author: Frank Holt, Justice.

text:
    Danny Jerome SIMS v. STATE of Arkansas
    CR 80-161
    607 S.W. 2d 393
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted in 1974 of first degree murder and received a life sentence. We reversed and remanded. Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975). Following our remand on the murder conviction, the trial court sentenced appellant to 21 years on his plea of guilty to a reduced charge of second degree murder to run consecutively to a total of 15 years he was already serving. Nearly three years later, appellant filed this pro se motion alleging he pled guilty to the reduced murder charge with the understanding the sentences would run concurrently. The trial court conducted a Rule 37 hearing at which appellant alone testified. On the basis of this testimony and the transcript from the prior hearing, the court found the consecutive sentence was correctly given. Appellant now raises the issue that his plea was not intelligently and voluntarily made. He argues that his negotiated plea of guilty to the reduced murder charge was without a full understanding on his part of the agreement reached by his counsel and the state, and there was insufficient compliance by the trial court with Arkansas Rules of Criminal Procedure, Rules 24 and 25. Consequently, his sentence should be modified so that it be concurrent rather than consecutive.

We have held that a “substantial, though not technical, compliance with these rules” is sufficient. The critical question, and the one presented here, is whether the plea was voluntary. Simmons v. State, 265 Ark. 48, 578 S.W. 2d 12 (1979). In Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980), we held:

This rule [24.4] . . . require[s] that the trial judge ascertain whether a plea of guilty is voluntary. There is no constitutional requirement that the trial judge make the explanations of the right to jury trial and of the maximum possible sentence required by Boykin, and a silent record does not require automatic reversal if it be proved at a postconviction evidentiary hearing that the plea was voluntary and intelligently made. . . .

At the evidentiary hearing on his postconviction motion, the appellant testified he thought at the time of sentencing on the reduced murder charge that his sentence would run concurrently to the 15 year sentence previously imposed. He admitted that he did not protest the imposition of the consecutive sentence at the timé of sentencing; although he left the courtroom, he protested to his attorney, who told him it would do no good.

It is apparent from the record made at sentencing that the matter of the sentences running concurrently was not a condition of the plea agreement for a 21 year sentence. Prior to accepting his plea, the transcript of the sentencing reflects that appellant assured the court his plea was voluntary; he understood the charges and he knew he was entitled to a jury trial; he had discussed with his attorney the charge and punishment and all the facts and circumstances relating thereto; and he was satisfied with the attorney’s services. The state recommended a 21 year sentence on the guilty plea. Appellant’s attorney stated this was the result of a negotiated plea, acknowledging that the court could accept or reject it. Appellant’s attorney then importuned the court to consider concurrent sentences. The court declined to do so, announcing the sentence would be consecutive, and this would result in a total of 36 years requiring him to serve 1/3 of that total sentence before being eligible for parole. The court then asked if there were any questions. Appellant asked no questions nor did he make any objection to the sentences being imposed consecutively. Counsel again requested the sentences be concurrent which the judge denied.

In the circumstances, we hold there was substantial compliance with the sentencing requirements on a negotiated plea of guilty, and, therefore, appellant has not demonstrated that his plea was made unintelligently and involuntarily.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Carolin WELDON v. SOUTHWESTERN BELL TELEPHONE COMPANY
    80-244
    607 S.W. 2d 395
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey Jones, by: Guy H. Jones, for appellant.

      Gary T. Hartman and D. D. Dupre, for appellee.
   Darrell Hickman, Justice.

The only question in this appeal is one of statutory construction.

Carolin Weldon claimed that she was injured when she stepped into a hole where a water meter was located. A suit was filed against Southwestern Bell Telephone Company because the accident took place on Southwestern Bell property. The meter belonged to the local water company, the Conway Corporation. The complaint alleged that the meter had either been removed or the lid was off of it and the grass had grown up concealing the hole.

