text:
    Thelma Lee BEAULIEU, as Guardian of the Person and the Estate of Bettye Jean CULPEPPER v. Henry GRAY, B.K. COOPER, and Charles VENABLE
    85-254
    705 S.W.2d 880
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      The McMath Law Firm, by: James Bruce McMath, for appellant.

      Friday, Eldredge & Clark, by: Bill S. Clark, and Barry E. Coplin, for appellee.
   Robert H. Dudley, Justice.

Appellant, the plaintiff below, brought suit against appellees, who are administrators and engineers for the Arkansas Highway and Transportation Department, for injuries sustained in a car-truck wreck which occurred at an abnormally dangerous highway intersection. Appellant alleged that the creation of the intersection was a negligent act, and that allowing it to continue in existence amounted to a willful and wanton disregard of appellant’s safety. The trial judge dismissed the suit on the ground that the appellees were immune from tort liability for acts which occurred within the course of their state employment. We affirm.

Sovereign immunity and the immunity of state officers and employees are two different concepts with two different origins and purposes. Sovereign immunity originates with Article V, § 20 of the Arkansas Constitution which provides, “[t]he State of Arkansas shall never be made defendant in any of her courts.” There is no similar constitutional doctrine providing for immunity of state officers and employees. Such a doctrine must come from either common law or statute.

Judge Learned Hand stated that the doctrine of immunity for public employees was based upon a policy of freeing public employees from fear of retaliation for unpopular decisions so that they could function freely and thereby give unflinching discharge of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). William L. Prosser also believed that public employees would be unduly intimidated in the discharge of their duties if they could be sued for actions which were later determined to be negligent. W.L. Prosser, Law of Torts 987 (4th ed. 1971). Another reason advanced for the immunity of state employees is that without immunity, highly skilled employees would not accept public positions because the potential liability would not be commensurate with the relatively low compensation which public employees receive. Van Alstyne, Government Tort Liability: A Public Policy Prospectus, 10 UCLA L. Rev. 463 (1963); Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970); Annot., 45 A.L.R.3d 857 (1970).

In 1979, the State of Arkansas did not have a statute providing immunity for state officers and employees. At that time, this Court refused to create immunity by judicial fiat and held that a state employee was not protected by the sovereign immunity clause and could be liable for an act of negligence which was committed while engaged in the performance of official duties. Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979).

At its next session, in 1981, the General Assembly enacted Ark. Stat. Ann. § 13-1420 (Supp. 1985), which provides:

Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.

Summarizing this brief overview of the immunity doctrines, the Arkansas Constitution provides for sovereign immunity and Ark. Stat. Ann. § 13-1420 provides for immunity of officers and employees of the state.

The suit at bar is filed against employees of the state, and under the quoted statute those employees are immune from civil liability for non-malicious acts occurring within the course of their employment. The appellant, quite understandably, argues that the recent case of Carter v. Bush, 283 Ark. 16, 669 S.W.2d 902, substituted opinion, 677 S.W.2d 837 (1984), states that the quoted statute does not provide immunity for officers and employees of the state. The Carter case does provide that the statute is not a grant of immunity. We expressly overrule that part of Carter.

The ruling of the trial court must also be affirmed for a second reason. While this action is nominally filed against state employees, it is in reality an action against the State of Arkansas in violation of the sovereign immunity clause. The standard for determining whether the State is the real party in interest is set out in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938):

Accordingly it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.

In this case the real party against whom relief is sought is the State since, under the provisions of Ark. Stat. Ann. § 12-3401 (Repl. 1979), a 1979 statute, the State would be required to pay any judgment obtained against appellees. The statute provides:

The State of Arkansas shall pay actual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee, based on an act or omission by the officer or employee while acting without malice and in good faith within the course and scope of his employment and in the performance of his official duties.

The appellant next contends that even if appellees, as employees, have qualified immunity, they are not immune from liability for malicious acts, and that their acts in this situation were willful and wanton. The statute conferring immunity to officers and employees does not protect them if they act maliciously. However, the appellant has failed to allege facts sufficient to support the claim of malicious conduct. A bare allegation of willful and wanton conduct will not suffice. See Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985).

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Karen CARNATHAN v. FARM BUREAU INSURANCE COMPANY
    85-287
    705 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Gary Eubanks & Associates, by: James Gerard Schulze, for appellant.

      David Hodges, for appellee.
   David Newbern, Justice.

The appellant, Karen Carnathan, was injured in an automobile accident. She sued the driver of the other vehicle involved in the collision and ultimately settled for $25,000. Ms. Carnathan was represented by an attorney to whom she paid a contingency fee of one-third of her recovery.

During the settlement negotiations some of Ms. Carnathan’s medical expenses were paid by her insurer, the appellee, Farm Bureau Insurance Company, in the amount of $2,402.59. The accident occurred on December 24,1980. Farm Bureau made the payment to Ms. Carnathan and her attorney on June 14, 1983. The settlement was reached and the suit by Ms. Carnathan against the other driver was dismissed with prejudice on March 21, 1984.

On June 5,1984, a hearing was held in which Farm Bureau, which had not been a party to the litigation, appeared and argued its subrogation claim against Ms. Carnathan. Counsel for Ms. Carnathan argued she was willing to pay the claim but that Farm Bureau was entitled only to the amount it had paid less the cost of collection which, in this case, was one-third because Ms. Carnathan had paid one-third of her total recovery to her attorneys. Ms. Carnathan’s lawyer agreed to allow Farm Bureau to proceed in the matter, and the court’s order said both parties were “agreeable for the court to decide a question which has arisen over a portion of the settlement proceeds.” The court held Farm Bureau was entitled to the entire $2,402.59 essentially because it had not employed Ms. Carnathan’s lawyers to represent its interest.

Ms. Carnathan contends the claim of Farm Bureau is based solely on Ark. Stat. Ann. §§ 66-4014 through 66-4019 (Repl. 1980 and Supp. 1985), our no fault insurance law, which requires every automobile liability insurance policy written in Arkansas to include a provision for payment of minimum medical and hospital benefits without regard to fault, § 66-4014(a), unless rejected in writing by the insured, § 66-4015. The statute requires the payments be made on a monthly basis, § 66-4021, but it gives the insurer a right of reimbursement in the event the insured gets a judgment against or settlement with the tortfeasor, § 66-4019. Section 66-4019 provides:

Insurers’ rights of reimbursement
Whenever a recipient of Section 1(a) and (b) [§ 66-4014(a) and (b)] benefits recovers in tort for injury, either by settlement or judgment, the insurer paying such benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as hereinafter defined. All costs of collection thereof shall be assessed against insurer and insured in the proportion each benefits from such recovery. Said insurer shall have a lien upon said recovery to the extent of its said benefit payments.

Ms. Carnathan contends the statute clearly limits Farm Bureau’s recovery to the sum it paid less cost of collection.

The essence of Farm Bureau’s counter argument is that because Ms. Carnathan did not introduce the policy in evidence we do not know whether she rejected the no fault coverage, and thus we cannot say the statute is the basis of Farm Bureau’s subrogation claim.

Farm Bureau is correct. We cannot tell from the record before us whether it had a basis for its subrogation claim other than the statutory one which would require it to pay the cost of collection. The reason we have no such record is that Farm Bureau was not a party to the litigation. It has filed no pleadings stating its claim. See Ark. R. Civ. P. 8(a).

When the judgment was entered dismissing the claim of Ms. Carnathan against the other driver, who was the only other party to the suit, the case was over. Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966); Mutual Life Insurance Co. of New York v. Phillips, 205 Ark. 432, 169 S.W.2d 132 (1943). The trial court lacked jurisdiction to do anything further in the case. Haft-Gaines Co. v. Reddick, 350 So. 2d 818 (Fla. 1977); General Motors Acceptance Corporation v. Carpenter, 576 P.2d 1166 (Okla. 1978).

This case is a good example of the reason courts are not allowed to reopen dismissed cases to allow non-parties to pursue claims. To decide the issue we are asked to resolve, we would have to guess at the basis of Farm Bureau’s claim and thus whether the statute Ms. Carnathan says was applicable applied or not.

The judgment entered in favor of Farm Bureau against Karen Carnathan on June 22,1984, is reversed without prejudice to Farm Bureau’s right to bring its subrogation action by filing a complaint in the proper court.

