author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Dale GRADY v. Norma GRADY
    88-4
    747 S.W.2d 77
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      W.J. Walker and Frank A. Poff, Jr., for appellant.
    No brief filed for appellee.
   Steele Hays, Justice.

In this divorce case, Dale Grady has appealed from the chancellor’s award of alimony and child support. Dale and Norma Grady were married in 1964. Six children were born of the marriage, with ages ranging from 21 to 10. Four minor children are still living at home.

Dale Grady received his law license in 1974. He had been working as a staff attorney for the Department of Correction but resigned from that position on March 28, 1986, when his gross income was approximately $1900 a month. He testified that at the time he resigned he and his wife were having serious marital problems, and two months later he moved out of the home.

When Mr. Grady moved out he began a solo law practice. He estimated his net income at $81 a week by totaling his gross receipts from June through November, 1986, subtracting his overhead, and dividing the balance by the number of weeks. Two days before the divorce hearing in November 1986 Mr. Grady filed for bankruptcy.

Norma Grady was forty-five years old at the time of the divorce. She had an eighth grade education and no special training. She spent most of the marriage as a housewife caring for the children. In March 1986 she began work cleaning houses and earned from $ 16 to $45 per week depending on the work. She had no savings or other assets.

Mr. Grady filed for divorce in August 1986, and a hearing was held in November 1986. The court granted the divorce and awarded custody of the children to Mrs. Grady. Mr. Grady was ordered to pay $600 a month child support and 80 % of the minor children’s medical and dental bills. He was ordered to pay $10 a year alimony.

I

Child Support

Appellant first argues the chancellor erred in setting child support at $600 a month when his earnings at the time of the divorce were $81 a week. He contends the court cannot base a support award on a party’s earning capacity when in fact his earnings at the time of the divorce are considerably less.

There are circumstances under which it is appropriate to order child support based on a party’s earning capacity rather than on actual earnings. 27C C.J.S. Divorce § 675 (1986); Annot., Child Support Exclusiveness or Adequacy, 27 A.L.R. 4th 864 (1984). While in some jurisdictions the consideration of earning capacity is provided for by statute, in at least one jurisdiction it is the law irrespective of statute. See In Re Marriage of Johnson, 134 Cal. App. 3d 159, 184 Cal. Rptr. 444 (1982).

Under our statutes, while there is no specific provision identifying “earning capacity” as an element to be considered when ordering child support, it is nevertheless recognized as a factor. In determining the amount to be contributed for child support, the chancellor should consider the needs of the children, the resources of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects and any other factors that will aid the court in reaching a just and equitable result. Barnhard v. Barnhard, 252 Ark, 167, 477 S.W.2d 845 (1972); Perkins v. Perkins, 15 Ark. App. 82, 690 S.W.2d 356 (1985); Guffin v. Guffin, 5 Ark. App. 83, 632 S.W.2d 446 (1982).

We have not dealt with this issue directly, but elsewhere it has been held that the court may consider the fact that a supporting spouse voluntarily changes employment so as to lessen earning capacity and, in turn, the ability to pay alimony and child support. Camp v. Camp, 269 S.C. 173, 236 S.E.2d 814 (1977). A court may in proper circumstances impute an income to a spouse according to what could be earned by the use of his or her best efforts to gain employment suitable to his or her capabilities. Klinge v. Klinge, 554 S.W.2d 474 (Mo. 1977).

Determining the proper circumstances is sometimes difficult.

On the one hand, the courts must not unduly interfere with the personal lives and career choices of individuals merely because they have been involved in a divorce. On the other hand, because there has been a divorce, the courts are thrust into the middle of the parties’ personal lives in order to protect the interests of the minor children who are also unwilling participants in the divorce. [Rohloff v. Rohloff, 161 Mich. App. 766, 411 N.W.2d 484 (1987).]

A supporting spouse does not have total discretion in making decisions which affect the welfare of the family, if the minor children have to suffer at the expense of those decisions. Id. Deciding to establish one’s own business or to voluntarily assume new financial burdens cannot take unquestioned precedence over the duty owed to a dependent family. Weisner v. Weisner, 238 Pa. Super. 488, 362 A.2d 287 (1976); Henderson v. Lekvold, 95 N.M. 288, 621 P.2d 505 (1980); Klingev. Klinge, supra; Rohloff v. Rohloff, supra.

This is not to say there are not situations where an income reduction is reasonable and justifiable under particular circumstances. See, e.g., Roberts v. Bockin, 315 Pa. Super. 52, 461 A.2d 630 (1983); Shaffran v. Shaffran, 217 Pa. Super. Ct. 856, 270 A.2d 251 (1970). But the court must judge the facts and circumstances of each case and when under appropriate circumstances an income based on earning capacity is attributed to a spouse, the reviewing court will not find error.

The amount of child support to be awarded, if any, rests in the discretion of the court granting the divorce and is to be determined from the situation of the parties. Perkins v. Perkins, supra; Ark. Code Ann. § 9-12-312 (1987); [Ark. Stat. Ann. § 34-1211 (Supp. 1985)]. The chancellor’s finding will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Mitchell v. Mitchell, 2 Ark. App. 75, 616 S.W.2d 753 (1981).

Here, appellant resigned from a job that was providing support for his family. No explanation was offered, nor any reason given to justify the drastic change in circumstances. The order for child support was made effective beginning the month after the hearing. The chancellor found appellant was a licensed attorney and had been employed in that capacity since 1974, that he was in good health and had the capability of earning sufficient income to pay $600 a month child support. The chancellor did not, however, find that appellant’s reasons for leaving gainful employment were proper and not to evade his responsibilities. For that reason we remand to permit the record to be amplified on that point, as well as on the current financial status of the parties.

II

Alimony

Since we are remanding we will discuss the remaining issue for the guidance of the litigants and the chancellor. Mr. Grady contends the alimony award of $10 per year was error, because it allowed the court to “reserve jurisdiction” and defer a decision on alimony to a later time. He relies on Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981). In Ford the chancellor made no alimony award but stated in the decree that he “declined to award alimony, but retained jurisdiction for the purpose of awarding alimony in the future should the needs of the defendant require modification of the decree.” On appeal the court of appeals affirmed the chancellor, but this court reversed the court of appeals and allowed alimony of $50 per month. The Ford court interpreted Ark. Code Ann. § 9-12-312 (1987) [Ark. Stat. Ann. § 34-1211 (Supp. 1985)] as requiring that the decree of divorce allow or disallow alimony at the time of the divorce, and not retain jurisdiction for the purpose of granting alimony in the future based on changed conditions. That provision reads:

When a Decree shall be entered the court shall make such order touching alimony of the wife or the husband and care of the children, if there be any, as from the circumstances of the case shall be reasonable ....

This court has sent mixed signals on the question whether a chancellor may enter a decree pursuant to which alimony may be made effective some time after the divorce has been entered. The statute makes it clear that the basic alimony decision is to be made when the divorce decree is entered. In Miller v. Miller, 209 Ark. 505, 190 S.W.2d 991 (1945), a claim for alimony was raised some months after the decree of divorce. We denied the claim because there was no provision for it in the decree. However, the opinion contained this language:

There was no language in the divorce decree of September 25,1944, reserving the question of alimony for subsequent disposition. When Mrs. Miller failed, either to have monthly payments of alimony provided in the decree of divorce, or to have the question of alimony reserved for further consideration, she allowed the decree to become res judicata on the question of alimony .... [Our emphasis.]

Yet in the Ford case we held the chancellor had no power to retain jurisdiction or to treat alimony as a matter “reserved for further consideration.”

It is inequitable to hold that a spouse who may be entitled to alimony is forever barred from receiving it because the spouse who should pay it cannot at the moment of entry of the decree. It is illogical to hold, as we do, that alimony may be raised or lowered upon a showing of changed circumstances but that the spouse who may have an obligation to pay alimony may not be made to do so when his or her circumstances permit it just because they did not permit it at the time the obligation was determined.

The answer to this problem lies in our holding here that, if either spouse is entitled to alimony, the chancellor must comply with the statute by making that decision when the decree is entered. If circumstances prevent the spouse who is to pay the alimony from being able to do so, then the court may recite that fact and decline to award a specific amount. Thereafter, if circumstances change in a way that will permit the payment of alimony, the party who has been determined to be entitled to it may petition the court. By following this procedure, the court will have complied with the statute without resorting to the sort of subterfuge inherent in awarding a nominal amount.

Except for the appellant’s present financial circumstances, due in part to the number of dependent children, alimony would be appropriate from a number of considerations. See Broyles v. Broyles, 268 Ark. 120, 594 S.W.2d 17 (1980), for a detailed discussion of factors bearing on alimony. There is ample cause to assume that appellant’s prospects should improve, whereas, there is little likelihood that appellee’s will change materially. We can conceive of no reason why, if appellant’s circumstances improve materially, the court should not be free to consider alimony.

REMANDED.

Hickman, J., and Glaze, J., dissent.

