiers of the 1987 Code, and included as a new subsection of the sales and use tax provisions. See Ark. Code Ann. § 26-52-510(d) and § 26-53-126(f). This provision states that “nothing in this section shall be construed to repeal any exemption from the Arkansas Gross Receipt Act § 26-52-101, et seq.” DFA argues that the provision is extraneous, if not erroneous. Mid-State claims that this is evidence of the legislature’s intent that the isolated-sale exemption for 1941 not be repealed with regard to the sales of used vehicles. We agree that the inclusion of the non-repealer section from the 1957 Act, which only raised the tax rates, can in no way support a claim of exemption which was specifically and clearly repealed by the legislature in 1959. The legislature also anticipated that such errors would occur when the Arkansas Statutes were codified in 1987. Arkansas Code Annotated § 1-2-103 (Repl. 1996), provides that all acts, codes, and statutes in effect on December 31, 1987 are repealed by the 1987 Arkansas Code unless:

(1) Expressly continued by specific provision of this Code;
(2) Omitted improperly or erroneously as a consequence of compilation, revision, or both, of the laws enacted prior to this Code, including without limitation any omissions that may have occurred during the compilations, revision, or both, of the laws comprising this Code; or
(3) Omitted, changed, or modified by the Arkansas Code Revision Commission, or its predecessors, in a manner not authorized by the laws or the constitutions of Arkansas in effect at the time of the omission, change, or modification.
(b) In the event one of the above exceptions should be applicable, the law as it existed on December 31, 1987, shall continue to be valid, effective, and controlling.

(Emphasis added.)

Act 3 of 1991

In 1991, the registration exemption was repealed. A nonrepealer statement was included in this act.

Again, the non-repealer statement included in this legislation could not serve to resurrect an exemption which the legislature had clearly and specifically repealed thirty-two years before the 1991 Act.

Act 268 of 1995

The legislature amended both the sales and use tax statutes in 1995 to provide: “The exemption provided for in § 26-52-401 for isolated sales shall not apply to the sale of motor vehicles, trailers and semitrailers.” The emergency clause contained in the Act stated:

It is hereby found . . . that current law disallows the isolated sales exemption to a purchase of a motor vehicle or trailer; [the sales and use tax] provisions are in need of clarification to ensure the original legislative intent is fulfilled; and that Sections 6 and 7 of the Act should be effective immediately to prevent possible confusion among the taxpayers of the state.

The trial court determined that this amendment was a remedy available to the legislature at any time it saw the need to remove confusion in the existing statutes, and therefore could not serve to retroactively state the legislative intent of prior legislative sessions. We do not agree that Act 268 of 1995 is an attempt by the legislature to retroactively change existing law.

We have stated that the amendment of an act does not control the interpretation of another statute enacted prior to the amendment, nor does it change the meaning which the original statute acquired prior to the amendment. Peterson Produce Co. v. Cheney, Commr., 237 Ark. 600, 374 S.W.2d 809 (1964). Further, the legislature can prospectively change the tax laws of this state, within constitutional limitations, but it does not have the power or authority to retrospectively abrogate judicial pronouncements of the courts of this State by a legislative interpretation of the law. Federal Express Corp. v. Skelton, 265 Ark. 187, 578 S.W.2d 1 (1979). However, we can look to changes to statutes made by subsequent amendments to determine legislative intent. State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995). In Baldor Int’l Inc., supra, we stated that the General Assembly, in enacting a 1985 Act, did not change the prior law but merely intended to clarify it and, therefore, the chancellor did not err in considering the subsequent act. We conclude that here, the legislature has merely clarified the law as it has existed since 1959.

We hold that it has been the clear intent of the General Assembly since 1959 that the private sale of used motor vehicles be subject to the sales tax, and that the general isolated-sales exemption has no application to such sales. We conclude that Mid-State did not meet its burden of establishing the right to this exemption beyond a reasonable doubt. The trial court in this instance erred in granting summary judgment to Mid-State, and should have granted DFA’s motion for summary judgment.

Because we hold that the legislature did not intend that the isolated-sale exemption be applied to the private sale of used vehicles, we need not consider whether DFA acted within its authority in promulgating regulation GR-49(c) or whether an unconstitutional and absurd result would occur if Mid-State is determined to be entitled to this exemption.

Reversed and remanded.

DUDLEY, J., not participating.


author: ANDREE LAYTON Roaf, Justice.

text:
    J. Michael STOLTZ, as Special Administrator of the Estate of James Patrick Stoltz, Deceased v. Nancy Elizabeth FRIDAY, et al.
    94-1235
    926 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996
    [Petition for rehearing denied September 9, 1996.]

      Davidson Law Firm, Ltd., by: Charles Darwin Davidson and Charles Phillip Boyd, Jr., for appellant.

      Huckabay, Munson, Rowlett & Tilley, PA., by: Mike Huckabay and Beverly A. Rowlett, for appellees.

      Special Chiefjustice Henry Wilkinson and Special Justices John Elrod, Sidney McCollum, and Henry Wilson join. Jesson, C.J., and Dudley, Glaze, Corbin, and Brown, JJ., not participating.

   ANDREE LAYTON Roaf, Justice.

The appellant, J. Michael Stoltz, as special administrator, sued the appellees, Friday, Eldredge, & Clark, certain of its partners, and First Commercial Bank, for negligence and breach of fiduciary duty in connection with the probate of the estate of James Patrick Stoltz. The Friday firm provided legal services in connection with the probate of the estate; the bank was designated trustee of a trust created under the will of the decedent. The trial court entered summary judgment in favor of Friday, Eldredge, & Clark and the individual attorneys and granted First Commercial Bank’s motion to dismiss. In this appeal, the special administrator contends that the trial court erred in granting the motions for summary judgment and dismissal and in granting the Friday firm’s motion to strike an amended complaint. We find no error and affirm.