Reversed.

Purtle, J., not participating.


text:
    Doug POYNER, SR. v. STATE of Arkansas
    CR 85-198
    705 S.W.2d 882
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Mobley & Smith, by: William F. Smith, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of two counts of rape and two counts of incest. He was accused of engaging in sexual intercourse and deviate sexual activity with his son and daughter who were aged eleven and nine, respectively, when the acts allegedly occurred. The appellant has raised ten points on appeal. Several of his allegations of error are supported neither by citation of authority nor by convincing argument, so we decline to consider them. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). We find no merit in the others, and thus the conviction is affirmed.

1. Motion in Limine

At the outset of the trial, the appellant asked that the prosecutor be prohibited from discussing, either in his opening statement or in questioning witnesses, statements made by the children to others out of the appellant’s presence. While the court did not grant the motion, he also did not deny it. Thereafter, the appellant, in a sidebar conference, complained that the prosecutor had mentioned, in his opening remarks, statements made by the children to other persons. As the appellant has not abstracted the prosecutor’s opening statement, we will not consider an objection based upon it. Arkansas Supreme Court and Court of Appeals Rule 9(d); Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

The appellant’s argument on this point further relates that the prosecutor, in questioning witnesses, over and over mentioned statements made to the witnesses by the children. He refers to certain pages in the record at which these events are depicted, but he does not describe any of them. Our references to the testimony at the cited pages as abstracted reveal two or three such instances, and at each point the court refused to allow the witness to discuss a statement made by one of the children. In our view, some of the testimony, at least, would have been admissible under U.R.E. 803(25)(A) and Ark. Stat. Ann. §§ 42-812(d) and 42-815 (Repl. 1977 and Supp. 1985). We find no prejudice resulted to the appellant in these instances of the court’s exclusion of testimony at his request.

2. Testimony of Physician

Evidence showed that the mother of the children, wife of the appellant, took the children to a hospital emergency room for examination upon learning from the children of the sexual acts with the appellant. The physician who examined them was called as a witness by the state. She testified as to her findings with respect to their physical condition. On cross examination she stated the mother had told her that her divorce action against the appellant was filed on a certain date. The doctor added that the date was pertinent because children would usually not talk about sexual abuse unless they were sure they were safe. On redirect examination, the prosecutor asked the doctor, without objection, whether she had said children often do not disclose such a problem until they feel safe, and that such reticence is an established characteristic of child abuse reporting. The doctor responded affirmatively, and then the prosecutor asked “What’s going on in their mind?” The appellant’s counsel objected, and the court overruled the objection upon being reminded that the appellant’s counsel had elicited the initial testimony from the doctor on this matter.

The appellant argues, and cites authority to the effect, that there was no proper foundation for allowing an emergency room physician to testify about the mental processes of the children. The issue here, however, is not whether the doctor was qualified to discuss the matter but whether the appellant could complain after having opened up this line of testimony on cross examination. We hold it was not error to allow the testimony under these circumstances. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983).

3. Extraneous Evidence

The prosecutor questioned the children’s mother about the status of the appellant’s child support payments. One question suggested that the appellant had sought to “catch up” on his payments prior to this trial. In colloquy with the court the prosecutor said the relevancy of the discussion of the child support payments had to do with the love and concern of the appellant for his children. The appellant objected and sought a mistrial. The objection was sustained, and the jury was admonished to disregard the prosecutor’s remarks, but a mistrial was denied.

We agree that a mistrial was not required. The admonition to the jury was sufficient. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).

4. Abuse Syndrome Expert

The state offered testimony of Mary McKinney as expert testimony on the child abuse syndrome. Her qualifications included a college degree in special education, a master’s degree in school psychology, and three and a half years experience as a school counsellor during which she had been involved in twenty-five to fifty child abuse cases. The appellant objected that the witness had no knowledge of the facts in the case before the court and thus there was no foundation for her to give expert testimony. The appellant cites, e.g., Morton v. Wiley Grain and Chemical Co., 271 Ark. 319, 609 S.W.2d 322 (1980), where we held it was not improper to limit cross examination when the testimony sought of the expert was directed to facts not in issue. The important distinction here is that by the time Mary McKinney testified there was strong evidence of record that a child abuse case was before the court and evidence of the behavior of abused children generally was relevant to explain the conduct of the alleged victims in this case including their unwillingness to discuss it until after their father and mother separated.

As to her qualifications to testify, we need only say it was apparent that Ms. McKinney’s education and experience with respect to child abuse were greater than those of ordinary persons, Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984), and her testimony about child abuse in general was thus admissible. See U.R.E. 702.

5. Attorney-Client Privilege

The mother of the children, Mrs. Poyner, testified she had not been asked by anyone to arrange visitation by the appellant with the children after the separation. The defendant called Mrs. Poyner’s attorney to the stand and asked him whether he had attempted to arrange the visitation with her. The court allowed the attorney to decline to answer on the basis of the attorney-client privilege. The appellant argues that Mrs. Poyner, the client, had effectively waived the privilege when she answered that no one had attempted to set up the visitation.

We agree with the appellant’s citation to Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979), for the proposition that the privilege belongs to the client, and the citation to Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982), to the effect that the privilege may be waived. However, the appellant cites no authority whatever to demonstrate it was waived in this case. In Firestone Tire & Rubber Co. v. Little, supra, the privilege was waived when a damaging letter from a Firestone lawyer was allowed to fall into the hands of a witness. We held that waived the privilege which otherwise could have been asserted by Firestone. No comparable facts exist here. We find neither authority nor convincing argument that Mrs. Poyner waived the attorney-client privilege by simply answering a question about whether she had been approached by anyone about visitation.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Avery Nathan RICHARDSON v. STATE of Arkansas
    CR 85-197
    706 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986
    [Rehearing denied April 28, 1986.]

      Carl J. Madsen, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

The appellant was convicted of murder and arson, and he received sentences of forty and twenty years, respectively, for those offenses. We reversed the conviction in an opinion rendered upon rehearing. Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (1984); reh. granted, 283 Ark. 91, 678 S.W.2d 772 (1984). The appellant was retried and was again convicted, receiving sentences identical to those received in the first trial.

The issues the appellant raises are whether evidence seized from him, after an arrest he contends was unlawful, should have been excluded and whether violation by the police of some of our rules of criminal procedure should result in exclusion of evidence seized. We hold the evidence was improperly admitted, and thus we reverse. The facts are discussed generally in our original opinion and in the opinion issued upon granting rehearing. We will summarize them here with emphasis on only those bearing on the issues presented.

The appellant was observed at the fire the night his uncle’s dwelling burned, and there was testimony the appellant was at that time drunk. The following morning Deputy Sheriff Rowe was dispatched to pick up the appellant, the appellant’s father who was decedent’s brother, and the woman living with the appellant’s father. Rowe testified that the appellant was not intoxicated when he was taken to the sheriffs office. The appellant’s father testified the appellant smelled of alcohol when they were picked up, and the appellant testified he had been drinking since early that morning.

The appellant and the others were taken to the sheriffs office where they waited in the lobby. Deputy Ellenburg, a relative of the appellant, observed the appellant making frequent trips to the bathroom. He said the appellant had a strong odor of alcohol on his breath and he became talkative and “jittery.” Ellenburg did not wish to participate in the case because of the family relationship, so he told Deputy Simpson he thought the appellant was drinking and “he needed to check him down and see.”

Simpson, who was working with state police investigator Davidson, who was in charge of the murder and arson investigation, searched the appellant and found an empty whiskey bottle in his boot. Deputy Simpson arrested the appellant for public intoxication. An inventory search pursuant to the arrest yielded some .22 caliber shells and a Winchester and Western shotgun shell with number 6 shot in addition to the empty bottle. Medical evidence showed the decedent to have been killed by a shotgun blast with number 6 Winchester and Western shot, and a shotgun containing a spent Winchester and Western number 6 shell was found in the ruins of the decedent’s home.

Simpson testified that while the appellant was under arrest for public intoxication, Davidson advised Simpson “that we needed to get his clothes and take (them) to the crime lab.” Simpson had the appellant change clothes and then gave the appellant’s clothes to Davidson who had them examined. The laboratory examination revealed there was blood on the appellant’s boots and shirt. The blood on the boots was of the same type as that of the decedent according to a serologist’s report which was introduced in evidence.