The suit was filed almost three years from the date of the accident. Southwestern Bell defended by claiming that a two year statute of limitations barred this suit. If that statute is applicable, Southwestern Bell is correct. The statute reads:

Limitation of Actions. — No suit shall be brought against any telephone company or cooperative by the reason of the maintenance of telephone lines, poles, and fixtures, on any real property, or with any right-of-way of any public way, unless it is commenced within two [2] years after the cause of action has accrued; provided, that such causes of action not barred by a statute of limitation at the time of the passage of this act [§§ 77-1601 — 77-1639] shall not be sued on more than two [2] years thereafter.
Ark. Stat. Ann. § 77-1636.

The trial court granted the motion to dismiss after hearing arguments by Southwestern Bell that the word “fixtures” in the statute was not limited to telephone fixtures but applied to any fixture located in a right-of-way. The appellant argues that the statute means telephone fixtures and since this was a water meter, the statute should not apply. We agree with the appellant.

We apply the doctrine of noscitur a sociis which, in literal translation, means “it is known from its associates,” and in practical application means that a word may be defined by an accompanying word. In Altus Cooperative Winery v. Morley. Commissioner of Revenues, 218 Ark. 492, 237 S.W. 2d 481 (1951), the cooperative sought to manufacture wine. We found that seventeen words in the statute, such as “producing, marketing, selling, harvesting . . .”, were confined to activities associated with agricultural products. In the present case we would have to say that the General Assembly should have said “telephone lines, telephone poles and telephone fixtures” for appellee to prevail. The statute did not intend to limit any cause of action resulting from the maintenance of any fixture located on a telephone company right-of-way. It only intended to apply to "telephone fixtures.”

Reversed.


author: John I. Purtle, Justice.

text:
    Jack LAMPKIN v. STATE of Arkansas
    CR 80-78
    607 S.W. 2d 397
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      Howard & Howard, by: William B. Howard, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Feivell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

At the close of the state’s evidence in the trial of appellant for murder in the first degree the court directed a verdict of acquittal on the charge of murder in the first degree but continued the trial on murder in the second degree and the lesser included offenses of manslaughter and negligent homicide. The jury found appellant guilty of murder in the second degree and assessed his punishment at ten years in the Department of Correction.

On appeal appellant argues he was placed in double jeopardy and that the court erred in giving AMCI 109 without modification as requested. A third point designated but not argued will not be considered. We do not agree with appellant on either argument.

Appellant advances the unusual argument that he was placed in jeopardy for a class A felony, murder in the first degree, with a penalty from five years to life. He alleges that any sentence above the five-year minimum allowable for the class A felony amounted to double jeopardy, since the trial court directed an acquittal on the class A felony. In this case the class B felony, murder in the second degree, carried a possible penalty from 3 to 20 years. Therefore, he alleges the overlapping possible sentences, anything over five years, amounted to double jeopardy. He does not argue the inadequacy of the evidence for conviction of second degree murder. The trial court directed the verdict of acquittal on murder in the first degree at the close of the state’s evidence and rejected the motion for a directed verdict on murder in the second degree at the close of all the evidence. The trial continued on the charge of murder in the second degree as well as manslaughter and negligent homicide. Instructions were given on these offenses without objection by the appellant.

Appellant cites the cases of Johnson v. State, 29 Ark. 31 (1874), and Ex Parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L. Ed. 872 (1873), in support of his argument on double jeopardy. In Johnson the accused was tried for first degree murder and convicted of second degree murder. The case was reversed, and Johnson was tried and convicted of murder in the first degree and sentenced to death. We reversed and remanded in holding that the accused was placed in jeopardy twice for first degree murder and that he could only be tried the second time for second degree murder. In Lange the accused was convicted of a crime and sentenced to a fine and imprisonment. The accused immediately paid the fine. The statute authorized a fine or imprisonment. After paying the fine Lange successfully argued double jeopardy on the sentence of imprisonment. We do not find either case supports the appellant’s argument.

North Carolina v. Pearce, 395 U.S. 711 (1969), holds that the constitutional prohibition against double jeopardy consists of three guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after a conviction; and (3) it protects against multiple punishments for the same offense. We do not find that the conviction here violates any of the above guarantees. There was only one trial and one conviction. Therefore, the appellant has not been placed in jeopardy twice for the same offense nor sentenced to more than one punishment.