Tom Glaze, Justice,

concurring in part; dissenting in part. I dissent from that part of the majority’s decision that affirms the chancellor’s award of alimony in the sum of $10.00 per year. Obviously, the factors that justify an award of alimony were not existent here, see Alexander v. Alexander, 241 Ark. 741, 410 S.W.2d 136 (1967), or else the chancellor would have awarded a reasonable amount. The sole reason for the $10.00 award was to allow the chancellor to retain jurisdiction of this cause for the purpose of making an award of alimony in the future. The chancellor’s action was clearly contrary to Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981), where this court held that our statutory law requires the divorce decree to allow or disallow alimony and that the decree cannot retain jurisdiction for the purpose of allowing or disallowing it in the future based on changed conditions. The majority court now chooses to overrule Ford, and I disagree. Because a court’s award of alimony is dependent upon statutory law, my view is that the Ford holding was correct, since it was based upon this court’s clear interpretation of Ark. Stat. Ann. § 34-1211 (Supp. 1985), now compiled as Ark. Code Ann. § 9-12-312 (1987). See Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985) (wherein court discusses statutory history for basis of alimony in Arkansas).

If the rule now is that the trial court may reserve the alimony question and leave it open for anytime in the future, that court surely needs to be required to give a reason for doing so. From my review of the record, I fail to see any reason for expecting that this appellant will ever be in a position to pay alimony. He became an attorney in 1974, and he apparently made as much as $22,800.00 per year, his gross earnings in 1985. Since June 1986, he has averaged $81.00 per week, and the parties are now in bankruptcy. The parties have four minor children, and their children have had medical and other problems, which pose a continuing stress on the parents in raising them. Undoubtedly, appellee is in desperate need, as is reflected by her doing maid work and receiving food stamps. Even apart from the financial strife involved, she testified to acts of physical and mental abuse. Nevertheless, none of these factors add up to awarding alimony, and based upon the parties’ history, an alimony award is not a realistic expectation for anytime in the foreseeable future. Thus, even if I could agree with the majority that a chancellor may reserve the question of alimony for the future, the power and authority to do so should not be unfettered and should not be extended to circumstances such as those we now have before us.

Hickman, J., joins in this opinion.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    S.L. HARVEY v. V.E. HARVEY
    88-35
    747 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      Wallace, Hamner & Arnold, for appellant.

      Dodds, Kidd, Ryan & Moore, for appellee.
   David Newbern, Justice.

This is a divorce case involving interpretation of our statute governing distribution of marital property. The decree does not state that the marital property is to be divided equally. It divides unequally the property mentioned. We agree with the appellant’s argument that the decree must be reversed because the chancellor did not state reasons for the apparent unequal division. On cross appeal, we reverse and remand the chancellor’s allowance of alimony.

Mrs. S. L. Harvey, the appellant, and Mr. V. E. Harvey, the appellee, owned a corporation, Harvey, Inc., which, in turn, owned two stores called “Berry Patch.” Mr. Harvey owned ninety-nine percent of the corporate stock, and Mrs. Harvey owned the remaining one percent. The chancellor found that the business was worth $400,000, and that seventy percent was attributable to the store located in North Little Rock and thirty percent to the store in Little Rock. It was undisputed that this commercial property was marital property. The decree ordered that, in exchange for her interest in the corporate stock, Mrs. Harvey would receive the assets of the Little Rock store which she had been managing.

1. Marital property

Our statute governing distribution of property upon divorce provides that marital property is to be divided equally unless it would be inequitable to do so. Ark. Code Ann. §9-12-315 (Supp. 1987). If it is concluded that the marital property is to be divided unequally, subsection (a)(1)(B) of the statute provides that the court must state its reasons in its order. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). Additionally, subsection (a)(4) provides that when corporate stock comprises part of the marital property the court may award it to one party on condition that half “the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.”

The chancellor had authority to distribute all stock in the corporation to Mr. Harvey. However, given the imbalance created by the award to Mrs. Harvey of the Little Rock store worth thirty percent of the value of the parties’ main marital asset in exchange for her one-half interest in that asset, we must examine the decree to ascertain if she was awarded other marital property to make up for the disparity.

The decree mentions several other items of marital property, including twenty acres of “open land,” shares of stock in Sears and ITT, a certificate of deposit, the marital residence, and furniture. All these items were divided equally or sold with the proceeds to be divided equally. In addition, the court awarded each party his or her individual retirement account. A collection of guns and a country club membership which were marital property were awarded solely to Mr. Harvey. No other marital property was awarded solely or in greater proportion to Mrs. Harvey to account for the disparate distribution of Harvey, Inc.

The decree mentions that Mrs. Harvey had been the recipient of gifts of furs and jewelry from Mr. Harvey which she would retain as her property, and it mentions a $40,000 gift to Mrs. Harvey from an aunt and states that the latter asset would be considered by the chancellor in other orders to be made.

Mr. Harvey refers to testimony about the value of the furs and jewelry, the fact that Mrs. Harvey received store inventory from Mr. Harvey which she did not pay for, sale of a car by Mrs. Harvey, a boat belonging to the corporation which is in Mrs. Harvey’s possession, and cash in various accounts. He argues that we should affirm because these items more than make up for the disparate distribution of Harvey, Inc. We might agree with the argument had the chancellor’s decree divided any of these assets in a manner favoring Mrs. Harvey or, with respect to other than the gifts, ruled Mrs. Harvey owned them outright. However, in the absence of such a division or explanation of the unequal division, we must reverse.

Mrs. Harvey argues it was error to award sole ownership of the guns and country club membership to Mr. Harvey and that the chancellor should have made a finding whether life insurance policies and Mr. Harvey’s J. C. Penney pension were marital property. We assume the chancellor will make these decisions upon remand and, if sole ownership of assets is awarded, the decree will reflect compensation or explanation.

2. Alimony

In awarding alimony to Mrs. Harvey of $1,000 per month, the chancellor noted that it was “less than 20 % of the discrepancy between the potential profit of the McCain Mall [North Little Rock] store and the University Mall [Little Rock] store.” The decree also states that the alimony is necessary for the support of Mrs. Harvey and is not to be considered a distribution of marital property or in lieu of marital property.

The chancellor can make an award of alimony that is reasonable under the circumstances. Ark. Code Ann. § 9-12-312 (Supp. 1987). The purpose of alimony is to rectify economic imbalance in earning power and standard of living in light of the particular facts in each case. The primary factors to be considered are the need of one spouse and the other spouse’s ability to pay. Sutton v. Sutton, 266 Ark. 451, 587 S.W.2d 67 (1979); Dean v. Dean, 222 Ark. 219, 258 S.W.2d 54 (1953). The award of alimony is a matter which addresses itself to the sound discretion of the chancellor, and the award will not be reversed absent an abuse of discretion. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

For his cross appeal, Mr. Harvey argues alimony should not have been awarded. He recites Mrs. Harvey’s testimony that her living expenses were $3,500 per month and contends that her salary of $2,361, when combined with potential income from property she acquired as a result of the decree, are sufficient for her support.

After the Harveys were married in 1956, Mrs. Harvey worked for a year or two until she quit her job to raise children. Mr. Harvey testified that some of the time she worked was while he was in school. Mr. Harvey had a twenty-year career with J. C. Penney, and apparently some time with Sears. The chancellor could reasonably have concluded that during the time Mrs. Harvey was a homemaker Mr. Harvey was acquiring education and experience which now give him greater earning power than Mrs. Harvey.

While we would usually affirm an award of alimony under these circumstances, we reverse and remand this one. The chancellor’s order says the award was not a distribution of marital property or given in lieu of such a distribution, but it then refers to the discrepancy in income which will result from the difference in profit potential between the two Berry Patch stores. Reversal of the alimony award will give the chancellor appropriate flexibility in reconsidering the distribution of marital property if she chooses to do that rather than readopt the unequal distribution with an explanation as the statute requires.

Reversed and remanded on appeal and reversed and remanded on cross-appeal.


text:
    INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, et al. v. Jerry HUDSON, et al.
    87-222
    747 S.W.2d 81
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988
    [Rehearing denied April 18, 1988.]

      Hatfield, Robinson, Staley, Marshall, Jordan & Shively, by: Scotty Shively, for appellants International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL and George Clark.

      Youngdahl & Youngdahl, by: Jay Thomas Youngdahl and Chad Farris, for appellants Wilford W. Banks, Jim Lamb, Ed Taylor, Ronnie E. Crider, Tommy Guzman, and A.C. Lucas.

      House, Wallace & Jewell, P.A., by: J. Bruce Cross, for appellant/appellee Sanyo Manufacturing Corp.

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellees.

      Glaze, J., not participating.

   David Newbern, Justice.

This appeal is from an order certifying a class action. The appellees, who are non-union salaried and hourly employees of Sanyo Manufacturing Corp. in Forrest City, sued the appellants, the International Union of Electrical, Radio and Machine Workers, and their Local 1106. The allegations were that the defendant unions were responsible for striking picketers who prevented plaintiff class members from entering the Sanyo plant to work and that the unions were thus liable for personal injuries and property damage sustained by plaintiff class members. The complaint asserted it was brought on behalf of the named plaintiffs and other employees similarly situated.