J.P. Stoltz (Stoltz) died on December 18, 1977, at the age of 53. His will was prepared by the Friday firm and was executed on May 9, 1977. Stoltz’s heirs were his wife, Judy, whom he married in 1974 after the execution of an antenuptial agreement prepared by the Friday firm, nine children from a previous marriage, and two sisters and their husbands. J. Stephen Stoltz (Stephen), the oldest son, was named executor in the will.

The primary asset of the estate was Polyvend, Inc., a metal-stamping company established by Stoltz. Additionally, in 1976, Stoltz had obtained two life insurance policies with a face value of $2,000,000 from First Pyramid Life Insurance Company (First Pyramid). Stoltz’s will provided that after certain specific bequests, the majority of his estate would be placed in two trusts. The stock of Polyvend was to be placed in a “stock trust” of which Stephen was the sole beneficiary and trustee. The corpus of this trust, Polyvend, was to be distributed to Stephen if he was successful in operating the company for ten years. The remaining estate assets were to be placed in a “residuary trust” for the benefit of the other eight Stoltz children and other named trust beneficiaries. The residuary trust would also receive one half of the proceeds from any sale of Polyvend if it were sold within ten years of the establishment of the stock trust. The will named First Commercial Bank (First Commercial) as trustee of the residuary trust.

Stoltz’s will was filed for probate on January 4, 1978. Stephen was appointed as executor, and the Friday firm served as his attorneys. Stephen applied for and received the $2,000,000 in fife insurance proceeds in his individual capacity on January 19, 1978.

In 1987, certain of the residuary trust beneficiaries, including J. Michael Stoltz (Michael), became concerned about the lack of progress being made in the probate of the estate and the fact that no distributions had been made to them in nearly ten years. They hired an attorney who filed a petition in September 1987 seeking to remove Stephen as executor of the estate. In connection with the prosecution of this petition, the heirs obtained copies of the estate files being maintained by the Friday firm and discovered, among other matters, that the estate had a potential claim to the life insurance proceeds paid in 1978 to Stephen and that the Friday firm had advised Stephen upon his appointment in January 1978 about potential conflicts of interest involved in his service as executor of the estate. In June 1988, the Friday firm was replaced as attorneys for the estate; however, Stephen continued to serve as executor.

A number of lawsuits have been filed in connection with the handling of this estate. Three are relevant to this appeal. In October 1988, six of the residuary trust beneficiaries, including Michael, filed suit in Faulkner County Chancery Court against Stephen, alleging that he breached his fiduciary duty to them while serving as executor of the estate and acting as trustee of the residuary trust created for their benefit. That action was concluded in June 1993 with the execution of a setdement agreement which released Stephen from liability both individually and as executor of the estate. On April 20, 1989, some of the same residuary trust beneficiaries filed suit in Pulaski County Circuit Court against First Pyramid for negligence, breach of contract, bad faith, and fraudulent concealment in connection with the payment of the $2,000,000 in insurance benefits to Stephen, rather than to the estate. Michael was appointed special administrator on January 30, 1990, for the limited purpose of pursuing this action against First Pyramid, and he was substituted as plaintiff. The jury award to the special administrator of $3,666,666 was reversed on appeal, based on the running of the statute of limitations on an action to recover on a life insurance policy. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S. Ct. 290 (1992). While the case against First Pyramid was pending, the Friday firm attorneys agreed to allow the statute of limitations to be tolled against them as of January 9, 1990, in a tolling agreement signed on behalf of Michael, both individually and as special administrator, and other of the trust beneficiaries.

On May 3, 1993, Michael, as special administrator, filed the action against the Friday firm which gives rise to the present appeal. His complaint asserted that the Friday firm and certain of its partners served as attorneys for the estate until June 30, 1988, and that they breached their fiduciary obligation to the estate, the heirs, and the trustees of the trusts created by the will of the deceased when they jointly represented entities with conflicting interests for a period of approximately ten years. These entities included Stephen, both in his individual capacity and as executor of the estate; First National Bank of Little Rock, both as the largest creditor of the estate and as the trustee of a trust created by the will of the decedent; First Pyramid; Polyvend Corporation, the largest asset of the estate; and Diversified Financial Services, Inc., the insurance agency which sold the First Pyramid life insurance policies to Stoltz.

The special administrator further contended that the estate suffered damages and loss of assets as a result of the undisclosed conflicts and the actions of the Friday firm, including: (a) the wrongful payment of $2,000,000 in life insurance proceeds to Stephen, (b) an over payment to the surviving spouse, despite a binding antenuptial agreement drafted by the Friday firm to prevent Stephen’s removal as executor, (c) the making of personal loans to pay the estate’s debts by heirs of the estate in order to avoid an otherwise necessary sale of Polyvend, which would have benefited the residuary trust heirs, (d) transactions which avoided funding the stock trust as directed by the will, but which artificially commenced the running of the ten-year term of the stock trust to the benefit of Stephen, (e) repayment of voluntary personal loans to the executor with virtually all of the residuary assets of the estate, and (f) the transferring of assets other than Polyvend stock to the stock trust.

The Friday firm defendants filed a motion for summary judgment, asserting that: (a) the plaintiff had no cause of action against the defendants because of the absence of contractual privity, (b) the release of Stephen, individually and as executor of the estate, in connection with the Faulkner County Chancery Court action constituted a release of the defendants, (c) the plaintiff’s action was barred by the statute of limitations, and (d) the plaintiff’s action was barred because he failed to file suit on or before May 1, 1993, the date specified in the tolling agreement.

First Commercial was added as a defendant by an amended complaint filed on December 29, 1993. First Commercial filed a motion to dismiss and asserted that any claim against it was barred by the statute of limitations. The bank also contended that the special administrator lacked standing to bring an action against it because the estate was not a beneficiary of the residuary trust.

In granting the Friday firm’s motion for summary judgment, the trial court found that: (1) no privity existed between the plaintiff and the defendants justifying a claim of breach of duty, the defendants, as attorneys for the estate, owed no fiduciary duty to the heirs and beneficiaries in the absence of fraud and misrepresentation, and no allegations of fraud on the part of the defendants had been made; (2) the release of Stephen in the Faulkner County lawsuit filed by the individual trust beneficiaries also specifically released his agents and employees and therefore served as a release of the Friday firm as his attorneys; and (3) the statute of limitations barred the action.