In Chaney v. State, 256 Ark. 198, 506 S.W. 2d 134 (1974), the defendant was charged with murder in the first degree and convicted of murder in the second degree. We affirmed the conviction and the sentence of 21 years. We held that murder in the second degree was a lesser included offense of murder in the first degree and it was proper to instruct the jury on murder in the second degree even if the defendant objected to such instructions. The present case presents the same problem, and we reach the same conclusion we reached in Chaney. See also Dixon v. State, 268 Ark. 471, 598 S.W. 2d 755 (1980). We held in Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), that a defendant may be convicted of a lesser included offense when the higher offense contains all of the necessary allegations of the lesser included offense.

The second point argued by appellant is that the court improperly gave the jury instruction AMCI 109. This instruction with the requested change underlined would read as follows:

You are also instructed that there is a presumption of the defendant’s innocence in a criminal prosecution. In this case, Jack Lampkin is presumed to be innocent. That presumption of innocence should continue and prevail in your minds unless and until you are convinced of his guilty beyond a reasonable doubt.

Appellant requested the words “unless and” be inserted following the word “minds” and before the word “until.” It is appellant’s contention that the standard version of this instruction implies to the jury that the state is definitely going to convince them, at some point in the trial, that appellant is guilty beyond a reasonable doubt. The instructions are not given until the close of all the evidence, and it would seem highly unlikely for a juror to interpret this statute to mean that at some time before they receive the case the state would definitely prove the accused’s guilt beyond a reasonable doubt. This instruction as given was taken verbatim from the Model Criminal Jury Instructions. This Court entered a per curiam on January 29, 1979, 264 Ark. 967 (1979), which requires the court give the AMCI instruction unless the trial judge finds that it does not accurately state the law. We think the instruction as given is a proper statement of the law and therefore was properly given. The appellant has presented no case which holds in favor of his argument. Even though the appellant’s requested instruction may have also been a proper statement of the law, we hold that the instruction as given was correct. Therefore, no reversible error was committed.

Affirmed.


author: John F. Stroud, Justice.

text:
    Randall BURKETT v. STATE of Arkansas
    CR 80-121
    607 S.W. 2d 399
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      Mathis & Mathis, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

This is an appeal from a conviction in the Circuit Court of Clark County for possession of a controlled substance (marijuana) with intent to deliver. We agree with appellant that the warrantless search of the trunk of his vehicle was illegal and the marijuana seiz:ed there should have been suppressed from evidence.

Appellant was stopped on April 26, 1979, about 10:00 p.m. on Interstate 30 near Arkadelphia by two troopers of the Arkansas State Police for a defective taillight. While Trooper Jim Jenkins was issuing a compliance summons to appellant, Trooper Glen Owens proceeded to investigate the vehicle, shining his flashlight into it, examining the inspection sticker, and, finally, entering the vehicle on the driver’s side. Trooper Owens emerged from the vehicle with part of a marijuana cigarette and a green-handled “roach holder” which he later testified were lying in plain view in the console ashtray. At that point appellant and his passenger were arrested and taken into custody for possession of marijuana. The troopers then proceeded to conduct a warrantless and non-consensual search of the entire vehicle, including the locked trunk. After searching several suitcases in the trunk and finding a burglap bag containing five bricks of marijuana, appellant was charged with possession of a controlled substance (marijuana) with intent to deliver. The troopers then transported appellant and his passenger to the Clark County Jail and had appellant’s vehicle towed to a local service station.

Appellant filed a motion to suppress the marijuana from evidence, alleging that it was the product of an illegal search and seizure, but the trial court denied the motion. Appellant was convicted by a jury on January 30, 1980, and sentenced to imprisonment for five years and fined in the amount of $10,000. Alleging that the trial court erred in denying his motion to suppress, appellant brings this appeal.

The sole issue on appeal is whether the warrantless and non-consensual search of appellant’s vehicle was violative of the Fourth Amendment’s prohibition against unreasonable searches and seizures. The facts in this case are disturbingly similar to those recently decided by this court in Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980). The arrests in both cases were made at night by the same officers at the same mile marker on 1-30; both vehicles had a defective rear light; marijuana was found in the ashtray of both vehicles; a warrantless and non-consensual search was made of the locked trunk of both vehicles; and both appellants received identical sentences. We feel our reasoning in Scisney controls the disposition of this appeal. Although Scisney involved the search of luggage contained in the trunk of the defendant’s automobile, the initial intrusion into the trunk compartment was wrongful in that case and it was wrongful here as well.