After a hearing, the trial judge certified the action as a class action pursuant to Ark. R. Civ. P. 23, and his order described two classes:

(a) All salaried and non-union hourly employees who allegedly were deprived of the right to work at Sanyo Manufacturing Corporation on October 7, 8 and 9, 1985 due to the plant closing.
(b) All salaried and non-union hourly employees receiving motor vehicle and/or personal damages when crossing or attempting to cross the striker picket line during the Sanyo strike on October 7, 8 and 9, 1985.

The unions make four arguments: (1) the trial court abused its discretion in certifying the class action, (2) the number of persons seeking relief was too small to meet the requirement of Rule 23, (3) there were not predominant common questions of law or fact as required by the rule, and (4) a tort action should not be allowed to proceed as a class action. We hold there was a sufficient showing of compliance with the requirements of Rule 23 and that the trial court did not abuse his discretion in certifying a class action. We find no reason to hold that a tort action may not proceed as a class action. Thus, the order of the trial court is affirmed.

On October 7,8, and 9,1985, members of the unions went on strike at the Sanyo plant in Forrest City. Seven Sanyo employees brought this action against the unions, and some named union members, claiming loss of pay on days when the plant was closed because of the strike. Some of the plaintiffs also claimed damages for personal injuries and property damage sustained when some of the plaintiffs crossed, or attempted to cross, the picket line.

A hearing was held in response to the plaintiffs’ request that the action be certified as a class action. Jerry Hudson, the supervisor of hourly personnel at Sanyo, testified about the strike and the accompanying violence which he was attempting to film with a video camera at the plant beginning October 7. He testified that there were some 2000 persons employed at the plant. With the exception of some 200-250 non-union hourly employees, all of those who got in were salaried employees. Mr. Hudson presented affidavits of thirty-four employees who had suffered property damage while attempting to drive their vehicles into employee parking lots. He also presented petitions signed by thirty-five employees who certified that they had been “affected by the conduct of the defendants in such manner as to qualify them as a member of the class described in the complaint.”

Jack Shands, industrial relations manager at the Sanyo plant, testified that at the beginning of the strike, the company plan was to conduct minimal production so that any salaried or hourly employee would have work to do if he or she showed up. On October 7, approximately 450 employees made it through the picket line. However, apparently before the night shift on that date, the plant was closed because of the risk to employees attempting to make it through “the crowd.” It was the intent of the management to get an injunction to move the strikers away from the parking lots where the violence was occurring.

Whether salaried or hourly, only the employees who came to work on October 7th were paid with the exception of some salaried employees who may have been owed paid leave. Mr. Shands presented a list showing that twenty-one hourly employees were paid during the time the plant was closed. It appears that nearly all of the salaried employees were paid during this period.

Bill Runyan, an insurance adjuster, testified that his company was employed by Sanyo to make damage appraisals on October 7. He and two fellow adjusters made seventy-three damage estimates which included damages to forty-two automobiles totaling $23,601.20. He said he was told that the damages had occurred on October 7.

1. Abuse of discretion

Independently of the issues of numerosity, common question, and whether a tort may be the subject of a class action, the unions assert the trial court abused its discretion in certifying a class action. They contend that the trial court should have recognized the traditional reluctance of this court to permit the certification of classes and refused to certify this one. The unions have good reason for their position, as we have not been clear in the interpretation of Rule 23.

Drew v. First Fed. Savings & Loan Ass’n, 271 Ark. 667, 610 S.W.2d 876 (1981), was the first of six significant cases in which we have considered whether it was proper to certify a class action pursuant to Rule 23, which was adopted in 1979. The party seeking class certification claimed that First Federal was committing usury and extortion by requiring a 1 % mortgage assumption fee. There was a showing that First Federal had treated all persons who had assumed mortgages held by it alike, but there was no showing that there might not be different defenses with respect to each mortgage assumption contract. We noted that in some cases First Federal might be able to prove that the effort involved in permitting the assumption would wholly justify the fee, and it should be allowed to raise that defense individually. In our general discussion of Rule 23 and class actions, we recognized that, prior to the adoption of the rule, we had not favored class actions. We cited Ross v. Ark. Communities, 258 Ark. 925, 529 S.W.2d 876 (1975), in which we had held that, under our superseded class action statute, a party seeking class certification had to show that there were common questions of law and fact to be decided. We noted that the new rule had liberalized that aspect of the matter by requiring only a common question of law or fact. We also pointed out that under our rule the party seeking certification must be able to show that the class action “is superior to individual remedies for the fair and efficient adjudication of the controversy. Not merely efficient but also fair. . . .”271 Ark. at 670, 610 S.W.2d at 878. We recognized that the chancellor had “broad discretion” in the matter and held that she had not abused that discretion in refusing certification, noting that for the class action to be superior to individual actions, it must be shown to be fair not only to the mortgage assignees seeking the certification but to First Federal, the party against whom the class would proceed.

Our second decision under the rule was City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981), in which we upheld, upon cross appeal, the trial court’s decision that it had not been shown that the number of potential class members was sufficiently large to make other means impracticable. The potential class consisted of only seventeen identifiable members.

In Ford Motor Credit Co. v. Rogers, 285 Ark. 64, 685 S.W.2d 145 (1985), we denied a writ of prohibition which would have prevented a chancellor from trying a case she had certified as a class action. Ross Nesheim contended Ford Motor Credit had charged usurious interest on his car purchase contract, and on every other auto finance agreement it had written since the adoption of Amendment 60 to the Arkansas Constitution, and that the named plaintiffs should be allowed to sue for themselves and others similarly situated who had been charged usurious interest. Ford Motor Credit argued that the case could not constitutionally be tried as a class action because our rule does not provide for mandatory notice to potential class members. We held that Ford Motor Credit had no standing to raise the issue on behalf of the potential class members. While that holding has no significance in this case, the lack of a notice provision in our rule may portend future problems, and it should not be ignored in any general review of our interpretation of the rule.

The order certifying Nesheim’s claim as a class action was thereafter appealed, and in Ford Motor Credit Co. v. Nesheim, 287 Ark. 78, 696 S.W.2d 732 (1985), we considered its merits. We first noted that although the chancellor had broad discretion in the matter, it was not unlimited discretion. We then compared Nesheim’s claim to that of Drew against First Federal. We found similarities in that Ford Motor Credit would have varied defenses against the class members and setoffs and at least one counterclaim against one of the members. We disapproved of the chancellor’s attempt to limit the class to persons who were not delinquent in their payments to Ford Motor Credit on the ground that disputes over delinquency were sure to arise. We noted that the litigation was, like that in the Drew case, sure to splinter into a number of cases posing serious manageability problems. We said we were unable to ascertain a “willing class of litigants” of whose claim Nesheim’s was typical and that a class member who might not want to sue the company should not be “made an unwilling litigant.” Finally, we could find no prejudice to anyone in refusing to certify the class and noted our unwillingness to resolve doubts in favor of class actions and that our rule and the statute it supplanted had been construed strictly in the Drew and Ross cases, respectively.

In Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986), realtors and property owners in Hot Springs Village claimed that the lease of a gatehouse to Cooper Communities, Inc. (Cooper) was invalid and that Cooper was engaged in an unfair trade practice because it used the gatehouse to sell lots in the village, thus gaining an unfair advantage over other would-be sellers. Sarver, the named plaintiff, presented 120 affidavits of owners saying they wanted the relief sought which was cancellation of the gatehouse lease. The chancellor certified the class, and Cooper appealed. We upheld the certification, citing the Drew case for the proposition that the chancellor has, again, “broad discretion” to decide whether a class action is proper. We said that the validity of the lease was the paramount issue in the case, and the certification was proper.

The most recent case is Arkansas Louisiana Gas Co. v. Morris, 294 Ark. 496, 744 S.W.2d 709 (1988). The chancellor certified as a class of plaintiffs persons who had granted “fixed price” mineral leases to Arkansas Louisiana Gas Co. (ArkLa). The complaint relied upon a number of theories of relief, including the remedy of reformation based on mutual mistake, and estoppel. ArkLa argued that in order for any of the leases to be affected, the individual lessor would be required to show reliance or mistake. The plaintiffs argued they should be certified as a class as they had all been treated the same by ArkLa in that their fixed price leases had been ignored and they had been paid varying rates of royalties. The common question was the validity and effect of the fixed price leases. We said:

The appellants [ArkLa] rely primarily on the case of Ford Motor Credit Company v. Nesheim, .... In Nesheim the chancellor granted a conditional class action. We reversed that decision primarily because the defenses of mutual mistake, waiver, estoppel, and set off pled by the defendant as well as the defendant’s possible counter claims would splinter the action into possibly 6,000 individual cases. The foreseeable problems of manageability and the lack of prejudice to anyone by denying certification led us to conclude that the class action would not be superior to individual remedies.
Even if appellants are correct in this respect it does not require decertification of the class action because the appellees allege several other grounds for relief and other valid grounds for relief may be developed during the trial. Additionally, at this point in this case there are no indications of management problems or prejudice to any party in allowing the case to proceed as a class action. We are able to determine from the record a common question of fact that all “fixed price” lessors in the Cecil Field have been treated identically by the defendant lessees for a number of years. The parties have for some reason ignored the royalty amount fixed in the original leases and have paid and accepted royalties of different amounts. It is apparent that the common question of law in this case is whether the defendants’ course of conduct gives rise to a cause of action in favor of the “fixed price” lessors in the Cecil Field. There is no requirement that the trial court find that the facts as to each individual of a class action must in every respect be identical with that of all other members of the class. It is enough to show that a common question of law or fact predominates over other questions affecting only individual members.
If the trial court finds that the evidence presents individual questions of reliance or mistake, it could either defer those individual questions until after it disposed of the questions common to the class, or at any time prior to judgment, order an amendment of the pleadings eliminating therefrom all reference to representation of absent persons, and order entry of judgment in such form as to affect only the parties to the action and those who were adequately represented.
Although our class action rule is patterned somewhat after the federal rule, there is a considerable difference in application. The federal rule leans toward allowing class actions whereas our position tends to discourage class actions if the matter can be handled by individual action. But in Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986) and Drew v. First Federal Savings & Loan Association of Fort Smith, 271 Ark. 667, 610 S.W.2d 876 (1981), we held that in determining the appropriateness of a class action the trial judge has broad discretion. From the record before us we are unable to say that the chancellor abused his discretion in declaring this to be a proper class action. [294 Ark. at 498-500, 744 S.W.2d at 710-711.]