The trial court granted First Commercial’s motion to dismiss, finding that the bank had repudiated the trust, and that, in any event, the statute of limitations had also run on the plaintiff’s complaint against the bank.

Before we consider the merits of Michael’s arguments, we first note that in reaching its decision, the trial court seemed to confuse the fact that the special administrator of the estate filed this action, not the individual heirs and trust beneficiaries. There is only one plaintiff in this case, as pointed out to the trial court by the special administrator in a motion for reconsideration. That plaintiff is J. Michael Stoltz, as special administrator of the estate. The residuary trust beneficiaries are not parties to this action. The personal representative, in his complaint, prayed for damages which he suffered. Consequently, we do not consider the allegations concerning damages suffered by trust beneficiaries or heirs of the estate to be relevant, or to provide a basis for preventing summary judgment. Only two of the plaintiff’s allegations pertain to the harm suffered by the estate and not the individual beneficiaries — the loss to the estate of the $2,000,000 in insurance benefits and the overpayment to the surviving spouse. The estate has not been damaged by the actions which in effect resulted in estate assets being placed in one trust rather than the other.

1. Summary judgment

The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. In this case, even assuming the facts alleged in the complaint are true, the Friday firm is entided to summary judgment as a matter of law on all of the claims properly advanced by Michael as special administrator of the estate.

We agree that the statute of limitations bars the action against the Friday firm and its attorneys. The applicable statute of limitations for legal malpractice is the three-year period provided in Ark. Code Ann. § 16-56-105 (1987). Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993). Further, the statute of limitations for fraud and breach of fiduciary duty actions is also three years. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Ark. Code Ann. § 16-56-105 (1987). In Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), this court stated that it has been the rule since 1877 that the statute of limitations applicable to malpractice actions begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered. See also Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989). In Chapman, we noted that one “current trend” in such actions is the “termination of employment” rule, which provides that the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended. However, we concluded that our traditional rule has a countervailing fairness about it, and elected to maintain it.

In his letter opinion, the trial court found that the statute of limitations had run for three reasons. He first concluded that Michael signed the tolling agreements prior to his appointment in 1993 as special administrator for the purpose of suing the Friday firm, and the agreement was therefore of no effect. The trial court further found that because the attorney who primarily dealt with the estate withdrew from the Friday firm before the signing of the last tolling agreement, the agreement was not effective as to him, and that any derivative action against the other members of the firm would also be barred. The trial court finally concluded that the action was barred by the general running of the statute because only one of the acts complained of by the plaintiff occurred within three years of the effective date of the tolling agreements, and this act, a transfer of assets to the stock trust in February 1988, occurred at a time that the plaintiff was represented by counsel. He concluded that any fiduciary duty owed by the Friday firm terminated when the plaintiff employed counsel.

Michael argues that the action is not barred by the statue of limitations for several reasons. He contends that the Friday firm is estopped from asserting the limitations as a defense because of their fiduciary obligations to the estate beneficiaries. He further asserts that the last element essential to his cause of action did not occur until either the discharge of the Friday firm in June 1988 or until the estate was later closed and the executor discharged, and his action would be timely under either alternative. He analogizes the Friday firm’s continued representation of the estate and its alleged repetitive tortious conduct to the “continuous treatment” doctrine of medical negligence cases. He finally contends that the limitations period as to the life insurance proceeds was tolled while the verdict in the action against First Pyramid was on appeal to the Supreme Court.

We do not agree that we should depart from the holding of Chapman and its predecessors simply because the acts complained of by Michael occurred during the probate of an estate. The probate of an estate can last for a number of years. Here, the acts complained of concern very separate and distinct transactions which occurred over the course of ten years. We can readily distinguish the probate of an estate from the holding in Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993), where we determined that the statute of limitations did not commence until the date of the last act performed by an attorney in a business reorganization which took several months to complete. In Wright, we said that to require a plaintiff to bring suit against an attorney before a lengthy transaction is completed could deny the attorney the chance to effectuate the proper result. Clearly, the probate of an estate does not involve a single transaction. Based on our holding in Chapman, even if the tolling agreements are effective, the general statute of limitations has run as to all claims asserted by Michael except one. The trial court found, and it is undisputed, that the transfer of Stocco stock to the stock trust in February 1988 was the only alleged negligent act occurring within three years of January 9, 1990, the effective date of the first tolling agreement. Michael does not contest this finding; he in essence argues against the application of our traditional limitations rule and asks that we adopt an alternative to the traditional rule; we decline to do so.

The insurance proceeds were paid to Stephen in January of 1978. The settlement with the widow of Stoltz was entered into in September 1978. All other acts Michael complains of except the transfer of Stocco stock occurred prior to January 9, 1987. The three-year statute of limitations had thus run as to all of these claims before the effective date of the tolling agreements.

As to the transfer of the Stocco stock from the estate to the stock trust, the trial court determined that this occurred within three years of the first tolling agreement. However, he determined that the statute of limitations had run on this claim because the tolling agreements were of no effect; he also concluded that the Friday firm had no duty to beneficiaries of the estate.

The substance of this claim is as follows. Michael asserts that a substantial portion of Polyvend stock was placed in Stocco, Inc., a company created for the purpose of holding the Polyvend stock. He contends that the Polyvend stock was pledged as collateral for a $1.5 million debt owed to First Commercial and that the transfer of Polyvend stock to the holding company allowed the estate to appear solvent and thus facilitated the transfer of Polyvend to the stock trust, to the benefit of Stephen, prior to closing of the estate. Michael asserts in his complaint that the transfer of Stocco stock to the stock trust occurred after the petition to remove Stephen as executor had been filed and without notice to either the probate court or the trust beneficiaries. Again, Michael Stoltz represents only the estate, not the heirs or trust beneficiaries. He has not demonstrated any injury to the estate resulting from the transfer of Polyvend (Stocco) stock to the stock trust. The dispute over the running of the statute of limitations is thus irrelevant with respect to this claim.