Contrary to appellant’s argument, this case does not fall under the “suitcase doctrine” as enunciated in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). The burlap bag which contained the marijuana seized from the trunk of appellant’s vehicle was invested with the expectation of privacy that the above cases extended to typical repositories of personal effects. Nor does this case fall within the purview of the “automobile exception” established in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), for at the time of the search any exigency of mobility of the vehicle had been removed by the arrest of appellant and his passenger and the' call for the tow truck.

This was, as in Scisney, simply an instance in which law enforcement officers ignored the United States Constitution’s prohibition against unreasonable searches and seizures. Absent a warrant, consent or any underlying probable cause, they proceeded to search the entirety of appellant’s vehicle and, ultimately, seized contraband found therein. A “roach clip” and part of a marijuana cigarette found in the console ashtray of the vehicle did not supply the probable cause required for a warrantless search of the contents of the locked trunk of the car, nor did they provide the reasonable belief required for a warrantless search pursuant to Rule 12.4 of the Arkansas Rules of Criminal Procedure. Accordingly, as we find that appellant’s motion to suppress should have been granted, we reverse the judgment of the trial court.

Reversed and remanded.


author: Richard L. Mays, Justice.

text:
    James Francis COOLEY v. STATE of Arkansas
    CR 80-149
    607 S.W. 2d 386
    Supreme Court of Arkansas
    Opinion delivered November 17, 1980

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

The only question presented by this appeal is whether the evidence is sufficient to support a conviction of battery in the second degree. A person commits battery in the second degree if he purposely causes physical injury to any person by means of a deadly weapon. Ark. Stat. Ann. § 4l-l602(l)(b) (Repl. 1977). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Stat. Ann. § 41-203(1) (Repl. 1977).

On August 24, 1979, appellant, James Francis Cooley, was a passenger on a Greyhound bus en route to Memphis, Tennessee. Shortly before reaching a bus terminal in Stuttgart, Arkansas, the bus driver, Jesse Russell, felt something hit him on top of the head. He was dazed for a few seconds and then noticed appellant standing in front of him with a knife in his hand. Bleeding about the head and not knowing what to expect next, the bus driver asked appellant what he wanted. Appellant merely stood mute until the bus reached the terminal, and then calmly returned to his seat where he remained until the police arrived. He put up little resistance when the police attempted to handcuff him and appeared to be generally oblivious to their presence. At the police station, when asked why he had stabbed the bus driver, appellant appearing distraught and despondent, said that he had just struck out because of frustrations resulting from his chronic unemployment and financial incapacity. In his defense appellant testified that he did not remember stabbing the bus driver and did not intend to injure him. Appellant also presented evidence that psychological tests administered to him indicated that he was likely to act without thinking.

In reviewing a criminal conviction on appeal, we consider the evidence most favorable to the state and affirm if there is substantial evidence to sustain the conviction. White v. State, 266 Ark. 499, 585 S.W. 2d 952 (1979). Circumstantial evidence may be substantial if it gives rise to more than a suspicion or induces the mind to pass beyond mere speculation or conjecture. Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979).

Appellant contends that the state failed to present sufficient evidence of his mental state to give rise to more than mere speculation that he committed any act with a conscious objective of causing physical injury. Although appellant concedes that he has no mental disease or defect, he argues that his character trait of acting without thinking and his preoccupation with his personal crisis prevented him from having the requisite culpable mental state to commit a second degree battery. We are not persuaded by this argument. Every man is presumed to intend the natural consequence of his acts and, unless he is insane, may be held accountable by society. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915). The act of stabbing a person in the head with a knife is substantial evidence of an intention to cause physical injury, even if done under circumstances suggesting severe emotional stress. The possibility that jurors could have found otherwise under the circumstances of this case is no justification for this Court to substitute its judgment for theirs.