The appellant moved to have all the items obtained in this search suppressed on the basis that there was no probable cause to arrest him for public intoxication and the search was thus incidental to an illegal arrest. The court denied the motion stating:

The court will make a specific finding that the defendant was not intoxicated at the time that he was brought into the sheriffs office, that he became intoxicated at the sheriffs office. . . or at least there is probable cause for that arrest. That would constitute an intervening offense and we have testimony to support that. . . strong evidence to support that from the state police investigator and from Deputy Rowe.
I find that the arrest was made with probable cause and the search was therefore pursuant to the arrest.

The problem here is whether the arrest for public intoxication was a pretext for conducting the search of a person who was a suspect in a murder and arson investigation. No distinct rules for defining a pretextual arrest have been articulated. Pretext must be a matter of the arresting officer’s intent, and that must be determined by the circumstances of the arrest. As the District of Columbia Circuit Court of Appeals said in McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950):

The Supreme Court has specifically held that “an arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452, (1932). In upholding the search in the Harris case the Court pointed out that it was not “a case in which law-enforcement officers have entered premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for merely eviden-tiary materials tending to connect the accused with some crime.” Harris v. U.S., 331 U.S. 145, 67 S. Ct. 1098 (1947). It is settled law that “when it appears, as it does here, that the search and not the arrest was the real object of the officers in entering upon the premises, and that the arrest was a pretext for or at the most an incident of the search,” the search was not reasonable within the meaning of the Constitution. Henderson v. United States, 12 F.2d 528 (4th Cir. 1926).

Some courts have stated that they would disallow facially valid searches conducted incident to arrests which have been made solely as a pretext to conduct a search. In these cases, the search is the real purpose of the police and the arrest, usually on a minor offense or traffic infraction, is merely a subterfuge to obtain the search authority ancillary to the arrest. As stated in Brown v. State, 442 N.E.2d 1109 (Ind. 1982), “the issue of pretext arrest only arises when the surrounding circumstances show that the arrest is only a sham being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause exists.” After discussing the question, that court affirmed the convictions for rape and robbery because the arrest for minor drinking was made based upon the observation of the offense by a plainclothes officer and the admission by the defendant that he had been drinking. After his arrest and with the advice of counsel who was aware that he was a suspect in the rapes Brown consented to the search where the challenged evidence was found. The court found those factors sufficient to overcome the pretext allegation. In State v. Haven, 269 N.W.2d 849 (Minn. 1978), a drug conviction was overturned on the pretextual arrest of Haven on two outstanding traffic warrants and the search of his automobile incident to that arrest. Overturning the conviction, the Minnesota court stated, “the state concedes the warrants upon which Haven’s initial arrest was predicated were fatally deficient .... Even if the arrest warrants had been technically perfect, however, the pretextual nature of the arrest made the subsequent search of the defendant’s vehicle constitutionally imperfect.” The court went further to say “a pretext arrest to permit an otherwise unauthorized search is not one of [the exceptions to the requirement of a valid warrant].”

The pretext argument overturned drug convictions in United States v. Carriger, 541 F.2d 545 (6th Cir. 1976). After conceding they did not have probable cause for the arrest of a suspected drug supplier, a drug enforcement agent entered a locked building through a door left open by workmen following a known drug dealer and arrested the known dealer and the suspected supplier after observing a suspicious transaction. The court said, assuming arguendo probable cause to arrest the dealer, his arrest cannot be used as a pretext to arrest Carriger who was a suspected supplier for whom they had no probable cause for arrest. The court said “several other circuits have also condemned the tactic of circumventing the Fourth Amendment requirements by manipulating the time of a suspect’s arrest to coincide with his presence in a place where government agents wish to search.”

Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir. 1968), involved an automobile arrest for minor traffic violations. The officer acknowledged he was looking for narcotics. Critical for our purposes here, scrutiny of the record revealed no disposition of the charges. In suppressing the evidence obtained pursuant to the traffic arrest the court cited cases and language which clearly mandated this result.

“General or exploratory searches are condemned even when they are incident to a lawful arrest.” U.S. v. Rabinowitz, 339 U.S. 56 (1950). “The arrest must not be a mere pretext for an otherwise illegitimate search.” McKnight v. U.S., 183 F.2d 977 (D.C. Cir. 1950). “The search must have some relation to the nature and purpose of the arrest.” Taglavore v. U.S., 291 F.2d 262 (9th Cir. 1961); Charles v. U.S., 278 F.2d 386 (9th Cir. 1960). See, J. Hall, Jr., Search and Seizure, § 8:10, p. 240 (1982) (Supp. 1985).

Pretext in this case can be found from the fact that the search had no relation to the nature and purpose of the arrest. Deputy Simpson testified that after placing the appellant in the cell he was advised by investigator Davidson to get the appellant’s clothes so they could go to the crime laboratory. No one had at that point looked to discover the absence or presence of blood on the boots. The state had the good judgment not to argue that an arrest for public intoxication is a reasonable predicate for a laboratory examination of clothing.

Pretext can also be found from the fact that each of the law enforcement officials testified that the appellant could not have left the station because he was a suspect in the murder and arson investigation even at the time he was brought to the police station. We note at this point the appellant’s contention that Ark. R. Crim. P. 2.3 was violated. That rule requires police to take such steps as are reasonably necessary to make it clear “to a person requested to appear at a police station that he has no legal obligation to comply.” The officers who were asked on the witness stand whether they had complied with this rule stated that they had not. In Lascano v. State, 275 Ark. 346, 631 S.W.2d 258 (1982), failure to comply with Rule 2.3 was raised as an issue but was not determinative of the case because no objection was made at the trial. In obiter dicta in the decision upholding the conviction the court said “the argument of failure to warn pursuant to Rule 2.3 and failure to give Miranda warnings before asking routine investigatory questions is not persuasive. No evidence at the scene implicated the appellant and there is no indication Sergeant Fogley regarded her as a specific suspect.” In this case it is clear that the appellant was at the sheriff’s office because he was a suspect in the arson and murder investigation, not for routine investigatory purposes, and the failure to comply with the rule along with the officer’s testimony he could not leave is revealing of that fact.

The authority to search incident to an arrest depends wholly upon the lawfulness of the arrest. If the arrest is lawful, i.e., based upon probable cause, the search is lawful. U.S. v. Robinson, 414 U.S. 218 (1973). Our opinion on rehearing reversing the first conviction closed with the following penultimate paragraph expressing concern about this arrest:

Since the case is being remanded, the trial court should rehear the issue of appellant’s arrest to determine whether there was probable cause to support the arrest for public intoxication, independent of murder and arson charges. In that regard, appellant’s condition at the time he was picked up is of significant importance in evaluating the totality of the circumstances surrounding the arrest. Also, the circumstances under which appellant was brought to the police station are important, especially whether A. R. Crim. P. 2.2, 2.3, and 3.1 were followed. The degree of inebriation at the time of arrest is a relevant consideration. All of these circumstances should be weighed in determining whether appellant’s September 1 statement and other evidence seized should be admitted. Richardson v. State, 283 Ark. at 91-C & D (1984).

While the trial court did part of what we asked and found probable cause to have arrested Richardson on the public intoxication charge, it did not satisfy our concern with respect to the violation of Ark. R. Crim. P. 2.3 and 3.1. Rule 2.3 provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

No officer complied with the positive duty prescribed by this rule. The reason there was no compliance was that the officers, according to their testimony, would not have released the appellant had he asked to be released. Thus there was also a violation of the detention limit posed by Rule 3.1. Regardless of whether we can technically justify the arrest on the charge of public intoxication, we can find no justification whatever for these rules violations. The appellant was clearly being held because he was suspected in the murder and arson case. The officers had a duty to charge him with that offense or let him go. Their failure to do so put them in violation of the rules mentioned and the realization of those violations makes it even clearer that the arrest which occurred was carried out as a pretext to permit the search.

This Court has held squarely that evidence obtained in an inventory search conducted at a jail pursuant to an unlawful arrest is inadmissible. Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980); Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). The evidence obtained pursuant to the arrest for public intoxication must be suppressed.