Because we determine that the trial court was correct in holding that the statute of limitations barred the action against the defendants, we do not reach the issues raised by Michael regarding privity and the duty owed by the attorneys for the executor to the estate and its beneficiaries, or regarding the effectiveness of the tolling agreements and the release of Stephen executed by the individual trust beneficiaries.

2. Amended Complaint

Michael also contends that the trial court erred by granting the Friday firm’s motion to strike the amended complaint filed on February 25, 1994. On February 15, 1994, the trial court entered an order directing that the plaintiff file a more definite and certain amended complaint and directing that the complaint specifically set out the acts or omissions of certain defendants. On February 25, 1994, the plaintiff filed an amended complaint in response to this order. Subsequently, the defendants, other than First National Bank, moved to strike the complaint.

The defendants asserted that the amended complaint went beyond the trial court’s order and should be stricken, because it attempted to change the plaintiff’s theory of recovery to the prejudice of the defendants in view of the pending motion for summary judgment. They contended that the plaintiff’s original complaint did not sufficiently plead fraud and that the word fraud was used for the first time in this amended complaint. The trial court granted the motion, noting that in view of its order granting summary judgment, its order directing the plaintiff to file a more definite complaint was withdrawn.

Michael submits on appeal that a party may amend its pleading at any time. Ark. R. Civ. P. 15(a). Rule of Civil Procedure 15(a) provides in part:

With the exception of pleading the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.

Michael does not argue that the trial court abused its discretion in striking the amended complaint; his argument simply ignores all but the first sentence of the rule. However, Rule 15(a) clearly contemplates that the opposing party may object and the court may strike the amended pleading. Further, the trial court is vested with broad discretion in allowing or denying amendments to pleadings. Cawood v. Smith, 310 Ark. 619, 839 S.W.2d 208 (1992). Here, the amendment was filed nearly one year after the original complaint was filed, and it was filed while the Friday firm’s motion for summary judgment was pending. The trial court’s ruling on the motion for summary judgment would also be dispositive of the claims asserted in the amended complaint, and we cannot say that the trial court abused its discretion in striking this pleading.

3. Motion to dismiss

For his final point, Michael argues that the trial court erred in granting the motion to dismiss filed by First Commercial. The trial court stated in a letter opinion that the motion was granted because the trust had been repudiated and, in any event, the statute of limitations had run on the plaintiff’s complaint.

On appeal, Michael contends that a bank officer stated in a deposition that the bank occupied a trustee relationship with the Stoltz children in January 1990. He also asserts that as special administrator, he had standing to pursue this cause of action against the bank on behalf of the trust beneficiaries. However, he does not explain how being in a fiduciary relationship with beneficiaries in another trust affects the bank’s repudiation.

In a separate declaratory-judgment action regarding the administration of the estate, First Commercial was named a defendant. The beneficiaries of the trust in question were either plaintiffs or defendants in that case. In its answer served in October 1988, First Commercial stated that it was named as trustee of the residuary trust, but that it had never been contacted to serve in such capacity. First Commercial stated that it had never accepted the role of trustee and would decline to serve if so requested. Michael simply does not dispute that the beneficiaries had notice of the bank’s repudiation of the trust. First Commercial was sued more than five years after the October 1988 answer, by amended complaint filed on December 29, 1993. Further, Michael and other trust beneficiaries asserted that Stephen, rather than First Commercial, had acted as trustee of the residuary trust in the action they filed against Stephen in Faulkner County Chancery Court in October 1988. Clearly, the statute of limitations has run as to any action against First Commercial in this instance.

Moreover, we again note that the trust beneficiaries are not parties to this action, and the estate was in no way damaged by the inaction of the bank. Only the individual beneficiaries of the trust could claim damages resulting from the mismanagement of trust funds or the breach of the trustee’s fiduciary duty.

Affirmed.

Special Chief Justice Henry Wilkinson and Special Justices John Elrod, Sidney McCollum, and Henry Wilson join in this opinion.

Jesson, C.J., Dudley, Glaze, Corbin, and Brown, J.J. not participating.


author: Per Curiam.

text:
    Michael BRANCH v. STATE of Arkansas
    CR 96-737
    925 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      J.F. Atkinson, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Michael Branch, by his attorney, has filed for a rule on the clerk.

His attorney J. E Atkinson, Jr., admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.

DUDLEY, J., not participating.


author: Per CURIAM.

text:
    Ricky DAFFRON v. STATE of Arkansas
    CR 96-14
    926 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      James Law Firm, by: William Owen James, Jr., and Kelli S. Cashion, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per CURIAM.

Appellant Ricky Daffron, through his counsel, seeks permission to file a supplemental abstract and substituted brief in connection with his appeal of the denial of a Rule 37 petition. The State asks that we deny Daffron’s motion because counsel for the State pointed out in its brief that Daffron failed to abstract the order denying his Rule 37 petition and argued that the case should be affirmed on this basis.

The State acknowledges that in Wilson v. State, 306 Ark. 179, 810 S.W.2d 337 (1991), this court permitted appellant’s counsel to file a supplemental abstract and brief in a Rule 37 appeal, under identical circumstances. However, the State asks that we adopt the rationale of Jones v. McCool, 318 Ark. 688, 886 S.W.2d 633 (1994), in which we turned down a pro se appellant’s request to file a supplemental abstract and brief in order to cure an abstract deficiency. Jones had failed to include an abstract of any part of the record in his brief. In the Jones per curiam opinion we said:

Nearly a month after the appellee State filed its brief, appellant filed a motion seeking to amend the brief to include an abstract. The motion is denied. Once the appellee has filed its brief, it is too late to file a motion to amend the appellant's brief.

(Emphasis supplied.) No authority is given in Jones for this declaration, perhaps because none exists under either our present Rule 4-2 (b)(2), the former Rule 9(e)(2), or the cases which have interpreted those rules in this context.