Affirmed.


author: Ernie E. Wright, Chief Judge.

text:
    Dennis SOSSAMON v. E. G. DAVIS et ux
    CA 80-282
    607 S.W. 2d 405
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980

      Pryor, Robinson, Taylor & Barry, by: Ben T. Barry, for appellant.

      Pranklin Wilder, for appellee.
   Ernie E. Wright, Chief Judge.

In December, 1979, Appellant Dennis Sossamon filed suit against appellees for specific performance of a written offer signed by appellees and delivered to appellant on December 8, 1977, to sell real estate. The acceptance of the offer appearing on the form was not signed by appellant as buyer but was orally agreed to by him. The offer concerned certain improved real estate appellant was then occupying as a tenant pursuant to a lease agreement with appellees.

The trial court denied specific performance and we affirm the decree.

For reversal appellant argues the trial court erred in finding appellant failed to sustain his burden of proof and various other points, but we discuss only the matters we find to be dispositive of the case.

In August, 1976 appellant leased the property in question from appellees for a period of three years, and during all times here relevant appellant has had possession of the property as a tenant, and has paid monthly rent in keeping with the rental agreement of the parties. Appellant approached appellees about buying the property, and on August 8, 1977, appellees signed an offer to sell the real estate to appellant for $45,000, payable $1,000 earnest money on acceptance of the offer, $13,000 in cash with the $1,000 earnest money to be credited on the $13,000 cash payment, and the balance of $32,000 payable $500 monthly over a period of 88 months, including 9 percent interest. Appellant did not execute the lease but did orally agree to the terms of the offer on the date the signed offer was delivered to him and gave Appellee, Mr. Davis, his personal check for $1,000, with notation thereon, “earnest check for property.” When the check was delivered to appellee Davis, appellant did not have the funds in the bank to make the check good and the check was never cashed. Davis testified appellant was to sign the offer and acceptance and return it to him, and he would then furnish appellee a copy, but appellant never did sign the offer.

The “Offer and Acceptance”, signed only by appellees as sellers contained no specific time for payment of the $13,-000 down payment. Both parties testified the agreement contemplated the transaction would be closed within a reasonable length of time. The understanding was that appellant was to secure a loan to close the transaction.

In early 1978, appellant told appellees he was unable to obtain financing from Savings & Loan. Later in the spring of 1978, appellant told appellees he could obtain financing from the VA if appellees would allow VA to have a first mortgage on a part of the property. Appellees rejected this proposal.

Early in 1979, appellee Davis advised appellant he preferred not to close the deal. Up to that time appellant had never offered to close the transaction except on some basis under which appellees would be required to relinquish a first security interest in some prt of the property.

In September, 1979, a Mr. Finsel indicated interest in the property and told Appellee Davis the property ought to be worth $60,000. Shortly thereafter Davis told appellant he couldn’t sell him the property for less than $65,000, and thereafter in December, 1979, appellant filed suit for specific performance. At the time of trial in March, 1980, appellant continued to occupy the property as tenant paying monthly rent to appellees, although the written lease had expired in August, 1979-

Appellant testified that soon after appellees gave him the offer to sell and he had given the $1,000 check for earnest money, he spent $1,000 for masonry work and installing an additional door in the business building on the property. The improvement was for the convenience of appellant’s business and not an unusual type improvement for a business tenant to make. Later appellant paid $60 for an appraisal in connection with a loan application to Central Bancshares. This was the only formal loan application appellant has ever made for the purpose of closing the transaction, and the loan application was rejected. In 1979, appellant proposed to appellees that he could pay the $13,000 cash payment with a first mortgage going to a Mr. Rice and a Mr. Engeles or he could pay the whole $45,000. Appellee Davis declined to accept an arrangement under which appellees would have a second mortgage for the deferred balance, and declined because of tax consequences to accept the proposal that he accept all of the sale price in cash. Appellant did not come forward with any concrete proposal to close the purchase that would have been in keeping with the terms of the contract. The contract did not specify that appellees would accept a second mortgage on all or part of the property as security for the deferred part of the sale price nor did it obligate them to accept cash in full at closing. There was no evidence other than appellant’s vague testimony that appellant had a loan commitment from any source that would enable him to close the purchasé in keeping with the terms of the offer to sell, viz: that is by payment of $13,000 cash and appellees retaining title or having a first mortgage to secure the deferred balance to be paid with interest over 88 months.