We regret that this case must again be reversed. The state argues that even if we find reversible error in admitting the evidence in question we should affirm because there is no prejudice in view of the other strong evidence against appellant. The state’s brief refers to these facts: (1) the appellant and the victim had been on “bad terms;” (2) the appellant was the first to report the fire; (3) the appellant, while witnessing the fire, said the victim was inside the burning house; (4) bottles of beer like ones he said he had delivered earlier that day to the victim were found in the appellant’s house; (5) appellant had been seen carrying a shotgun like the one found in the home of the victim; (6) an empty W & W number 6 shotgun shell box was found in the appellant’s home; (7) the appellant had told neighbors he was just going to have to kill the victim; and (8) the appellant made some incredible statements to neighbors about having been wounded in a gun battle inside the victim’s home the night of the fire.

While we agree this is strong evidence against the appellant, we cannot say it is of the overwhelming sort that would justify us in ignoring the illegally admitted evidence. The sad fact is that most if not all of this evidence would have come into the hands of the police authorities without the appellant’s arrest for public intoxication and could eventually have been the basis of a lawful arrest which would have produced the same evidence obtained here by pretext.

Reversed.

Purtle, J., not participating.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. My disagreement with the majority opinion is limited to the issue of whether appellant’s arrest for public intoxication was merely a pretext to gain evidence to support the murder charge. Because I believe there was probable cause to arrest Nathan Richardson for public intoxication, I have a different view of the issue of pretext. If probable cause existed, then, on the circumstances of this case, we should leave to the trial court whether the underlying motive was bona fide.

There was testimony that Mr. Richardson had been drinking when he was picked up at about 9:00 a.m. There was also proof from which the trial court could have found, as it did, that he was not then intoxicated. At the courthouse, waiting to be interrogated, Mr. Richardson made a half dozen trips to the restroom, showing increasing evidencé of intoxication. In the early afternoon, at the behest of his own nephew, a deputy, Richardson was searched and an empty one-half pint bottle of whiskey was found in his boot. The testimony of the nephew and two other officers provided a substantial basis for the finding of the trial court that there was probable cause to arrest Richardson for public intoxication.

I concede there are cases prohibiting a pretextual arrest, some of which the majority has cited. But none of those cases withstand close comparison with the case before us. In Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir. 1968), the appellant, under surveillance for selling drugs, was arrested for an improper left turn, held to be a pretext. But there one of the officers admitted he arrested appellant in order to search his car for drugs. In McKnight v. United States, 183 F.2d 977 (App.D.C. 1950), the only case cited in Richardson’s brief, the government conceded that the police could have executed the warrant for McKnight’s arrest on the street, but deliberately waited until he entered a private residence so they could effect a search for evidence of a numbers operation. In State v. Haven, 269 N.W.2d 849 (Minn. 1978), the arrest was illegal because of defects in the warrant (for traffic offenses) and while the court noted that even if the warrant had been proper the result would be the same, that was because the police had passed up opportunities to arrest Haven, waiting for him to get in his car, a search of the car being the real objective of the arrest. In United States v. Carriger, 541 F.2d 545 (6th Cir. 1976), without probable cause to arrest, officers entered a private apartment by slipping past a locked entrance under circumstances described by the Court of Appeals as amounting to criminal trespass.

Those cases, I submit, are distinguishable. Two cases more comparable to this case are Brown v. State, 442 N.E.2d 1109 (Ind. 1982) and Porter v. State, 391 N.E.2d 801 (Ind. 1979). In both cases the defendants were suspected of more serious offenses and, while under surveillance, were charged with intoxication. Though the evidence was marginal in both cases, there was probable cause to arrest on the lesser charges. The Brown Court said:

The issue of a pretext arrest only arises when the surrounding circumstances show that the arrest is only a sham being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists. (Cites omitted). Here, the circumstances show that the police had seen defendant drinking alcoholic beverages and made a valid arrest on that charge. The fact that defendant was also a suspect in the rape cases does not make that arrest improper. (My emphasis).

When we remanded this case to the trial court after the first appeal we asked it to make findings of fact on whether the arrest for public intoxication was proper. The trial court did that as instructed and since there is substantial evidence to support those findings I would not reverse. I do not suggest by this dissent that this case was handled properly at the outset. Quite the contrary. The long delay in bringing Richardson before the court for arraignment and the violation of A.R.Cr.P. 2.3 are clear infractions of the rules in criminal cases, but we have not held that those violations mandate dismissal of criminal charges. If we intend to adopt that as the law, we should say so and be done with it.

Hickman, J., joins this dissent.


author: Per Curiam.

text:
    Dennis GLICK v. A.L. LOCKHART, Director, Arkansas Department of Correction
    85-282
    706 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, an inmate of the Arkansas Department of Correction, filed a petition for writ of mandamus against the Director of the Department taking issue with the Department’s computation of his parole eligibility date. The circuit court denied relief, and appellant appealed to this Court. When he sought to file a handwritten brief, it was returned to him to be typed since we do not accept handwritten briefs in a direct appeal. See Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982). Appellant now seeks a writ of mandamus to compel the Department of Correction to provide him with a typewriter so that he may type the brief and resubmit it for filing.

In criminal cases where appellants are entitled to appointment of counsel, we will appoint an attorney upon proper motion for inmates who are unable to comply with our rules. Green v. State. In civil matters, including suits against the Department of Correction challenging parole eligibility dates, we will appoint counsel only where the appellant is able to make a substantial showing that he is entitled to relief and that he cannot proceed without counsel. Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986).

The same general criteria apply to civil suits in which the appellant contends that he cannot submit a conforming brief without access to a typewriter. That is, in those cases where a pro se appellant submits a motion for permission to file a handwritten brief in which he makes a substantial showing that his suit has merit and that he is unable to submit a typed brief, we will accept a legible handwritten brief.

Appellant has thirty days to file a typed brief or submit a motion for permission to file a handwritten brief.

Petition denied.

Purtle, J., not participating.


text:
    Roosevelt HAYES v. A.L. LOCKHART, Director, Arkansas Department of Correction
    86-10
    706 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Appellant, pro se.
    No response.
   Per Curiam.

In this motion appellant, an inmate of the Arkansas Department of Correction, requests appointment of counsel to represent him in the appeal of the denial of a civil motion for declaratory judgment against the Director of the Department of Correction. He bases his motion for counsel on the unavailability of typewriters at the prison, which precludes his submitting a typed brief as required by our rules.

The motion is denied. The appeal is civil in nature, and there is no absolute right to counsel in a civil action. Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986).

If the lack of a typewriter is hindering appellant’s access to this Court, he may seek permission to proceed pro se with a handwritten brief. As we said in Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986), which was also decided today, permission to file a handwritten brief will be granted upon proper motion if appellant makes a substantial showing that his suit has merit and that he is unable to submit a typed brief.

Motion denied.

Purtle, J., not participating.


text:
    Edward Charles PICKENS v. STATE of Arkansas
    CR 86-42
    706 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

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

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner asks for a writ of certiorari to the circuit court to deliver an accurate transcript in this case. Evidently three different reporters were used at different times. Since filing the petition, the record has been tendered and the issues presented are admittedly moot except those pertaining to the transcript prepared by Reporter James Taylor.

That portion recorded by James Taylor is challenged for two reasons: it is inaccurate and Taylor refuses to certify the transcript because he is no longer a reporter.

Evidently Taylor was the duly certified court reporter for this circuit court at the time he acted. The fact that he is no longer certified is incidental to his duty. If the trial court finds the transcript accurate, Taylor shall certify that portion he prepared as accurate and sign it. He may reflect the fact that he is no longer a reporter; but he was a certified reporter then and cannot avoid his duty to prepare and deliver an accurate transcript.

The circuit court has the inherent authority to order that reporter to prepare an accurate transcript. If he will not, the power of contempt proceeding is available; if he cannot prepare an accurate transcript because of incompetence, the power to order it done at the reporter’s expense is available.

The matter is remanded for the circuit court to take whatever action is necessary to resolve the questions remaining regarding the record.

Purtle, J., not participating.


text:
    Johnny Lee TUBBS v. STATE of Arkansas
    706 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      David H. McCormick, for appellant.
    No response.
   Per Curiam.