The two cases that stand out in this review are the Nesheim and Morris cases. The Nesheim case is the only one in which we have disapproved the trial judge’s action with respect to certification. In the Morris case there was just as much reason to disapprove the certification as in the Nesheim case, but we refused to do so. In the Nesheim case we relied on our tradition of refusing certification and upon fear of the management problems which might occur if the action were to splinter. In the Morris case we relied on our statements about the broad discretion of the judge, noting that perhaps management problems could be handled by the trial judge when they arose, even if that required decertification at some point.

a. Tradition

There is no need to go into the development of the class action from the old equity bill of peace remedy. A fine treatment can be found in 7A, C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure, §§ 1751-1753 (1986). Fed. R. Civ.P. 23 is the culmination of that development. In the Drew case, we noted that our Rule 23 did not copy the federal rule but that, in Rule 23(a), we copied our superseded, 100-year-old statute, and in subsection (b) we copied only a little of the federal rule.

While it is true that subsection (a) of our rule differs from that of the federal rule, the difference is one of language only. Both set out the same basic requirements for a class action. Subsection (b) of our rule, like that of the federal rule, sets out the prerequisites in addition to those found in subsection (a). Our subsection (b) is taken directly from subsections (b)(3) and (c)(1) of the federal rule. The parts of the federal rule omitted have to do with specifying further the kinds of actions which may be certified and some procedural requirements, such as the one for mandatory notice to class members mentioned above. Nothing about the parts of the federal rule omitted from our rule seems to bear on the question of whether class actions are to be favored or not. It seems apparent that the spirit of the federal rule is to be found in our Rule 23 even if all the words are not. Our attempts to cling to our pre-rule tradition may have been inconsistent with the rule. Reporter’s Note 1. states the rule was based on a superseded statute which contained few procedural guidelines and that it does not change prior law. While the note is correct in stating that the rule, like the statute, has a paucity of procedural directions, we recognized in the Drew case that the law had been changed to “liberalize” the class action, at least in one respect. Use of it will obviously be more extensive if there need no longer be common questions of law and fact.

b. Broad discretion

Reporter’s Note 2. to Rule 23 recognizes the “broad discretion” given to the court to protect the rights of absent class members and points out there is similar discretion in the federal rule. While the broad discretion noted is ostensibly different from broad discretion to allow or disallow a class action, the two are related. If the court has broad discretion to protect the rights of absent class members, that power should be regarded as contributing significantly to the discretion the court has to permit class actions, as the inability to protect class members would be a major impediment. In the Drew case, just after our discussion of the chancellor’s decision that the class action was not shown to have been superior to other forms of relief and our reference to fairness discussed above, we said: “It is on this point that we cannot say the chancellor abused her ‘broad discretion’ (Note 2 to our Rule 23) in finding that the class action is not superior to other remedies.” Thus, beginning with the Drew case and through the Morris case, we have recognized that the “broad discretion” of the trial judge extends not only to the protection of the absent class members, but also to the question whether the class action should proceed.

c. Management

The language we have used about class actions “splintering” into separate cases requires examination in the context of Justice George Rose Smith’s language in the Drew case. We should never depart from his assertion that, in deciding whether a class is to be certified, we must consider whether certification would be fair to all the parties. Clearly, it would have been unfair in the Drew case to have held that First Federal could present its defenses to the claims of some but not all of the members of the plaintiff class. Just as clearly it would have been unfair to prohibit ArkLa from presenting all its defenses with respect to the leases in the Morris case. Just as clearly it would be improper for us to hold that the unions in the case before us now could not present all their defenses to the individual claims of the non-union members who are the members of the putative class. But to assume that any of these injustices will occur is to assume that the action will not be managed by the trial court.

By limiting the issue to be tried in a representative fashion to the one that is common to all, the trial court can achieve real efficiency. The common question here is whether the unions can be held liable for the actions of their members during the strike. If that question is answered in the negative, then the case is over except for the claims against the named individual defendants which could not be certified as a class action. If the question is answered affirmatively, then the trial court will surely have “splintered” cases to try with respect to the damages asserted by each member of each of the subclasses, but efficiency will still be achieved, as none of the plaintiffs would have to prove the unions’ basic liability.

Is that unfair? It is not unfair to the unions, as they will be able to defend fully on the basic liability claim, and they will have the opportunity to present individual defenses to the claims of individual class members if their liability has been established in the first phase of the trial. They lose nothing. Would it be fair to the class members to require them to sue individually? The evidence so far shows that each putative class member has a claim that is too small to permit pursuing it economically. If they cannot sue as a class, the chances are they will not sue at all. We agree with the unions’ argument that the sole fact that the claims are small is not a reason to permit a class action, but it is a consideration which has appeared when other courts, as we must do, have considered whether the class action is superior to other forms of relief. See C. Wright, A. Miller, and M. Kane, supra, § 1779, n. 21, citing Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978), affirmed on other grounds, sub nom. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980); Werfel v. Kramarsky, 61 F.R.D. 674 (D.C.N.Y. 1974); and Buchholtz v. Swift & Co., 62 F.R.D. 581 (D.C. Minn. 1973).

We recognize that the trial court has substantial power to manage a class action even though the directions given in our Rule 23 are not as extensive as those given in the comparable federal rule. This power to manage the action contributes to the discretion we find in the trial court to determine whether a class should be certified. We conclude there was no abuse in this case.

2. Numerosity

Rule 23(a) provides, “Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.” The unions contend the court erred in finding this requirement to have been satisfied. As we have noted above, there is a common question, and that is whether the unions may be liable for the actions of the strikers. The issue is whether there is a question which is “one of common or general interest of many persons” or whether the parties are so numerous as to make it “impracticable to bring all before the court within a reasonable time.”

We find no error. In the Vogelgesang case we held that seventeen was not a sufficient number. In the Cooper case we held that 184 was enough. Although, as the unions point out, only thirty-five persons have indicated an interest in being class members by affidavit, that does not define the class or limit it. With respect to the property damage and personal injury subclass, we find testimony that seventy-three damage estimates were made. With respect to the wage loss subclass, we note the testimony that the Sanyo plant closed for two days, and that the hourly employees, generally, were paid only for the time they worked. The potential class thus consists of all non-strikers who lost work time, and thus pay, during the strike. From the figures given at the outset of this opinion one can see that this subclass consists of at least several hundred employees, and we can agree that there is a question of common or general interest to “many persons.”

3. Predominance

The unions argue that the single issue of their possible liability pursuant to the “mass action” theory may not be held to predominate over the individual claims of the purported class members. “Mass action” liability has been found and discussed in cases such as International Union v. Russell, 356 U.S. 634 (1958); Rainbow Tours v. Hawaii Joint Council, 704 F.2d 1443 (9th Cir. 1983); and Alabama Power Co. v. Local Union No. 1333, 734 F.2d 1464 (11th Cir. 1974). The theory espoused here is that a union may be responsible for the acts of its members on its behalf when violence erupts upon the attempt of non-strikers to enter a plant where the entrance is blocked by strikers.

On this point the unions cite the Drew case for the proposition that the court must find questions of both law and fact common to the class members. As noted above, that is opposite to the language of that case in which we recognized that only one or the other is required under Rule 23, and that was a change from the law as we espoused it in the Ross case. The only other case cited on this point by the unions is the Nesheim case. We agree with the unions’ assertion that if we were to follow our decision in that case we would probably have to reverse here. We were mistaken in the Nesheim case. There was the same sort of predominant common question there as the one which exists here. To the extent the Nesheim case is inconsistent with our holding here, it is overruled.

The issue of the possible liability of the unions permeates the claims and prospective claims of each member of the two subclasses. It clearly predominates the individual issues which may arise if the unions are held liable under the mass action theory. If the unions prevail on that issue, then only individual claims against individual persons will remain, and the class will have to be decertified.

4. Tort claims

The unions do not seriously argue that tort claims may never be the object of class actions. Rather, their point is that this case is not typical of the “disaster” cases in which class action suits have been allowed where one event, such as a plane crash, structural failure, or fire has been responsible for injuries to a class of persons. They contend that, if a mass action can be said to be responsible for the injuries suffered, it occurred over a three-day period and involved numerous persons and events thus presenting no common question.