The rationale of Jones seems to be that a pro se appellant should not be afforded the same opportunity to correct a deficient abstract as is an appellant represented by counsel. We said as much, unfortunately, in Wilson, supra, where we granted counsel’s motion to supplement abstract, but added the following caveat:

If appellant had been proceeding pro se and had submitted a deficient abstract, we would not hesitate to affirm pursuant to our Rule 9 since a litigant who elects to proceed pro se is required to conform to the rules of procedure. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). Where the error was made by appointed counsel, however, we will permit the abstract to be supplemented.

Pro se litigants are of course required to conform to the rules of procedure. However, Rule 4-2(b)(2) provides:

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct.

(Emphasis supplied.)

This rule clearly contemplates the filing of a substituted brief by an appellant after an appellee’s brief has been filed, even when, as in the present case, the appellee has called attention to the abstract deficiency in its brief. The rule further provides that the appellee be afforded the opportunity to revise or supplement its brief at the expense of the appellant or the appellant’s counsel. We routinely grant an appellant’s request to file a substituted brief when a case is not ready for submission. Dixon Ticonderoga Co. v. Winburn Tile Mfg., 322 Ark. 817, 911 S.W.2d 955 (1995). Of course, this court has the discretion to deny a request to file a substituted brief if an unreasonable or unjust delay in the disposition of the appeal will result or if it is not unduly harsh to affirm the case without reaching the merits of the appellant’s argument. This is a far cry from the bald assertion in Jones that it “is too late to file a motion to amend” after the appellee’s brief has been filed.

The State also contends that the opinion in Jones is consistent with our holdings that an appellant may not supplement an abstract in a reply brief. See Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993). However, Rule 4-1 (b) provides that an appellant’s reply brief “shall not include any supplemental abstract unless permitted by the court upon motion.” (Emphasis supplied.) Further, in Harris, we noted that Harris requested in his reply brief that he be permitted to .supplement his abstract but that his request “was without a prior timely motion, and as a matter of course, would not (and did not) come to the court’s attention until after this case was submitted to the court for decision.” (Emphasis supplied.)

The State argues that it is unfair to allow an appellant to supplement his abstract after the appellee has pointed out the deficiencies in the form of a meritorious procedural argument in its brief, and that this practice should be stopped. This is in effect an argument for a substantial change in our Rules 4-1 and 4-2.

However, Daffron has filed a motion to supplement abstract and file substituted brief pursuant to our present Rule 4-2(b)(2). As his case has not yet been submitted to this court for decision, his motion is timely filed and is granted.

Dudley, J., not participating.


author: Tom GLAZE, Justice,

text:
    Timothy G. EVANS v. STATE of Arkansas
    CR 96-649
    925 S.W.2d 428
    Supreme Court of Arkansas
    Per Curiam Opinion delivered July 15, 1996
    Concurring Opinion delivered July 15, 1996
   Tom GLAZE, Justice,

concurring. To my recollection, this court has never allowed appointed counsel to withdraw because the defendant filed some type of complaint against counsel either in another court or with the Professional Conduct Committee. Obviously, to permit withdrawals in these circumstances fosters the filing of frivolous complaints against attorneys that will result in delays in direct appeals. Defendants have postconviction remedies available for serious complaints concerning an attorney’s ineffectiveness. We should not start authorizing such counsel withdrawals, especially, as here, where the defendant has filed a civil action, alleging grounds having no merit for disqualifying counsel from representing defendant in the direct appeal. If the court granted this withdrawal, it could expect many more such motions in the future, and the court would be obliged to grant them. That would be a mistake.

For the foregoing reasons, I would deny counsel’s motion.

NEWBERN and ROAF, JJ., join this concurrence.


author: PER CURIAM.

text:
    Scotty Ray GARDNER v. Honorable Russell ROGERS
    CR 96-777
    926 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      Dennis R. Molock, for petitioner.
    No response.
   PER CURIAM.

Scotty Ray Gardner seeks a writ of prohibition ordering the Circuit Court of Arkansas County to discharge him from custody and to refrain from conducting any proceedings concerning his case. Mr. Gardner’s failure to demonstrate the Circuit Court’s lack of jurisdiction precludes the issuance of the writ.

On October 23, 1991, Mr. Gardner pleaded guilty to two counts of criminal attempt to commit first-degree murder. He was sentenced to thirty years’ imprisonment on each charge. The sentences were ordered to run consecutively, and seven years of each sentence were suspended.

Mr. Gardner sought a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. On January 9, 1996, an order was entered by that Court which stated in part:

Accordingly, it is hereby ordered that petitioner be brought before the State trial court within thirty (30) days of this order for arraignment and at that time be given an opportunity to enter his pleas to the charges against him. If he pleads not guilty to either or both of said Counts, the State will commence the trial on said charge or charges within one-hundred twenty (120) days of the entry of said not-guilty plea or pleas. * * * if the State fails ... to commence any trial of Petitioner occasioned by his not guilty plea or pleas within one-hundred twenty (120) days after the entry of said plea or pleas, the writ of habeas corpus shall issue and said petitioner will thereupon be forthwith released from custody and discharged from the pending charges.

According to Mr. Gardner’s petition he pleaded not guilty to both counts on January 22, 1996. His petition mentions that he requested a continuance but that the time should not have been charged against him as it resulted from his having been transferred to a prison facility in Texas, thus hampering his ability to prepare for trial. He does not state the duration of the continuance, nor does he indicate that he has sought relief from the Circuit Court in which he is to be tried. He claims solely that, due to the expiration of more than 120 days from the date of the guilty pleas, this Court should prohibit the Circuit Court from trying him.

A petitioner seeking a writ of prohibition in this Court must produce a record sufficient to show the writ is clearly warranted. Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994); Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). Our law is well established that prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, but is issued only when it is proposing to act in excess of its jurisdiction. Davis v. State, supra. See, e.g., Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993). A writ of prohibition is an extraordinary remedy which issues only when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994).

Mr. Gardner has not produced a record showing that the Trial Court lacks jurisdiction over him, or the crime with which he is charged.

Petition denied.


text:
    Larry JOHNSON v. STATE of Arkansas
    CR 96-748
    925 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      Jeffery H. Kearney, for appellant.
    No response.
   Per Curiam.