Appellant, Johnny Lee Tubbs, by his attorney, David H. McCormick, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

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

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    John GIPSON, Bill HEFLEY, M.D., Coolidge FAULKNER, Richard CONDER, James DIXON, A.J. TOMME, and Jack CASE v. Joe BROWN, Tip NELMS, D.D.S., and Bob SCOTT
    85-180
    706 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Friday, Eldredge & Clark, by: William H. Sutton and Diane S. Mackey, for appellants.

      Bob Scott, for appellees.
   Jack Holt, Jr., Chief Justice.

The parties to this lawsuit are all members of the Sixth and Izard Church of Christ, Inc., a church incorporated under Arkansas law as a nonprofit corporation. Appellants are elders of the church and appellees are part of its general membership. Appellees instituted suit in Pulaski Chancery Court alleging that they have been denied financial data and other business information relating to the church and asserting that, as members of a nonprofit corporation, they are entitled to this knowledge as a matter of statutory right. Appellants filed a motion to dismiss for failure to state a claim and because the relief sought cannot be awarded without violation of the first and fourteenth amendments to the United States Constitution and art. 2, §§ 24 and 25 of the Arkansas Constitution. The trial court denied the motion to dismiss without conducting a hearing on the constitutional issues. Appellees filed discovery requests seeking the same financial and business information which was the object of the lawsuit. The appellants challenged the propriety of the discovery request, but the trial court ordered them to comply. It is from that interlocutory order that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(a) and (k).

We grant relief from the interlocutory order and find that an evidentiary hearing is necessary to determine the merits of appellants’ claim of constitutional protection against ordered disclosure of church information. Accordingly, we remand to the trial court.

The religious beliefs of all citizens are zealously protected from government interference under both the state and federal constitutions. The Arkansas Constitution provides that “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; ... No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience. . .” art. 2, § 24. In recognition of the fact that “[r]eligion, morality and knowledge [are] . . . essential to good government”, the General Assembly was instructed to enact suitable laws to protect every religious denomination. Art. 2, § 25.

We have strictly adhered to this absolute prohibition of any infringement upon religious beliefs. It necessarily follows that internal church disputes relating to the disclosure of church business should not be subject to the legal concern of this court. However, when the Sixth and Izard Church of Christ decided to incorporate, it submitted itself to certain corporate laws of this state, thus opening the door to examination of their present quarrel in a legal setting.

This appeal was taken from the court’s interlocutory order compelling discovery. Since the discovery sought the very records and financial information that were the object of the lawsuit, appellants refused to comply, arguing that to do so would be to decide the case on the merits.

It should first be noted that this appeal was properly taken since the interlocutory order in effect determines the action and prevents a judgment from which an appeal might be taken. Ark. Rules of App. P. Rule 2(a)(2). If appellants comply with the discovery order and the trial court concludes after the trial that appellees were not entitled to the information they sought, appellants could not be placed in their former condition. See Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967), rehearing denied. Therefore, since we find the discovery order is the equivalent of a decision on the merits, the appellants need not release the information that is the subject of this lawsuit until a final ruling is obtained.

As to the motion to dismiss, the chancellor held that by virtue of the church taking advantage of the state’s laws, certain duties apply that have nothing to do with the constitution. This is not entirely correct. Certain statutory duties do apply, unless they conflict with a constitutional prohibition. The Arkansas law referred to by the chancellor was the statutory chapter on nonprofit corporations. Ark. Stat. Ann. §§ 64-1901 — 64-1921 (Repl. 1980). The appellees’ lawsuit is based on Ark. Stat. Ann. § 64-1913 which provides in pertinent part:

Each corporation shall keep correct and complete books and records of account. ... All books and records of a corporation may be inspected by any member for any proper purpose at any reasonable time.

It is clear that under § 64-1913 the appellees are not entitled to inspect the church’s records as a matter of right. Instead, they are allowed to so inspect upon a demonstration of a proper purpose. Since the complaint filed in this case contained allegations of abuse of power by the elders and impropriety in the selection of the board of directors, this threshold requirement is met.

The question now arises: Does the enforcement of statutory law, and in particular § 64-1913, override the religious doctrine, polity, or practice of the church as protected by the federal and state constitutions? Whether this action can be maintained at all is a close question. The appellants mount a vigorous argument that the tenets of the Church of Christ religion place authority for church administration solely in the hands of the elders and, pursuant to the dictates of their religion, the elders cannot be compelled to share this information with members of the congregation. Appellees argue with equal vigor that the Church of Christ is and has always been a congregational church and that as members of a congregational church, they have a right to inspect the records.

To claim the protection of the freedom of religion clauses of the U.S. and Arkansas Constitutions, the appellants’ position must be rooted in religious belief. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). The determination of what is a “religious belief’ is a delicate matter and state courts can only become involved in church disputes when “neutral principles” of law can be applied to resolve the dispute. Synanon Foundation, Inc. v. California, 444 U.S. 1307 (1979).

Although courts have no power to decide religious questions, that does not mean that courts will not assume jurisdiction over religious institutions. “Religious organizations do have temporal rights and duties with respect to properties and contracts which courts will recognize and enforce. . . Only with respect to these temporalities should courts recognize legal rights and duties and enforcement as limited to nonreligious policies.” Mount Zion Baptist Church et al. v. Second Baptist Church, 432 P.2d 328 (Nev. 1967).

Louisiana courts have considered this question and found that lawsuits can be maintained against incorporated churches for enforcement of a voting member’s statutory right to examine the records of the corporation. Bourgeois v. Landrum, 396 So.2d 1275 (La. 1981); Wilkerson v. Battiste, 393 So.2d 195 (La. App. 1980), rehearing denied. In so holding, the Louisiana court in Bourgeois, relied on the fact that judicial enforcement of this right did not entangle civil courts in questions of religious doctrine, polity or practice. The court acknowledged that:

First Amendment values are plainly jeopardized when church property litigation. . . turn [s] on the resolution by civil courts of controversies over religious doctrine and practice. . . .The First Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine . . . This principle applies with equal force to church disputes over church polity and church administration.

Here, appellants assert the very entanglement in questions of religious doctrine that the court found absent in the Louisiana cases. Their claim of first amendment protection rests on the fact that under Church of Christ doctrine, the decision whether to disclose church financial information rests with the elders. Clearly this reliance on church doctrine is jeopardized by the corporate status of the church. Although the trial judge found that corporate law and not religious doctrine applied, he did so based on the pleadings and without conducting a full evidentiary hearing. Without the benefit of such a hearing, we are unable on appeal, even with a de novo review, to weigh the sensitive overlap between church and state that is presented by this case. In addition, the parties are entitled to a hearing with the submission of evidence and testimony to satisfy the constitutional requirements of due process of law. Mendel v. Garner, 283 Ark. 473, 678 S.W.2d 759 (1984). Accordingly, we remand this case with instructions to conduct a hearing on the claim of first amendment protection versus the disclosure requirements of corporations.

We will address the appellants’ final argument because it will arise at the next hearing. Appellants contend that one of the appellees, Bob Scott, should not be allowed to represent himself in this proceeding because he served as attorney for the church when it incorporated.

Appellants present two arguments, one procedural and one substantive, and they are correct under both theories. The chancellor entered an order on April 16, 1985 which held:

Even though the Court granted Defendants’ Motion to Disqualify BOB SCOTT as Counsel for JOE BROWN and TIP NELMS, DDS, that Motion was granted only for the purpose of avoiding even the appearance of impropriety. The Court finds that standard would not be applicable to BOB SCOTT acting as Counsel for himself.

On April 26,1985, the court entered an order reconfirming its order of April 16. The appellants filed their notice of appeal to this court on that same day. On May 29,198 5 the court signed the following order:

Defendants are entitled to such clarification, good cause having been shown. Because to permit Bob Scott to represent anyone, even himself, in this cause would necessarily raise the appearance of impropriety in violation of the Code of Professional Responsibility, he may not act as counsel for or representative of any party, including himself.