We disagree with that argument. Other jurisdictions have permitted class actions where the wrong alleged was, for example, nuisance which was conducted by industrial defendants over a period of time in excess of three days and in which more than one defendant was named by the plaintiff class of homeowners, each of whom had a separate damages claim. Oakwood Homeowners Assn. v. Ford Motor Co., 77 Mich. App. 197, 258 N.W.2d 475 (1977). See also Burks v. Wymer, 307 S.E.2d 647 (W.Va. 1983).

The central question of the unions’ liability will be the focus of the class action. That can be decided with respect to the subclasses even though the alleged mass action was not an instantaneous event. Again, if they are held liable in general, the unions will be able to present any defenses they may have as the claims of the individual class members are presented thereafter, the only effect of the decision being that the individual class members will not have to prove, and the court will not have to decide, the general question of union liability in each case.

Conclusion

We take no pleasure in having to overrule a case as recently decided as the Nesheim case. However, we believe the critical decision occurred with our adoption of Rule 23, and we are just now fully recognizing it. While Fed. R. Civ. P. 23(b)(3) has not been the panacea hoped for by consumer advocates and others concerned with small claims, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), we have no doubt that our Rule 23(b) patterned upon it permits the certification in this case. The trial judge in this case could have refused to certify the action as a class action, and we might well have upheld him in that exercise of his broad discretion. Instead, he made the certification and tentatively scheduled the trial to begin in mid-June 1988 to continue until August 1, 1988. Obviously he intends to try each of the individual claims if the common question is decided in favor of the class. We are firmly convinced that justice will be well served by this approach, whichever way the common legal question is decided.

Affirmed.

Glaze, J., not participating.


author: Tom Glaze, Justice.

text:
    Julia L. HUGHES v. STATE of Arkansas
    CR 87-180
    746 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      William R. Simpson, Jr., Public Defender, Howard W. Koopman, Deputy Public Defender; by: Didi Harrison, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of the first degree murder of her son and sentenced to life imprisonment in the retrial of this case. This court previously reversed and remanded appellant’s earlier conviction because the trial court erred in admitting into evidence a statement the appellant gave officers after she had requested an attorney. Hughes v. State, 289 Ark. 522, 712 S.W.2d 308 (1986). In this second appeal, appellant contends that there was insufficient evidence of premeditation and deliberation to support her conviction of first degree murder. As part of her contention, she argues the jury erred in rejecting her insanity defense and finding the proof was insufficient to show her defective mental state or inability to commit the crime. Because these arguments were not raised before the trial court, we are unable to consider them on appeal.

This court has stated numerous times that we generally will not consider errors raised for the first time on appeal. Johnson v. State, 290 Ark. 46, 716 S. W.2d 202 (1986); Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). We have recognized certain exceptions to this rule as in death-penalty cases where this court will consider errors raised for the first time on direct appeal where prejudice is conclusively shown by the record and the court would unquestionably require the trial court to grant relief under A.R.Cr.P. Rule 37. See, e.g., Singleton, 274 Ark. 126, 623 S.W.2d 180. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we set out the death-penalty exception and others that this court will review for the first time on appeal, which include instances (1) where error is made by the trial judge without knowledge of the defense counsel, (2) where the trial court should intervene on its own motion to correct a serious error, and (3) where evidential errors affect a defendant’s substantial rights although they were not brought to the court’s attention. Id. None of these exceptions are applicable here.

In Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980), this court stated it would consider the question of sufficiency of the evidence to support a verdict, in criminal cases, when raised for the first time on appeal. After Ply, however, this court decided Wicks where we stated the general rule that an appropriate objection or argument must be made below for the issue to be considered on appeal. In listing the exceptions to that rule, the court did not mention the defendant’s failure to question the sufficiency of the evidence.

A review of some of this court’s cases decided after Wicks reflects that the defendant must raise the issue of sufficiency of the evidence below. For instance, we recently refused to consider an argument against sufficiency of the evidence to support appellant’s kidnapping conviction because the issue was raised for the first time on appeal. Johnson, 290 Ark. 46, 716 S.W.2d 202. Also, in Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1980), this court refused to address the appellants’ argument that there was insufficient evidence to support their conviction of class A felony kidnapping because the appellants failed to raise the matter before the trial court. See also Janes, 285 Ark. 279, 686 S.W.2d 783; Ballew v. State, 21 Ark. App. 215, 731 S.W.2d 222 (1987).

Because appellant raises the question of sufficiency of evidence for the first time on appeal, we affirm the judgment of the trial court.


text:
    Bobby A. MORAN and Wilbur Moran, Individually and as Parents and Next Friends of Chris Moran, A Minor v. ARKANSAS BLUE CROSS & BLUE SHIELD, INC.
    88-24
    746 S.W.2d 62
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      Mark S. Cambiarlo, P.A., for appellants.

      Gordon & Gordon, P.A., by: Allen Gordon, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s granting of the appellee’s motion for summary judgment dismissing one of the appellants’ causes of action, tort of bad faith, and their claim for punitive damages. We dismiss the appeal because there is no final appealable order.

The appellants’ suit against the appellee consisted of two causes of action: (1) breach of contract, and (2) bad faith failure to pay health insurance benefits. In their complaint, appellants prayed for $52,288.05 in damages for breach of contract plus interest and attorney’s fees and $2,550,000 in punitive damages for the tort of bad faith. The appellee moved for a partial summary judgment on the tort cause of action of bad faith failure to pay a claim. The trial court granted the partial summary judgment, finding that the appellee was a benevolent, nonprofit corporation and thus immune from tort liability. The trial judge, in dismissing the appellants’ tort claim, also dismissed their claim for punitive damages. In the judge’s letter to the attorneys, he stated, “this leaves us with the breach of contract claim, which will be tried if not settled.”

Because the appellants’ claim for breach of contract remains to be tried, there is no final appealable order in this case. See Ark. R. App. P. 2, see also Sevenprop Associates v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). Although the appellee failed to raise the issue of appealability in its brief, this court has held that such an issue is a jurisdictional one which we have the right and duty to raise on our own in order to avoid piecemeal appeals. Id. Accordingly, appellants’ appeal is dismissed.


author: Per Curiam.

text:
    Ray BROWN v. STATE of Arkansas
    RC 88-8
    745 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      James W. Haddock, for appellant.
    No response.
   Per Curiam.

Petitioner has filed for a rule on the clerk. However, we find that the motion is actually a motion for a belated appeal, and, treating it for what it really is, we grant the motion for a belated appeal.


author: Jack Holt, Jr., Chief Justice.

text:
    Carla Blakemore CARTON v. MISSOURI PACIFIC RAILROAD COMPANY
    87-262
    747 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988
    [Rehearing denied April 25, 1988.]

      J.R. Nash, for appellant.

      Herschel H. Friday, and Elizabeth J. Robben, for appellee.
   Jack Holt, Jr., Chief Justice.

The principal issue in this case is whether the White County Circuit Court, in dismissing appellant Carla Blakemore Carton’s complaint, erred in holding that she was not entitled to the benefits of Ark. Code Ann. § 16-56-126 (1987) [formerly Ark. Stat. Ann. § 37-222 (Supp. 1985), and commonly referred to as the “saving statute”] in the refiling of her lawsuit, which had been dismissed on two previous occasions. We find the statute does protect Carton, and we reverse and remand for trial.

On November 25,1981, Carton filed a tort suit in the United States District Court for the Eastern District of Arkansas, Western Division, seeking recovery for injuries allegedly sustained on January 4, 1979, in Missouri Pacific’s North Little Rock terminal. Carton asked for and obtained a voluntary nonsuit on February 23, 1984.

On April 17, 1984, she refiled her complaint in the same court. On July 16, 1985, the court, on motion of the defendant, dismissed the suit with prejudice for lack of diversity finding that she was not a citizen of Arkansas at the time that she had filed either complaint. The court also found that she had fraudulently attempted to manufacture diversity jurisdiction, and therefore was not entitled to the benefits of Ark. Code Ann. § 16-56-126. The Eighth Circuit Court of Appeals affirmed the dismissal based upon lack of diversity, however, it directed the district court to enter a dismissal without prejudice. The district court entered this order on February 19, 1987.

On April 23, 1987, Carton refiled the suit in the Circuit Court of White County. Missouri Pacific filed a motion to dismiss on the grounds that Carton’s claim was barred by the statute of limitations. The circuit court granted this motion finding that the claim was barred by the three year statute of limitations provided for in Ark. Code Ann. § 16-56-105 (1987), formerly Ark. Stat. Ann. § 37-206 (Repl. 1962), and that Carton’s claim was not “saved” from the statute of limitations by the terms of Ark. Code Ann. § 16-56-126. In addition, the court held that Ark. R. Civ. P. 41(a) required that the second dismissal in federal district court be treated as an adjudication on the merits, which barred Carton from further litigation of her claim. Carton contends that the court erred in both its findings.