Petitioner, Larry Johnson, by his attorney, Jeffery H. Kearney, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

Dudley, J., not participating.


text:
    Raymond C. McCREADY v. STATE of Arkansas
    CR 96-763
    924 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered July 15, 1996

      Alvin Schay, for appellant.
    No response.
   PER CURIAM.

Appellant, Raymond C. McCready, by his attorney, Alvin Schay, has filed a motion for a rule on the clerk. Appellant filed a timely notice of appeal from the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. His attorney admits by motion that the record of the postconviction proceedings was tendered late due to a mistake on his part.

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Jessie Earl HILL v. STATE of Arkansas
    CR 96-270
    931 S.W.2d 64
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Norman Mark Klappenbach, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Jessie Earl Hill was convicted of capital murder and sentenced to life without parole. There is no merit in any of his nine arguments for reversal, which we discuss in four groupings.

Hill, aged nineteen, was a suspect in a crime committed in Camden and discussed leaving Arkansas with his friend, Demarcus Tatum, aged eighteen. On the afternoon of January 17, 1995, Hill and Tatum went to Donny Ray Moss’s house where they asked Donald Thrower if they could borrow his 1990 Nissan Maxima automobile. Thrower refused to let them borrow his car, but agreed to let his cousin, Arbrady Moss, drive them to the bus station in Camden. Hill, Tatum, and Moss got into the Nissan. After going only a short distance Hill told Moss he wanted the car. Moss refused. Hill struck Moss in the head with a marble rolling pin. Moss pleaded with Hill to stop, but he continued. Moss fell into a roadside ditch. Hill and Tatum took the Nissan and left but, after going only a short distance, decided to return and get Moss. Moss was still alive and begged for help. Hill put Moss in the trunk of the car.

Hill and Tatum got back inside the car. By this time, they had decided to go to a friend’s house in Cedar Rapids, Iowa. Tatum drove until they reached Cohen Trail in Grant County, where they stopped to dispose of Moss’s body. Tatum opened the trunk and found Moss still alive. Hill lifted Moss out of the trunk and beat him with a juice bottle. They left Moss on Cohen Trail and continued their flight to Cedar Rapids.

The Nissan broke down near Adair, Oklahoma, and Hill and Tatum had it towed to Osborn’s Garage in Adair, where they sold it for $150.00. When questioned at the garage about blood that was in the trunk, Tatum said it came from a deer. Hill and Tatum used the last of the proceeds from the sale of the car to buy bus tickets to Kansas City. Upon arriving in Kansas City, they had no money and no transportation, so they decided to steal a car in order to continue their journey to Cedar Rapids. They saw a woman near her car in a parking garage, grabbed her, stabbed her, and took her purse and car keys. When a security guard came on the scene, they ran back to the bus station, where they were apprehended.

Tatum, an accomplice, confessed to the above. Donny Ray Moss testified that he was present on January 17, when Hill and Tatum attempted to borrow Donald Thrower’s Nissan automobile, and that he saw Hill and Tatum leave his house in Camden with Arbrady Moss, the victim, driving the Nissan. Bob Adams, the Sheriff of Grant County, testified that Moss’s corpse was found on Cohen Trail on January 19, 1995, two days after Moss was last seen in Camden in the Nissan. Underneath the corpse were pieces of broken glass that were identical to broken glass later found in the trunk of the Nissan. A fruit jar was found seven feet from Moss’s corpse. A tooth was found in the trunk of the Nissan that matched the tooth missing from Moss’s jaw. A rolling pin with hair and a dried blood-like substance was found in the car trunk. A considerable amount of dried blood was found in the trunk. Dr. Charles Kokes, a pathologist, observed fifteen individual lacerations to the victim’s head and gave his expert opinion that Moss died from multiple blunt blows to the head. He further testified that the victim had been struck in the jaw area with a blow or blows that had loosened his teeth. In sum, the accomplice, Tatum, testified that Hill committed capital murder, and his testimony was corroborated.

I.

By pretrial motion Hill asked the trial judge to exclude evidence of an earlier murder in Camden with which he was charged and to exclude all evidence of the offenses he committed in Kansas City. No evidence of the earlier murder in Camden was introduced, and we need not further discuss that part of the motion. In the part of the motion material to this appeal, Hill moved to have evidence of the offenses in Kansas City excluded because those offenses occurred after the capital murder charged in this case; they were not relevant to this case; and, even if relevant, the probative value was substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 401, 402 & 403. The trial judge refused to rule until the context of the evidence was shown and commented: “Normally in the guilt phase, evidence of the crime would not be admissible but in the sentencing phase the evidence would be admissible.” In sum, the trial court validly found the pretrial motion too broad and declined to rule before he knew the full context of the evidence. The result of the ruling was that specific objections became necessary at trial. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).

During the guilt phase of the trial, accomplice Tatum testified: “We started walking around [after getting off the bus in Kansas City] looking for a car. We were looking to steal a car. We did steal a car.” Hill objected on the ground that the evidence was not relevant. The trial court overruled the objection. Later, Tom Pruden, a detective with the Kansas City, Missouri, Police Department testified that Hill confessed, in material part, as follows: “Me and Mark [accomplice Tatum] needed to go to Iowa so we decided we needed a car. A girl came down this alley. I grabbed her. She acted like she wanted to yell. I told her to be quiet, then stepped on the ice and fell to the ground. I put my hand over her mouth and grabbed her. Mark got the purse and the security guard came up. I let her go and walked off. I didn’t see if Mark had a knife. I did not cut her. I did not intend to hurt her.” Before this evidence was admitted, Hill objected to the introduction of the confession on the ground that the confession was involuntary and that it was not relevant. After a Denno hearing, the trial court overruled the objection. Still later, the victim of the crimes in Kansas City took the stand to describe the event, and Hill objected on the ground that her testimony was not relevant and was prejudicial. At trial Hill never asked the trial court to weigh probative value versus prejudice, see Ark. R. Evid. 403; therefore, the trial court did not make such a ruling. Further, Hill did not ask to limit the evidence of the crimes in Kansas City to the facts that would show only flight by the accused. On appeal, he assigns the rulings on relevancy and voluntariness as error.