Appellants filed a motion on July 1, 1985, for extension of time for filing the record on appeal, citing the May 29 order as the reason for the delay. The judge granted the extension and Scott received a copy of that motion. The initial record was filed with this court on July 23, 1985. On September 9, 1985, after the record was lodged and appellants’ brief was filed with the supreme court, Scott filed a motion in chancery court to strike the May 29 order. The trial judge held a hearing and entered an order granting the motion on September 26, 1985.

During the pendency of an appeal, mistakes in orders may be corrected by the trial court before the appeal is docketed in the appellate court or thereafter with leave of the appellate court. Ark. R. Civ. P. Rule 60(a). Neither the appellees nor the trial court sought the permission of this court before the hearing was held and the order stricken. Accordingly, the issue is not properly before the court and the May 29 order prohibiting Scott from representing any party, including himself, must stand.

Because we anticipate that on remand the trial court will correct the obvious discrepancy between the two orders by striking the May 29 order as he attempted to do already, we will also reach the merits of this issue.

The problem concerns the fact that Bob Scott, acting as counsel for the church and the elders, advised the church to incorporate and assisted them in that endeavor. The petition for incorporation lists the elders individually as petitioners and gives Bob Scott’s name as their attorney. Appellants maintain that it involves at least the appearance of impropriety to allow Bob Scott to now represent himself and sue the elders based on the church’s corporate status. The trial court found in its April 16 and 26 orders that no evidence was presented as to any conflict of interest since Scott represented the church and not the individual elders. We disagree.

Since Scott represented the elders in their capacity as petitioners for incorporation that was sufficient representation to present a conflict, or in the least, an appearance of impropriety.

The American Bar Association’s Code of Professional Responsibility provides that a lawyer should preserve the confidences and secrets of a client, Canon 4. A lawyer should exercise independent professional judgment on behalf of a client, Canon 5. A lawyer should avoid even the appearance of professional impropriety, Canon 9. Courts will disqualify counsel in an adversary proceeding when:

(1) the moving party was previously represented by the attorney whose disqualification he now seeks; (2) the matters embraced within the pending suit are substantially related to the matters or the cause of action for which the attorney previously represented the moving party; and (3) the attorney is representing an adversary of the movant party in the pending suit.

Heathcoat v. Santa Fe Internat’l Corp., 532 F. Supp. 961 (E.D. Ark. 1982). If the two actions are found to be substantially related, a presumption arises that the former client’s confidences were disclosed to the former attorney, which confidences the attorney might use to the detriment of the movant in the current action. Id. The court will entertain this presumption and will not inquire into the nature and extent of the confidences. The confidential disclosures, whether actual or presumed, necessitate the disqualification of the attorney when he represents an adverse interest in a related matter. State of Ark. v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir. 1979).

Applying these rules to the case at bar, Scott previously represented the elders as petitioners for incorporation; the present lawsuit concerns the obligations of the church under the articles of incorporation — a substantially related matter; and Scott is representing himself as an adversary party to the church and the elders. We will presume that confidential disclosures were made to Scott by the elders and that these might be used to the elders’ detriment in the current action. Accordingly, Scott is disqualified from any participation in this lawsuit as an attorney, whether representing himself or others. A lawyer is not permitted to use information acquired through representation for his own purposes. EC-4-5. Although this court cannot restrict Scott’s constitutional right to be a party litigant, he is admonished not to make personal use of any information imparted to him as a result of his prior representation of the church.

Reversed and remanded for proceedings not inconsistent with this opinion.

Purtle, J., not participating.


text:
    NEWTON COUNTY, Arkansas v. Don WEST, Administrator of the Estate of Sue S. MORAK, Deceased
    85-300
    705 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986
    [Rehearing denied May 5, 1986.]

      Karen B. Walker, for appellant.

      Gresham & Kirkpatrick, by: James E. Gresham, for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

Newton County filed a motion to have appellee, Don West, removed as administrator of the estate of Sue S. Morak because of a conflict of interest and misadministration, and have him replaced by a special administrator. The Newton County Probate Court responded by appointing a special administrator to appeal a chancery court decision adverse to the estate, but retaining West as administrator for all other purposes. Newton County appeals the decision and we affirm. Jurisdiction in this court is pursuant to Sup. Ct. R, 29(1)(c).

Dwight Davison was originally appointed as administrator of the estate of decedent, who died leaving no will and no known heirs. Davison resigned as administrator because of conflicts of interest resulting from his claims against the estate, including $324,087.35 in U.S. Savings Bonds and $4,020 in cash contained in a lock box and $11,110 owed on a car decedent had agreed to buy for him in return for services he and his wife had rendered. West was named as successor administrator. The chancery court subsequently found the lock box contents were held jointly with the right of survivorship in Davison and were therefore not the property of the estate.

After the final accounting was approved, which had been prepared by Davison before his resignation, and Davison’s claims against the estate were allowed, Newton County moved to have West removed as administrator. Newton County’s motion alleged that: 1) no notice was given to the county of the proceedings involving the estate although the county claimed to be an interested party as a potential beneficiary under the escheat statutes; 2) West was sharing office space with Davison’s attorney, which presented a conflict of interest since Davison was an adverse party to the estate; 3) West failed to challenge the administrator’s and attorney’s fees listed in the final accounting; 4) West failed to challenge the car payment provided in the final accounting which Davison claimed as a gift from the decedent; and 5) West refused to pursue an appeal of the chancery court judgment awarding Davison the contents of the lock box. West denied all allegations of conflicts of interest and misadministration in his answer.

Arkansas Stat. Ann. § 62-2203 (Repl. 1971) provides;

When the personal representative becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his trust, has mismanaged the estate, failed tp perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by Section 70 b (6) [§ 62-2201], then the court may remove him. The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed. The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal.

A hearing was held on the motion, but no evidence or testimony was produced to provide any basis for removing West. The entire hearing consisted of argument by counsel concerning whether Newton County was an interested party based on the possibility that the estate would escheat to the county. The court stated at the close of the hearing that it was aware that it could remove an administrator on its own motion even if Newton County was not an interested party, but that it could consider that as a factor in its decision.

The hearing is not abstracted and no argument is made now as to whether Newton County is an interested party, so we do not consider that issue on appeal. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Collier v. Hot Springs Savings & Loan Ass’n., 272 Ark. 162, 612 S.W.2d 730 (1981).

It is the burden of appellant to present a record on appeal demonstrating that the probate court’s decision was clearly erroneous, and in the absence of that showing we do not reverse. Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). We cannot say from the record before us, consisting solely of the pleadings, that the probate court committed error as a matter of law in holding that any alleged conflicts or mismanagement would be cured by appointing a special administrator to pursue the appeal of the Davison judgment against the estate, and in retaining West for all other purposes.

Affirmed.

Turtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Herman Martinez HOLLAND v. STATE of Arkansas
    CR 85-204
    706 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Herman Holland, and his co-defendant, John Zones, were charged with capital murder, kidnapping, and aggravated robbery. At separate trials each was found guilty of all three offenses and sentenced to life imprisonment without parole upon the charge of capital murder, with which the trial court merged the other two offenses. We find no merit in Holland’s, arguments for a new trial, nor any prejudicial error in the other points disclosed by the record as abstracted.

After Zones had been convicted he testified as a witness for the State at Holland’s trial. The basic facts were much the same as they had been developed at Zones’s trial. See our opinion in Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). Zones testified that he and Holland had spent the evening drinking at bars with the victim, James Mitchell. The three men left in Mitchell’s car at about 4:00 a.m. According to Zones, it was Holland who stabbed the victim and put him in the trunk of the car. They drove out the Memphis highway and stopped by Faulkner Lake, which is swampy and shallow. Zones testified that Holland struck the victim twice on the head with a tire tool, dragged him from the car, and disposed of the body by taking it out into the lake, where he anchored the body under the water with logs. The next morning, according to Zones, the two men first tried to get a woman to dispose of the car for them and finally burned it near the Arch Street Pike.

The murder was committed on July 9 or 10. In September, after Zones had been arrested, he showed the officers where the body had been submerged. A picture of the remains, just under the surface, was introduced at the Zones trial and again at this one. We have examined the picture and do not find it so offensive as to be inadmissible. Nor was a picture of the burned car subject to objection.