We first address the Rule 41(a) issue. In its brief on appeal, Missouri Pacific concedes that the circuit court erred in holding that the dismissal of Carton’s second complaint in federal court for lack of subject matter jurisdiction operated as an adjudication on the merits under Rule 41(a). We agree. The circuit court’s ruling was incorrect. In Cory v. Mark Twain Life Ins. Co., 286 Ark. 20, 688 S.W.2d 934 (1985), we held that where one of two dismissals is on the motion of the defendant and not the plaintiff, as in the instant case, Rule 41(a) is not applicable.

Carton also contends that the court erred in holding that she was not entitled to the benefits of Ark. Code Ann. § 16-56-126 (1987). This statute provides in pertinent part as follows:

If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him the judgment is arrested, or after judgment for him the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed. . . .

Ark. Code Ann. § 16-56-126 permits a plaintiff, who commences a suit within the applicable statute of limitations, which is subsequently dismissed for lack of subject matter jurisdiction, to refile the same action within the period of the “saving statute.” See Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974). For the purposes of the statute, a dismissal of a complaint on defendant’s motion is the same as a nonsuit. Norm Co. v. Harris, 197 Ark. 124, 122 S.W.2d 532 (1938). See also Lubin v. Crittenden Memorial Hospital, 288 Ark. 370, 705 S.W.2d 872 (1986); State Bank v. Magness, 11 Ark. 343 (1850).

On November 25, 1981, Carton commenced the present tort action in federal district court within the applicable three year statute of limitations of Ark. Code Ann. § 16-56-105. After taking a nonsuit, she refiled the suit in district court within one year, as required by § 16-56-126. The second action was dismissed on motion of the defendant without prejudice. Since she commenced the present suit in White County Circuit Court within one year of the second dismissal without prejudice, she is entitled to receive the benefits of § 16-56-126 and continue her lawsuit. Accordingly, the trial court erred in dismissing her complaint.

Missouri Pacific asserts that Carton should not be allowed to take advantage of the “saving statute” because she fraudulently attempted to manufacture diversity jurisdiction in district court by misrepresenting her citizenship. Since there is no evidence of misrepresentation in the record, absent the district court’s findings, we do not consider this argument. Because the district court was without subject matter jurisdiction, its judgment is without validity and has no force as evidence. Mitchell v. Village Drainage Dist., 158 F.2d 475 (8th Cir. 1946); see also Greenstreet v. Thornton, 60 Ark. 369, 30 S.W. 347 (1895). If the court’s judgment has no force as evidence, it necessarily follows that its findings have no evidentiary value.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    CITY OF SPRINGDALE v. Timothy P. JONES
    87-321
    747 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Harper & Blocker, P.A., by: Jeff C. Harper, for appellant.

      E. Kent Hirsch, P.A., by: E. Kent Hirsch, for appellee.
   Darrell Hickman, Justice.

The City of Springdale is located primarily in Washington County, Arkansas, but its city limits extend into adjacent Benton County. The question is whether the municipal court of the City of Springdale has jurisdiction over criminal offenses committed in Benton County. The answer is no. The Arkansas Constitution prevents it.

The facts are not disputed. Timothy Jones was arrested for DWI in the city limits of Springdale, Benton County. This case was originally filed in Springdale Municipal Court, located in Washington County. Evidently the voters of the city from both counties elect the municipal judge.

After Jones was convicted, he appealed to the Washington County Circuit Court. The judge stated he would consider an oral motion for a writ of prohibition which was made by Jones and granted. The judge concluded the municipal court had no jurisdiction over offenses occurring in Benton County. He was right.

Article 2 § 10 of the Arkansas Constitution provides in part:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed;

The City of Springdale asks us on appeal to solve the dilemma it finds itself in. We cannot consider a question raised for the first time on appeal and do not give advisory opinions. Mitchell v. First Nat’l Bank in Stuttgart, 293 Ark. 558, 739 S.W.2d 682 (1987); Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987).

Affirmed.


text:
    Samuel Edward DAVID v. STATE of Arkansas
    CR 87-157
    748 S.W.2d 117
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Chris E. Williams, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Samuel Edward David was convicted of capital felony murder for killing Danny Whitfield in exchange for money. He was sentenced to life imprisonment without parole. On appeal he raises seven points for reversal. We find no reversible error and affirm.

The first charge against David was nolleprossedin 1985. In 1986 the prosecutor refiled the charge against David. Vanessa and David Clift and Thomas Ivy were granted immunity in exchange for their testimony.

On the morning of September 30, 1983, Danny Whitfield was found dead on a Hot Spring County road. A tree was lying across the road in front of Whitfield’s truck, which was still running when he was found. Apparently Whitfield got out of his truck when he drove up to the tree and was shot two or three times at close range with a shotgun. There was evidence that Whitfield’s wife, Donna, paid the appellant to kill her husband. Vanessa and David Clift testified that the appellant had asked them to kill Whitfield. At first they agreed but later backed out. Appellant then borrowed a shotgun from Thomas Ivy and killed Whitfield himself. These are the facts as stated most favorably to the state. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 (1984).

Appellant’s first argument is that the trial judge should have recused since he signed a search warrant in the case. In Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), we held that Canon 3(C)(1)(a) of the Code of Judicial Conduct does not necessarily require a judge to recuse in such cases. The appellant has failed to demonstrate that the judge was wrong in failing to recuse.

Appellant’s second argument is that the trial court erred in allowing witnesses to testify regarding certain threats against the sheriff and other witnesses made by appellant. This evidence came out primarily on cross-examination of the sheriff, who was asked about restrictions on David’s visitation rights while he was in jail. The appellant opened the door to such testimony. See Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

It is also argued that it was wrong to admit evidence of prior bad acts in violation of Unif. R. Evid. 404(b). Appellant is apparently referring to testimony that he had stashed a stolen motorcycle, killed a man, and gone skinny dipping with a married woman. We do not address this argument because no objection was made to this testimony at trial. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellant’s third argument is that the case should have been dismissed because the charge against him was imperfect — he could not tell what he had been charged with. David was charged with capital murder in the language of Ark. Stat. Ann. § 41-1501 (1)(f) (Repl. 1977) [Ark. Code Ann. § 5-10-101(a)(6) (1987)] in that he “unlawfully and feloniously, pursuant to an agreement, cause [d] the death of Danny Whitfield in return for something of value. . . .” Two sections of the statute are pertinent to the hired killer. Section 41-1501 (1)(f) reads:

A person commits capital murder if: . . . pursuant to an agreement that he cause the death of another person in return for anything of value, he causes the death of any person ....

Section 41-1501 (1)(g) [Ark. Code Ann. § 5-10-101 (a)(7) (1987)] states:

A person commits capital murder if:. . .he enters into an agreement whereby one person is to cause the death of another person in return for anything of value and the person hired, pursuant to the agreement, causes the death of any person.

The language in the information against David closely followed that in § 41-1501(1 )(f), so David has no valid complaint regarding the charge. It was only necessary that the indictment name the offense and the party to be charged. Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); see also Ark. Stat. Ann. § 43-1006 (Repl. 1977) [Ark. Code Ann. § 16-85-403 (1987)]. The state is not required to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969). The defense may request that the state provide more details of the crime in a bill of particulars, which David did in this case. The state responded with this additional statement of the charge:

On September 30,1983, Danny Whitfield was shot with a shotgun while leaving his house to go to work. Michael Freeman found the body of Mr. Whitfield by his truck with a tree across the road in front of the truck. The authorities were notified, and Doyle Cook, Sheriff of Hot Spring County, Jack Ursery, and Finis Duvall of the Arkansas State Police investigated the shooting.
The State contends Donna Whitfield had an agreement with Sam David to kill Danny Whitfield in exchange for money. Donna Whitfield paid Sam David for killing her husband and some of the payments were made through Joe David, Sam David’s brother.

Between the information and the bill of particulars, David had enough information to prepare his defense, which is the purpose of a bill of particulars. Limber v. State, 264 Ark. 479, 572 S. W.2d 402 (1978); see also Ark. Code Ann. § 16-85-301 (1987). If he was not satisfied, he could have sought a supplemental bill of particulars. Ark. Code Ann. § 16-85-301 (b) (1987).

Appellant’s fourth point is that the state failed to produce items of discovery in violation of the due process clause of the constitution. The first item in issue is a statement of Bobby Joe Hollingshead taken by the state police. The state turned over one statement of Hollingshead to the defense but the defense sought another statement, contending that it contained exculpatory evidence. It was assumed that Hollingshead would testify. The statement was tape recorded, and the tape was lost at the sheriffs office before it was transcribed. A.R.Cr.P. Rule 17.1 requires the state to produce the statement if it existed. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). The state was unable to produce the tape; it could not be found. Hollingshead was not produced as a witness at trial. Except for a general allegation, we do not know exactly what the state did not do that deprived David of a fair trial. He has not said what exactly the exculpatory evidence is and why the loss of the tape was prejudicial.

Next, David requested copies of all notes taken during the grand jury proceedings. No transcript existed. The state produced the relevant notes to the defense, but the appellant demanded all notes taken at the proceeding. The court reviewed the remaining grand jury notes and found that they contained the same information David already had and were otherwise irrelevant. No prejudice has been demonstrated, and we cannot say the trial court erred.