Hill argues that the crimes committed in Kansas City were not relevant to the crimes charged in this case. The general rule is that evidence of other crimes committed by the accused, but not charged and joined in the same information and not a part of the crime charged, is not admissible in evidence. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). However, there are limited circumstances in which the State can offer evidence of other crimes in its case-in-chief. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Evidence of other crimes is admissible in the State’s case-in-chief when it is probative of the accused’s participation of the crime charged. Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980) (citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954)). Flight from the scene of a crime is relevant and admissible circumstantial evidence that may be considered in determining guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Here, the proof showed that Hill murdered the victim in Arkansas and was attempting to flee to Iowa. By the time he got to Missouri he was without a car or money, so he committed crimes to get a car and money so that he could continue his flight. The evidence of other crimes was relevant proof of flight.

Hill contends that the Missouri crimes have no independent relevance because they were committed two days after the murder charged in this case. This argument was decided adversely to Hill’s position in Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973), when, in holding that evidence of flight may be admissible even though it did not occur immediately after the crime charged, we wrote:

In connection therewith evidence as to the conduct of the accused during the period of his flight including any criminal conduct constituting an inseparable part of the flight such as obtaining money or transportation is generally held admissible. See State v. Ross, 92 Ohio App. 29, 108 N.E.2d 77 (1952), and State v. Martin, 175 Kan. 373, 265 P.2d 297 (1953). Furthermore, evidence of flight after the commission of a crime is generally admissible even though it does not occur immediately after the crime. Commonwealth v. Liebowitz, 143 P. Super. 75, 17 A.2d 719 (1941).

Id. at 92-93, 498 S.W.2d at 886 (emphasis supplied).

Finally, a trial court has considerable discretion to determine admissibility of evidence of other crimes, and will not be reversed on appeal unless it has abused such discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), cert. denied, 445 U.S. 905 (1990).

Hill asks us to reverse the trial court on a Rule 403 weighing, but that issue was neither raised nor ruled upon at trial. An issue cannot be raised for the first time on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Hill next contends that the trial court erred in allowing evidence of the other crimes because his confession to the crimes committed in Kansas City was involuntary. In determining whether a confession was involuntarily given, an appellate court will make an independent determination of the evidence, based on the totality of the circumstances. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). However, Detective Pruden unequivocally testified that Hill was given the Miranda warnings, waived his rights, and “had no hope of reward or fear of punishment.” Scherrer v. State, 294 Ark. 227, 234, 742 S.W.2d 877, 881 (1988). The trial judge was in the best position to determine the credibility of the witnesses at the Denno hearing, and his determination that Hill voluntarily confessed was not clearly erroneous. See, e.g., Misskelley v. State, 323 Ark. 449, 468, 915 S.W.2d 702, 712 (1996).

II.

Four points for reversal involve discretionary rulings by the trial court. Two of these rulings involved motions for continuance. The grant or denial of a motion for a continuance rests in the sound discretion of the trial court and will be reversed only on a showing of abuse of that discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995). Motions for continuance are governed in part by Ark. R. Crim. P. 27.3, which requires a showing of good cause. In addition, the trial court should consider the diligence of the movant, the likely effect of the testimony sought, the probability of obtaining the witness in the event of a postponement, and the filing of an affidavit stating not only what facts the witness would prove but also that the movant believes them to be true. Hill v. State, 321 Ark. at 356, 902 S.W.2d at 230. Hill’s first continuance motion was made three days before trial. In it, he asked for more time to interview three witnesses whose names had just been disclosed. The ruling did not constitute reversible error because none of the three witnesses testified; consequently, Hill could not have suffered any prejudice as a result of the ruling. In this same motion Hill additionally contended that he needed more time to obtain blood tests, but at the hearing on the motion it was admitted that no arrangements for any type of blood test had been made. The trial court denied the motion, finding that Hill had not acted with diligence and that he had made no showing that a blood test would enhance the defense. Hill has not shown these findings of fact to be in error. Since he did not act with diligence and made no showing that a test would enhance the defense, we hold that the trial court did not abuse its discretion in making the ruling. See, e.g., Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).

At the conclusion of the State’s case Hill again sought a continuance, this time to find a witness who would testify that Tatum, the accomplice, had said that he “beat the system.” The trial court denied the motion, finding that the jurors had already been informed of Tatum’s plea bargain and that the testimony would add nothing to the defense. There was no proffer to show that the alleged statement meant anything other than Tatum had entered into a plea bargain, received a sentence of twenty years, unlike Hill, and had avoided the risks of a death sentence or life sentence without parole.

Hill next argues that the trial court abused its discretion in refusing to grant sequestered voir dire. If there is a potential for prejudice, the trial court is free to order sequestered voir dire, but that decision is a matter left to the trial court’s sound discretion. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Hill contends that he would have gotten more honest answers if the jurors had been sequestered, but made no proffer to substantiate the argument and offers no examples of jurors’ responses during voir dire that appear to be less than honest. Accordingly, we cannot say the trial court abused its discretion. See Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983).

Prior to trial Hill filed a motion to exclude from evidence all photographs of the victim. The trial court sustained the objection to one of the photographs, but admitted the others. On appeal, Hill argues the trial court abused its discretion in admitting photograph two, depicting the victim’s body at a roadside; photograph three, depicting a close-up of the victim’s wounds; and photograph four, depicting a close-up of the victim’s head wounds. He contends the three photographs were more prejudicial than probative under Ark. R. Evid. 403.

We have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and this decision will not be disturbed absent a showing of manifest abuse. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). The admission and relevancy of photographs is also a matter within the sound discretion of the trial court. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). An essential element of the charge against Hill was the degree of intent; whether he caused Moss’s death “under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1993). The nature and extent of a victim’s wounds are relevant to a showing of intent, which may be inferred by the type of weapon used; the manner of use; and the nature, extent, and location of the wounds. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). The photographs admitted by the trial court showed where the victim’s body was dumped and the nature, extent, and location of the trauma suffered by the victim. Accordingly, the trial court did not abuse its discretion in admitting the photographs.