The testimony of Zones, a confessed accomplice, was sufficiently corroborated. Carla Bettis, who had been Holland’s girl friend and by whom he had had a child, testified that Holland had told her that he and a man named John had picked up a man at a bar, that they had ridden around drinking with him, and that Holland stabbed the man. According to her, Holland said they took the man to a swampy part of the river, where John beat the man with a tire tool. They then stripped him down and tied him out in the river.

Holland testified in his own defense. He admitted having been with Zones that evening until about 2:30 a.m., but he said he then went home. He said he saw Zones the next day at about noon and was with Zones when they tried to persuade a woman to dispose of the car. It is argued that the corroborating witness’s testimony differed in several respects from the facts as proved at the trial. That is to some extent true, but the jury was properly instructed as to the need for corroboration. Upon the evidence the jury could, and evidently did, find the corroboration to meet the requirements of the law. If believed, it was sufficient.

Before the voir dire had begun, a roll call of the expected witnesses showed that one witness for the State had not yet arrived. A deputy prosecutor remarked: “I don’t know what’s happened to him unless he’s gotten killed. He knew to be here.” Defense counsel moved for a mistrial. The motion was properly denied. As the trial judge observed, the remark was just a comment that had nothing to do with the trial and did not impute anything to anyone.

The denial of another motion for mistrial is said to have been reversible error. During a noon hour a juror reported to the trial judge that he had received a telephone call during the preceding night. In chambers, in the presence of counsel, the juror was sworn and questioned. He said his phone rang at 1:16. The juror continued:

They asked: “Are you Larry Davis?” I said: “Yes.” And the next words were either, “You better do good,” or “You better be good,” and I hung up before the sentence was completed.

The juror did not know who it had been, but he said the voice sounded “gay.” (There had been some indication that the victim of the murder may have been gay.) The juror said that in his opinion the call did not affect his ability to decide the case fairly. “It doesn’t bother me at all that I got the call.” The juror said he had not mentioned the matter to the other jurors and was told not to do so.

We perceive no abuse of the trial court’s discretion in its refusal to grant a mistrial. That drastic step should not be taken unless the possibility of prejudice cannot be removed by an admonition to the jury, or here to the juror. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Here the trial judge was evidently impressed by the juror’s conscientiousness in reporting the matter. The judge was in a far better position than we to say whether the particular juror might be affected by the telephone call. Such incidents obviously cannot be prevented. For us to set aside the trial for what seems to have been the proper way to handle the matter might encourage such anonymous calls in the future.

There is no substance to the argument that the trial court improperly restricted the defense in the cross-examination of two witnesses. The first was Zones. The defense had been provided with a written account of a social worker’s interview with Zones. The account reported Zones as having said that when he was fourteen he had stabbed a man and that all his life he had had a violent temper that led him to strike people and smash things. Defense counsel disclaimed any intention of asking Zones about the specific stabbing incident, but he did want to ask about Zones’s general statement, which the judge said he would permit. Counsel later asked Zones: “Have you ever made the statement that you have a very explosive and violent temper that leads to hitting and beating people?” Zones said, “No, sir,” and stuck to his position when the same question was asked two or three times. Counsel argues the point at some length in his brief, but the trouble is the absence of any specific complaint. That is, neither the abstract nor the brief sets forth any particular question that counsel was not permitted to ask. No error is shown.

The second occasion occurred during counsel’s cross-examination of Ms. Bettis, Holland’s former girl friend. Counsel had elicited an admission from Ms. Bettis that the juvenile court had charged her with being a neglectful parent and that she was engaged in a legal battle about the custody of her children. The attorney later asked: “If Herman Holland is convicted of this charge or any other significant charge, I assume that that would remove one potential witness that you would have a problem with, wouldn’t it?” The court properly sustained the State’s objection, noting that the question was argumentative. Not only was the question argumentative; it contained unwarranted assumptions of fact on the part of the interrogator. In sustaining the objection the court did not abuse its discretion in controlling cross-examination.

Before the trial, counsel filed a number of motions raising questions about the validity or application of our statutes relating to capital murder. These questions have been answered in several of our opinions and need not be explored once more. We are convinced by the record and the briefs that Holland was fairly tried and was convicted in accordance with the law.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Leon and Wanda MILLSAP v. Clift C. and Dorothy P. LANE, and LANE PROCESSING, INC.
    85-209
    706 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986
    [Rehearing denied May 5, 1986.]

      Davidson, Horne & Hollingsworth, A Professional Association, for appellants.

      Kaplan, Brewer & Miller, P.A., by; Philip E. Kaplan and Karen L. Arndt, for appellees.

       Purtle, J., not participating.

   Darrell Hickman, Justice.

This appeal questions an award of attorneys’ fees. Some background is essential to understand this litigation which began in 1980 in Pope County Chancery Court, spread to forums in Kansas and North Carolina, and has consumed the time of numerous lawyers and courts. The case arises from a dispute between Leon and Wanda Millsap and Clift C. and Dorothy P. Lane. These couples agreed to build and equip a chicken processing plant in Pope County. The Millsaps were to provide their secret recipe and management, and the Lanes were to provide financing. They formed a corporation called Millsap Processed Foods (MPF), in which the Millsaps and the Lanes were 50/50 shareholders. The Lanes obtained a loan of $3,000,000 and MPF gave Lane Processing, Inc. (LPI), the Lanes’ family corporation, a promissory note for the debt. Disagreements ensued and in 1980 the Lanes petitioned for the dissolution of MPF and for appointment of a receiver. The Millsaps made a derivative counterclaim on behalf of MPF. Ultimately the Lanes purchased the MPF assets for $1,000,000 at a foreclosure sale.

The chancellor’s decree, entered prior to the hearing on fees, contains findings pertinent to our review of the fee award. First, the chancellor found that the Lanes and LPI, who he determined to be one and the same, breached their agreement to finance and breached their fiduciary duties as officers and directors of MPF. This latter breach occurred when the Lanes purchased the MPF assets substantially below their value. He found that the land, building and equipment of the plant were actually worth $3,042,923 rather than the $1,000,000 the Lanes paid. The chancellor awarded damages for the breaches as follows: he found that MPF sustained damages of $2,082,542 from the Lanes’ purchase at foreclosure. That amount represented the actual value of MPF plus $39,717 foreclosure costs, less the one million paid by the Lanes. That judgment was awarded against the Lanes and LPI jointly and severally and was to be satisfied by the offset of the $3,000,000 note owed to LPI by MPF of which the principal sum of $2,316,392 was still owing. Over one million dollars in interest on the note was cancelled. The offset left $233,850 still owing on the note. The chancellor held that that amount was owed to the Lanes and LPI and their contingent claim for that money would be subject to all further judgments, costs and fees in the proceeding.

The controversy in this case is rooted in the disposition of $400,000 of MPF assets. At the earlier foreclosure hearing, the chancellor held that MPF would retain a lien on $400,000 plus interest of its assets. This amount was sheltered from the Lanes’ bankruptcy proceedings in North Carolina and has been earning interest since December 29, 1980. The lien, with interest, amounts to over $540,000 and is in the trial court’s registry.

The attorneys for MPF and the Millsaps brought a claim for attorneys’ fees of $422,977.50 for services rendered only to MPF for the derivative action. The claim represented 6,512 hours with hourly fees ranging from $112.50 to $30.00. The court held a hearing on the claim and detailed testimony of the hours spent by ten attorneys on the case was submitted together with actual out-of-pocket costs. James B. Blair and E. J. Ball, two experienced attorneys, presented their expert opinion of appropriate fees in cases such as this one. They testified at length and concluded the attorneys’ fees claimed were reasonable. Among the factors they considered in their determination were the experience of the attorneys, the complexity of the lawsuit and the results obtained. They both noted that the hourly rate claimed by the MPF attorneys was extremely low.

The chancellor found that the hours spent and the rates charged by the attorneys were reasonable but that the upper limit of recovery of fees would be the total “economic benefit” to MPF. He found that amount to be $166,148 and awarded that amount, with interest, as attorneys’ fees. That figure was obtained by subtracting the Lanes’ $233,852 contingent claim from the $400,000 lien. It is from this finding that both parties appeal.

The question below was what would be a reasonable fee for the MPF attorneys, but the only real issue presented here is whether the chancellor was correct in his determination that the fee should be limited to $166,148, which he found to be the total economic benefit to MPF. We find that the chancellor erred in holding that the fee is limited to $166,148.