Next, David argues that the state failed to provide the defense with copies of prior convictions of the state’s witnesses as the trial court ordered. During the preliminary portion of the trial, the defense informed the court that it had not received any witness conviction records from the state. Evidently, the defense wanted the state to use its resources to get this information. The court advised the state that it was responsible for any information in the NCIC computer and to find out and let the defense know of any prior convictions. At trial two of the state’s witnesses admitted having prior convictions. While the state evidently did not provide this information to the defense, the appellant has failed to demonstrate prejudice, and it was thus harmless error. There is no indication evidence of other convictions existed. The defense was able to fully cross-examine the witnesses about the prior convictions once they came out. Discovery under the rules of criminal procedure is not to be a substitute for a defendant’s own investigation. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).

Finally, David argues he did not receive documents requested from Donna Whitfield and Joe David. The court ordered the state to produce any documents it had on Donna Whitfield. (She did not appear at trial.) The state produced what it had and the rest of the information was presented through the testimony of other witnesses. The court also ordered Joe David, the appellant’s brother, to produce certain records. The trial judge evidently was satisfied that David produced the records and that appellant had the information he needed for a defense. On appeal the appellant has not convinced us the trial judge erred. The record reflects that throughout this proceeding the trial judge assisted the defense in every way possible with regard to discovery. The appellant should have made some effort to obtain these items, rather than relying solely on the state’s efforts. We find no prejudicial error concerning discovery.

Appellant’s fifth argument is that the trial court should have granted a continuance. These motions for continuance were filed the day before trial and during the trial, because out-of-state witnesses were not present and because the appellant had not received some of the evidence requested pursuant to discovery. Several of appellant’s witnesses were in New Mexico, and the judge ordered their presence. Two witnesses testified at trial, but three did not appear. One of those, Bryson Jacobs, was in prison in New Mexico and refused to be transported to Arkansas. Another, Ed Roza, allegedly had some health problems and was unable to travel. The trial court did grant a one day continuance during trial in order to allow for the attendance of Bryson Jacobs; once he refused to be transported, however, the trial court would not grant any further continuance to secure either witness’s attendance, finding that neither was material.

Appellant argues that the trial judge had already ruled that these witnesses were material to appellant’s defense when he signed the orders to secure their attendance at trial and that he was in error to change his position. The trial judge, however, stated that he had signed the orders only to accomodate the appellant and to help him secure these witnesses for trial. The trial court then held a hearing on the materiality of their testimony. The appellant testified and the judge concluded and ruled that none of the witnesses were material to the defense and refused to grant a further continuance on that basis. Neither was the court convinced that the documents appellant had not received were material. Furthermore, the court found that appellant had not been denied access to his attorney for the preparation of his defense as he contends.

The burden is on the movant to show good cause for a continuance. A.R.Cr.P. Rule 27.3. A motion for continuance is addressed to the sound discretion of the trial court and the court’s decision will not be reversed absent a clear abuse of that discretion amounting to a denial of justice. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). The burden of proving prejudice and an abuse of discretion rests on the appellant. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). Ark. Code Ann. § 16-63-402 (1987) governs the granting of continuances for the absence of evidence or witnesses. The statute requires the filing of an affidavit showing what facts the affiant believes the witness will prove and that the affiant believes these facts to be true. The appellant did not comply with the statutory requirement of an affidavit and only testified that the witnesses possessed exculpatory evidence; he did not show what their testimony would be. In Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976), we held that the denial of a motion for continuance which is not in substantial compliance with the statute is not an abuse of discretion. Besides compliance with the statutory requirement of an affidavit, the court should consider several other factors in determining whether a continuance should be granted. Kelley v. State, supra. Among these are the diligence of the movant in obtaining witnesses, the probable effect of the testimony at trial, and the likelihood of procuring the attendance of the witness in the event of a postponement. Kelley v. State, supra.

Applying these factors to the situation before us, we are satisfied the trial court did not abuse its discretion in refusing to grant a continuance. As the judge stated:

The court has given the defense, I think, great latitude, leeway in an attempt to secure these witnesses and been unable to do so. The trial cannot be continued any longer because it would be an indefinite continuance and just doesn’t seem to me that it would be — serve any purpose to continue the trial at this stage. So your motion for a continuance on all these grounds is denied.

Finally, it should be noted that it was the appellant who requested an immediate trial date, which was no doubt a factor bringing about the need for more time. In addition, on March 5,1987, six days before trial, appellant made a motion for the trial to proceed as scheduled, stating that he did not want a continuance.

Appellant’s next point is that the trial court erred in refusing appellant’s proffered instruction regarding the accomplice status of Thomas Ivy and David and Vanessa Clift. The appellant’s requested instruction, AMCI 402, stated essentially that these witnesses were accomplices and their testimony must therefore be corroborated. The trial court refused this instruction, giving instead AMCI 403, which stated that if the jury found these witnesses to be accomplices, their testimony must be corroborated. The instruction given allows the jury to determine whether these witnesses were indeed accomplices to the crime. The state concedes that Thomas Ivy was an accomplice; therefore, an instruction to that effect would have been proper had the defense requested one. It did not. Instead, the defense asked for an instruction that was not proper, so the trial court'was not wrong to refuse it. Eddington v. State, 225 Ark. 929, 286 S. W.2d 473 (1956).

An accomplice’s testimony must be corroborated by other evidence. See Ark. Code Ann. § 16-89-111 (1987) [Ark. Stat. Ann. § 43-2116 (Repl. 1977)]. The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Foster v. State, 290 Ark. 495, 720 S.W.2d 712 (1986); Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). It may be circumstantial evidence as long as it is substantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

Since it is undisputed that Thomas Ivy is an accomplice, his testimony must be corroborated. If we assume the jury found that David and Vanessa Clift were accomplices, their testimony must be corroborated. Even without the testimony of these three witnesses, there is sufficient evidence to connect appellant to this crime. There is no doubt the crime was committed. Tony Smith testified that he loaned a shotgun to Thomas Ivy and that he knew it was used by the appellant to kill Danny Whitfield. He testified that the gun was returned to him and that when he was later asked to destroy it, he did so. Joe David testified that he met with Donna Whitfield on behalf of his brother twice in order to get money from her that she allegedly owed Sam David. Other witnesses also testified that Sam David asked them to call or meet with Donna Whitfield on his behalf. Joe David also testified that Sam was nervous during the grand jury proceeding and that Sam had threatened him once, stating that he was the only connection between Sam and Donna Whitfield. Janie Spell, a friend of Donna Whitfield’s, testified that before the murder, she helped Donna cash a check for $2,000 and that Donna told her not to tell Danny Whitfield about the check. An employee of Savers Federal in Hot Springs (Donna Whitfield’s bank) testified that Donna Whitfield purchased two money orders from them, one on August 8,1984, and one on August 27,1984. The first was in the amount of $10,000 and the other was for $7,500. There is evidence that Joe David tried to cash a money order for $7,500 the same day Donna Whitfield purchased one; however, the bank refused to cash it because it was not filled out properly. Finally, Buddy Highsmith testified that on the day before the murder he saw a car matching the description of appellant’s car parked close to a culvert near the murder scene. He testified that the license number started with a “J” and had two “8’s” in it; Allison David, appellant’s wife, then testified that she and the appellant owned a car with the license plate number JKA 882 at the time of the murder.

Finally, appellant argues that there was insufficient evidence to support his conviction and that the trial court should have granted a directed verdict. Reviewing the evidence in the light most favorable to the state, we find substantial evidence to support the verdict. Coleman v. State, supra. The jury did not have to resort to speculation in concluding David was guilty. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

We have considered all other possible errors and find none. Supreme Court Rule 11(f).

Affirmed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Sam SEXTON, Jr. v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    87-272
    747 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Darrell Hickman, Justice.

Sam Sexton, Jr., a Fort Smith lawyer, had his law license suspended for one year by the Supreme Court Committee on Professional Conduct. We must reverse the decision because Sexton was not charged with a violation of a rule of professional conduct that was in existence at the time of his conduct. The committee may proceed against Sexton if he is properly charged.

The charge arose from conduct which occurred in 1983. According to the findings of the committee, when Sexton settled a claim for Danny Haffelder, who was injured in a motorcycle accident, Sexton suggested that Haffelder invest $20,000 in a company called Reclaimed Surface Coal Corporation, a company in which Sexton was involved. Sexton assured Haffelder he would double his money in 40 months. Sexton signed a promissory note to Haffelder for $40,000 as president of the company. Haffelder was paid about $12,000 on his investment, but had to file suit to obtain a judgment for the remaining $28,000. Discussion of the details of this matter are unnecessary to our decision.

Haffelder filed a complaint with the Supreme Court Committee on Professional Conduct. The executive secretary of the committee notified Sexton that he was charged with the violation of Rules 1.8(a) and 8.4(a) of the Model Rules of Professional Conduct. Rule 8.4(a) is a general rule of misconduct, which reads:

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

The specific rule, Rule 1.8(a), reads:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; • and
(3) the client consents in writing thereto.

These rules were not in existence at the time of Sexton’s conduct. They were adopted on December 16,1985. See Per Curiam, 287 Ark. 495, 702 S.W.2d 326 (1985). At the time of Sexton’s conduct, he was governed by the Code of Professional Responsibility which was adopted by our order February 23,1970. While the rules are similar, they are not the same.