III.

Hill was charged with capital murder, kidnapping, and felony theft by receiving. The theft-by-receiving charge was nolle prossed. The trial court instructed the jury on capital murder and kidnapping. The jury returned guilty verdicts on both charges, but the trial court entered a judgment of conviction for capital murder only. In this point for reversal Hill contends it was error for the trial court to refose, before trial, to dismiss the charge of kidnapping because a conviction for both kidnapping and capital felony murder would constitute double jeopardy. The argument is without merit. An accused may be charged and prosecuted for different criminal offenses, even though one offense is a lesser-included offense, or an underlying offense, of another offense. Hill v. State, 314 Ark. 275, 281-82, 862 S.W.2d 836, 840 (1993). However, a defendant so charged cannot be convicted of both the greater and lesser offenses. Id.; Ark. Code Ann. § 5-1-110(a) (Repl. 1993). Thus, at the time of Hill’s trial, a defendant could be charged and tried for capital felony murder and the underlying felony of kidnapping, but could not be convicted of both charges. Martin v. State, 277 Ark. 175, 177, 639 S.W.2d 738, 739 (1982); see also Ark. Code Ann. § 5-1-110(d) (Supp. 1995) (providing for multiple convictions for lesser-included offenses of certain offenses). Here, the jury found Hill was guilty of both capital murder and kidnapping, but the trial court entered a judgment of conviction for capital murder only. Therefore, there was no double jeopardy.

IV

The remaining points for reversal are not of sufficient merit to call for detailed discussion. Hill assigns as error the trial court’s refusal to give an instruction on manslaughter involving emotional disturbance. However, he offered no evidence of such a disturbance, and we have said that it is not error to refose to charge a jury on manslaughter involving emotional disturbance when there is no evidence of such disturbance. Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992). He argues that the trial court erred in denying his motion for a directed verdict. At trial, he moved for a directed verdict on the ground that kidnapping was not proven beyond a reasonable doubt. He did not argue below, as he does now on appeal, that the evidence was insufficient to corroborate the testimony of the accomplice. It is well settled that an appellant cannot change his argument on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); see also Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994) (argument not reached when defendant argued at trial that there was insufficient evidence for a verdict of either first-degree murder, second-degree murder, or manslaughter but argued on appeal that he lacked the culpable mental state).

Finally, pursuant to Supreme Court Rule 4-3 (h), all rulings on objections, made by either party, which were adverse to Hill, have been examined. None of them constitutes reversible error.

Affirmed.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. John WILCOX
    95-1166
    927 S.W.2d 337
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellant.

      Doug Norwood, for appellee.
   Tom Glaze, Justice.

Appellant John Wilcox pled guilty to driving while intoxicated, first offense, before a special or temporary judge in municipal court. The judge delayed sentencing until the return of the regular sitting judge, Doug Schrantz. The special judge indicated Judge Schrantz would impose the use of an interlock ignition device in Wilcox’s car. Such a device connects a motor vehicle ignition to a breath-alcohol analyzer and prevents the ignition from starting if a driver’s blood-alcohol level exceeds the calibration setting on the device.

Before the date of his sentencing, Wilcox petitioned the Benton County Circuit Court for a writ of certiorari or prohibition to prohibit Judge Schrantz from imposing an interlock device as a part of Wilcox’s sentence. The circuit court found that the ignition interlock device law, Ark. Code Ann. § 5-65-118(a)(l) (1993), violated the Equal Protection Clause and issued a writ prohibiting the municipal court from utilizing the statute. The state brings this appeal, seeking reversal.

We do not reach the issue concerning the constitutionality of § 5-65-118 because the circuit court had no authority to issue a writ of prohibition preventing that statute’s enforcement. First, as this court has said repeatedly, a writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. State v. Pulaski County Circuit-Chancery Ct., 316 Ark. 473, 872 S.W.2d 854 (1994); see also 73 C.J.S. Prohibition 521 (prohibition is not available to prevent proceedings where a statute or ordinance is not clearly unconstitutional and where the question of the constitutionality of a statute does not go to the fundamental jurisdiction of the court). Prohibition involves jurisdictional issues, and for the writ to issue, it must appear that the trial court is about to act in a matter beyond its jurisdiction and the petitioner has no other remedy to prevent the threatened usurpation of power. Rodriguez v. Adkisson, Judge, 254 Ark. 128, 491 S.W.2d 814 (1973). Stated differently, prohibition is designed to prevent a court from exercising jurisdiction not possessed by it or power not otherwise authorized by law when there is no other adequate remedy by appeal or otherwise. Municipal Ct. of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).

Wilcox concedes that, when (or if) the Rogers Municipal Court imposed the interlock device as part of his sentence, Wilcox could appeal his conviction judgment to the Benton County Circuit Court where he could obtain a de novo trial and contest, constitutionally and otherwise, the imposition of such a device. In addition, Wilcox admits, as he must, that the Rogers Municipal Court had jurisdiction to try his DWI offense, and this court has held that a writ of prohibition should not be granted even if part of the order is beyond the jurisdiction of the judge, since those questions can be properly raised on appeal. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). Because the Rogers Municipal Court had jurisdiction to try Wilcox’s DWI prosecution, and Wilcox can appeal that court’s decision to circuit court, the Benton County Circuit Court erred in issuing a writ prohibiting that inferior court from utilizing § 5-65-118 in sentencing Wilcox.

In conclusion, we mention Wilcox’s argument that this court lacks jurisdiction to hear this appeal. Wilcox is wrong. The court has jurisdiction under Ark. R. App. P. 2(a)(2); see also Municipal Court of Huntsville, 294 Ark. 37, 740 S.W.2d 614.

We reverse the Benton County Circuit Court’s decision issuing a writ of prohibition and remand with directions to vacate its writ.

       We note that, in his argument in circuit court, Wilcox said that all the local circuit judges were not utilizing the device in DWI cases.