The American rule and the rule observed in Arkansas are that attorney fees are not chargeable as costs in litigation unless specifically permitted by statute. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); Trustees v. Greenough, 105 U.S. 527 (1882). An exception has been created to that rule where a plaintiff has created or augmented a common fund or where assets have been salvaged for the benefit of others as well as himself. Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980); Trustees v. Greenough, supra. Note, The Counsel Fee in Stockholder’s Derivative Suits, 39 Columbia L. Rev. 784 (1939). In such a situation, to allow the others to obtain the full benefit from the plaintiffs efforts without requiring contribution or charging the common fund for attorney fees would be to enrich the others unjustly at the expense of the plaintiff. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1966). This exception is commonly applied in shareholder derivative suits. Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970);Silberman v. Bogle, 683 F.2d 62 (3rd. Cir. 1982). Under the “substantial benefit” rule, which is a variation of the common fund doctrine, the successful plaintiff in a derivative action may be awarded attorneys’ fees against the corporation if the corporation received “substantial benefits” from the litigation even where the benefits were not pecuniary and no fund was created. Fletcher v. A. J. Industries, 72 Cal. Rptr. 146 (1968).

The judge specifically found that the $233,852 owing to the Lanes and LPI was “a contingent claim in this proceeding .... subject to offsets for all judgments, interest, costs, attorneys’ fees and other awards against MPF or the Lanes and/or LPI arising out of these proceedings (not otherwise satisfied by the assets of MPF) as determined by the Court.” (Italics supplied.) Therefore the chancellor was wrong in determining that the Lanes’ contingent claim should be satisfied before the claim for attorneys’ fees. The Millsaps’ derivative action preserved $400,000 plus interest in corporate assets. This preservation of assets benefitted the corporation. See Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934). Fletcher’s Cyclopedia Corp., § 6045 (Rev. Ed.). This fund would not exist at all if it had not been defended from claims made by the Lanes. This was more than a simple breach of contract action, as the Lanes contend; the chancellor found that the Lanes had breached their fiduciary duties to MPF. The chancellor also specifically found that the claim for attorneys’ fees was reasonable. Since over $542,000 as assets were preserved, the claim should be paid.

The Lanes, by cross-appeal, would like to severely limit the attorneys’ fees. They suggest that the recovery must be limited to a percentage of half of the “economic benefit,” since each of the parties own half of the corporation. No one claimed at trial that this was not a derivative lawsuit; that is, that the Millsaps, as stockholders, were proceeding in behalf of the corporation for its benefit. The attorneys were conservative in the fees charged and the lawsuit was won against strong resistance over a protracted period. The attorneys should not be forced to settle for less than the amount they are due and that which the corporation can pay. Since the claimed fee of $422,977.50 was found to be reasonable, and since the corporation has the money to pay it, it was error to reduce the fee.

The judgment for attorneys’ fees is modified. A judgment for $422,977.50 with interest will be entered effective March 27, 1985, the date from which the order was appealed.

The Lanes also argue that the chancellor erred awarding over $30,000 in costs after the original bill for costs was approved. They state that this action violates “applicable case law.” No such case law is presented. Since the argument is unsupported by authority or persuasive reasoning, we will not consider it. Thomas v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

Affirmed as modified.

Purtle, J., not participating.

George Rose Smith, J., dissents.


text:
    James H. WILLIAMS, Jr. v. STATE of Arkansas
    CR 84-30
    705 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Law Office of Jim Lyons, by: Scott Emerson, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

James H. Williams, Jr., was convicted of the capital felony murder of Earl Johnson of Jonesboro, Arkansas, and sentenced to life imprisonment without parole. On appeal he makes four procedural arguments which we find meritless.

Williams first argues that the statement made by him at the police station was inadmissible at trial because it was made in the absence of counsel, a violation of the Sixth Amendment to the United States Constitution. A pretrial hearing was held and the trial court ruled that the statement was voluntarily made and admissible; however, the state did not introduce the statement; the defense did. The record reflects how this occurred:

Defense Counsel: Do you want me to go ahead? The defense is offering or intends to offer the confession taken from the defendant, through Mr. Dickie Howell at the Craighead County Sheriff’s office.

The Court: The State, having objected to the procedure outlined by the defense, the matter was brought to the Court’s attention at a bench conference. The Court admits it being somewhat perplexed by the offer of proof in this fashion, and feels that perhaps a hearsay objection would be proper, inasmuch as the State could foreseeably be precluded from cross-examining the defendant Williams.

However, I can see no other basis for excluding otherwise relevant evidence, and therefore will allow the defendant to play the tape through the officer taking the statement or other officers involved . . .

Defense Counsel: All right. Officer Howell, on May the 30th, 1983, did you take a statement from Mr. James Williams?

Yes, sir, I did. Officer Howell:

All right. And did you record that statement? Defense Counsel:

Yes, sir, I did. Officer Howell:

Your Honor, at this time, I would like to play it before the jury. Defense Counsel:

Just a minute. The Court:

(Bench conference; out of hearing of the jury.)

For the record, the defense attorney states he is waiving any objection, based on voluntariness of this confession. Defense Counsel:

The previous hearing, having been had before the Court where the question of voluntariness had been raised, the Court having ruled the confession to be voluntary. Now Mr. Lyons is attempting to introduce the statement which the Court will allow. As indicated for the record, the previous motion has been withdrawn, and he consents to it and agrees that it was voluntarily made. You may proceed .... The Court:

We ordered a rebriefing on this issue to be certain that any objections to the statement were waived. The record reflects there was a waiver. Williams waived any objections to the use of the statement by placing it in evidence. Spencer v. State, 285 Ark. 339, 686 S.W.2d 436 (1985); Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981). The reason for introducing the statement by the defense was obviously to exonerate Williams since his statement blamed the murder on Bobby Tippett, the codefendant. The defense attorney stated in his closing argument to the jury that the reason the state did not use the statement was because it was true — Tippett killed Johnson.

The second argument is the death qualified jury issue which we have repeatedly rejected. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

In conjunction with that argument, Williams asserts that the trial court applied the wrong standard in releasing certain jurors who had scruples against the death penalty. Williams contends the trial court should have inquired if these jurors could set aside their convictions in determining the guilt or innocence of Williams before a sentence would be considered. If so, Williams argues, the jurors should have been seated.

In Wainwright v. Witt, 105 S.Ct. 844 (1985), the United States Supreme Court clarified the standard to be used, which was pronounced in Witherspoon v. Illinois, 391 U.S. 510 (1968). The proper standard is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.

Since Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors. The trial court correctly decided that those excused jurors could not perform their duties, because they could not consider imposing a death sentence.

Williams finally argues that the trial court erred in refusing to order Bobby Tippett, the codefendant, to answer questions at the deposition. Williams requested the taking of Tippett’s deposition. The prosecutor did not object to the taking of the deposition, and the trial court granted the motion, provided Tippett and his attorney agreed. At the deposition, Tippett refused to answer any questions, invoking the Fifth Amendment. Williams then requested the trial court to order Tippett to answer the deposition questions. The trial court did not rule on the motion, because he had taken Tippett’s guilty plea under advisement.

Tippett had entered plea negotiations with the prosecutor. As part of the negotiations, the prosecutor agreed that none of Tippett’s testimony at Williams’ trial would be used against him. When the motion for the pretrial deposition was considered, the prosecutor agreed that any statement made by Tippett during the deposition would not be used against him. However, Tippett still refused to answer the deposition questions. Williams argues that the trial court erred by taking Tippett’s plea under advisement instead of sentencing him at that time. Williams argues that the trial court was attempting to insure Tippett’s testimony at his trial which would in effect undermine the discovery deposition granted by the court.

Williams claims the deposition was necessary because Tippett had given three different statements to the police and Williams needed to know which statement would be the basis of Tippett’s testimony at trial. However, the prosecutor at the pretrial hearing informed Williams which statement would be used at trial. Since Williams already knew which statements would be used at trial, Williams was not prejudiced at trial by Tippett’s refusal to answer the deposition questions and the trial court’s failure to compel Tippett to do so. We do not reverse for nonprejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in other objections abstracted for review.

Affirmed.

Purtle, J., not participating.