The counterpart to rule 1.8 of the Model Rules of Professional Conduct under the Code of Professional Responsibility was disciplinary rule 5-104(A), which reads:

A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.

The old code contained ethical considerations, which served to guide attorneys regarding what was permissible conduct and what was not. One applicable to this situation is EC5-3, which reads in part:

A lawyer should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of his client to invest in an enterprise in which the lawyer is interested.

Sexton made a timely motion to dismiss the charges against him because rule 1.8 was not in effect when the conduct occurred, but the motion was overruled. The committee was wrong. Due process requires notice that an act is punishable at the time it is committed. See In Re Inquiry Concerning a Judge, 357 So. 2d 172 (Fla. 1978). Accordingly, Sexton should have been charged under the rule in effect at the time of the alleged misconduct. See, e.g., Kelson v. State Bar of California, 549 P.2d 861, 130 Cal. Rptr. 29 (1976); see also Montgomery County Bar Association v. Hect, 317 A.2d 597 (Pa. 1974); Attorney Grievance Commission of Maryland v. Kerpelman, 420 A.2d 940 (Md. 1980). It might not matter if the rules were substantively the same, but we find a significant difference between the old rule, 5-104(A) of the Code of Professional Responsibility, and the new rule, 1.8(a) of the Model Rules of Professional Conduct.

Sexton also argues the charge should be dismissed. We do not reach this question in view of our decision to reverse the committee’s decision on notice and the charge. However, we note that in Kelson, supra, the California Supreme Court held that the adoption of new rules of professional conduct is not a bar to a proceeding against a lawyer for an alleged violation of prior rules of professional conduct.

Sexton also argues that the committee was wrong in finding that the attorney/client relationship still existed when the investment was made. Haffelder did not invest the money until June 30, 1983. However, Sexton suggested that Haffelder invest the money the day the settlement proceeds were disbursed. At that time Sexton was still in a position of trust as a lawyer, and later events transpired on the basis of a suggestion Sexton made while the lawyer/client relationship existed. We cannot say the committee was clearly wrong in finding that the relationship of attorney/client existed.

Reversed and remanded.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. There is nothing to be gained by remanding this case. In the first place, we review the record de novo and do not reverse the findings of the committee unless they are clearly erroneous. Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 282 (1987). Moreover, this case was the subject of a lengthy hearing and a full inquiry by the committee, and neither side suggested the need for additional proof.

The charges by Mr. and Mrs. Haffelder against Mr. Sam Sexton, Jr., were defended entirely on the contention that Mr. Sexton and Mr. and Mrs. Haffelder were at no time in an attorney-client relationship. The hearing was focused on that issue alone. The argument that these events occurred before the effective date of the Model Rules of Professional Conduct, while mentioned in passing at the commencement of the hearing, was otherwise ignored. There was no proof whatever that the actions by Mr. Sexton of which the Haffelders complained were not improper prior to the adoption of the Model Rules. Moreover, essentially the same conduct is prohibited under the Code of Professional Responsibility. See DR 5-104(A). Certainly there was no attempt by Mr. Sexton to show that he complied with either rule by informing the Haffelders about the transaction. There is no testimony that Mr. Sexton met the requirement of “full disclosure” to the Haffelders as to the pros and cons of the transaction. Mr. Sexton testified that he thought it was a good investment for them and that Mr. Haffelder regarded it as “a favor” by Mr. Sexton. There is no mention of any risk involved, but it is implicit in Mr. Sexton’s account of the transaction, in the form of a loan, that it was patently usurious, in that the $20,000 was to be repaid at $ 1,000 a month for forty months. There seems to have been no disclosure of that material fact. It is the appellant’s duty to demonstrate error in the proceedings below and to present a record for which it can be determined on review that error occurred. S.D. Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); Kimery v. Schockley, 226 Ark. 437, 290 S.W.2d 442 (1956). This he has failed to do.

As to whether Mr. Sexton and Mr. and Mrs. Haffelder stood in an attorney-client relationship, only one conclusion is possible. The proof is overwhelming. Mrs. Haffelder, acting for her husband while he was hospitalized from his injuries, testified that she called the Sexton firm, that she spoke with Mr. Sexton and he agreed to represent them. Often thereafter she and her husband would meet with Mr. James Robb or Mr. Bennett Nolan, younger lawyers with the firm, but they always considered Mr. Sexton their lawyer and always asked first to meet with him. Mr. Haffelder’s testimony corroborated Mrs. Haffelder’s. While Mr. Sexton denied that he ever spoke with Mrs. Haffelder, the finding of the committee was clearly to the contrary.

If any doubt of Mr. Sexton’s status were to remain, the documentary evidence dispels it entirely. When the discovery deposition of Mrs. Nancy Clower, the opposing litigant, was taken, Mr. Sexton appeared as attorney for the Haffelder’s, and it was he who did the questioning. Much of the correspondence between the Sexton firm and Mr. Hugh Hardin, attorney for the Clowers’s insurance carrier, was between Mr. Sexton and Mr. Hardin. Of eleven items of correspondence flowing from Mr. Hardin, seven were addressed to Mr. Sexton, three to Mr. James Robb and none to Mr. Nolan, whom Mr. Sexton contends was “lead” counsel. In one letter to Mr. Sexton, Mr. Hardin states, “In your representation of this young man” (referring to Mr. Haffelder) and proceeds to ask for income tax records. There is correspondence between Mr. Walter Niblock, who represented Mrs. Clower individually, to the carrier, urging settlement within the policy limits, and stressing Mr. Sexton’s effectiveness in trial. This letter assumes that Mr. Sexton alone is representing the Haff elders. There are several letters from Mr. Sexton proposing settlement and evidencing an intimate knowledge of the case. The settlement itself, according to Mr. Hardin’s records, was reached between Mr. Hardin and Mr. Sexton. The compromise settlement agreement, a detailed document, was approved by Mr. Sexton, as “attorney for the Haff elders,” the settlement check of $90,000 was endorsed by Mr. Sexton, and the joint order of dismissal of the cause with prejudice was approved by Mr. Sexton and Mr. Hardin, and it was Mr. Sexton who met with the Haffelders at the settlement conference. Lastly, it should be noted that when Mr. and Mrs. Haffelder sued Mr. Sexton some two years later, requests for admissions were served on Mr. Sexton, the first of which was a request that he admit an attorney-client relationship had existed with the Haffelders. This request was never denied.

It is true that Mr. James Robb and Mr. Bennett Nolan of the Sexton firm, testified that Mr. Sexton never represented the Haffelders, that they retained Mr. Nolan to represent them and he brought Mr. Robb into the case, and because they were younger, they were merely drawing on Mr. Sexton’s experience and prestige. But even if Mr. Sexton were not expressly retained by the Haffelders, by assuming an active, high-profile role in their behalf, Mr. Sexton gave the Haffelders every right to assume that an attorney-client relationship existed. The relationship is not dependent on an express agreement, it may be implied on the part of an attorney who acts in behalf of his client in pursuance of a request by the latter. Hirsch Bros. & Co. v. R. E. Kennington Co., 124 So. 344 (Miss. S. Ct. 1929); 88 A.L.R. 1; Corpus Juris Secundum, Vol. 7A, § 169, p. 250.

I respectfully submit on this record the committee should be affirmed.

Glaze, J., joins this dissent.


author: Steele Hays, Justice.

text:
    Frank S. PATTERSON, Helen Goff and Ralph M. Patterson, Jr. v. STATE of Arkansas
    88-25
    747 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Ralph M. Patterson, Jr., for appellants.

      Callahan, Crow, Bachelor & Newell, P.A., by: Carl A. Crow, Jr., for appellee.
   Steele Hays, Justice.

From the statement of the case in appellants’ brief it appears that in 1980 two of the appellants filed a suit for specific performance against the State of Arkansas, appellee, in the Chancery Court of Garland County. That proceeding was later dismissed without prejudice on motion of the plaintiffs, and in 1985 an action for damages was filed by the appellants in the Garland Circuit Court. The circuit court action was then dismissed, first without prejudice, then with prejudice, resulting in this appeal. Two points are relied on for reversal: 1) It was error to dismiss this cause with prejudice as to Frank S. Patterson, who was not a party to the original cause, and 2) It was error to dismiss as to Helen Goff and Ralph M. Patterson, Jr., predicated upon ARCP Rule 41.

The case is affirmed pursuant to Rule 9, Rules of the Supreme Court and the Court of Appeals. The abstract consists of nothing more than a brief reiteration of the statement of the case. There is no abstract of the pleadings, several relevant motions, the order or orders appealed from, nor anything concerning the proceedings below. In short, it is utterly impossible to comprehend the arguments presented or to intelligently decide the issues. Finding the abstract flagrantly deficient, we affirm. Cash v. Holder, 293 Ark. 537, 739 S.W.2d 538 (1987); Financial Security Life Assurance v. Powell, 247 Ark. 609, 447 S.W.2d 64 (1969); Reeves v. Miles, 236 Ark. 277, 365 S.W.2d 461 (1963).

AFFIRMED.