Appellees have received no money on the $1,000 earnest money recited in the offer and appellant’s $1,000 check was never cashed. Appellant testified he expected Appellee Davis to hold the $1,000 check until the transaction was closed, but David denied there was any understanding to that effect.

The court found appellant had failed to prove his case by a preponderance of the evidence, that he had never performed the conditions he should have performed to place himself in a position to entitle him to specific performance, that appellant had not paid the $1,000 earnest money, but had merely assumed appellees would hold his check until some unknown and unspecified closing date. A decree was entered dismissing the complaint.

After carefully reviewing all of the evidence, we conclude the chancellor was correct in finding appellant had failed to prove facts by a preponderance of the evidence establishing he is entitled to specific performance. The burden was upon appellant to show substantial compliance with the obligations imposed upon him by appellee’s written offer and appellant’s oral acceptance. Appellant did not pay the $1,000 earnest money, but gave a check which was not good at the time it was delivered and it has never been cashed. Appellant has never at any time offered to close in keeping with the terms of the written offer. Moody v. Kahn, 174 Ark. 1072, 298 S.W. 353 (1927).

Appellant argues in his brief that a reasonable man would assume that it was likely or possible in order for the appellant to obtain a loan that he would need to give a first mortgage on the property to a lender, and that appellees were obliged to accept a second mortgage on the real estate, or some part of it, as security for the deferred balance. Appellant cites no authority that supports his argument, and we reject the contention. There was no evidence of any agreement that appellees would accept a second mortgage, and the law implies no such agreement.

The appellant was not diligent in seeking specific performance. He filed suit two years after the offer to sell was made. The law is well settled that one seeking specific performance must act with diligence. Even though the agreement did not specify a time for performance, both parties testified the agreement contemplated a reasonable time, and the law imposes an obligation to comply with the contract within a reasonable time. Bracy v. Miller, 169 Ark. 1115, 278 S.W. 41 (1925). Smith v. Carter, 213 Ark. 937, 214 S.W. 2d 64 (1948). Appellant failed to offer to close the transaction in keeping with its term within a reasonable time, and did not act with diligence in seeking performance. He paid nothing to appellees on their offer to sell, and by this suit seeks to profit from the interim increase in the value of the property. Equity will not grant specific performance unless the one seeking relief shows he has all times been ready, able and willing to perform in keeping with the agreement, and has acted with promptness in seeking specific performance. Appellant failed to show he met these requirements. Welborne v. Preferred Risk Insurance Co. 232 Ark. 828, 340 S.W. 2d 586 (1960).

The chancellor made findings of fact against appellant and we do not reverse findings of the trial court unless clearly erroneous. Rule 52, Ark. Rules of Civil Procedure. We cannot say the chancellor’s findings are clearly erroneous, but on the contrary we conclude his.findings are well supported by the evidence.

As we review equity appeals de novo we affirm a correct decision of the chancellor if we conclude the record shows appropriate reasons for affirmance, even though the reason was not stated by the trial court as a basis for the decision. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974). There is an additional reason we affirm the decree denying specific performance.

Appellees denied there was a valid contract. This is sufficient to raise the defense of the statute of frauds. Stanford v. Sager, 141 Ark. 458, 217 S.W. 458 (1920).

The written offer upon which appellant relies does not contain a definite description of the real estate. The offer describes the real estate only as Lots 11 & 12, Block 1, Hendrix Addition. There is no indication as to what city, county or state the property is situated in. Unquestionably the property could be identified by oral testimony, but a contract for the sale of land comes within the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962), and must therefore be in writing to be enforceable. Reynolds v. Havens, 252 Ark. 408, 479 S.W. 2d 528 (1972). A definite description of the land that is the subject matter of the agreement is one of the essential elements that must be in writing before a court of equity will grant specific performance. Here there is not a sufficient key in the written offer by which the property can be definitely identified and oral testimony is not permitted to identify the land. James v. Medford, supra. It is true that partial performance of a contract by payment of a part of the purchase price and placing a buyer in possession of land pursuant to an agreement of sale and purchase is sufficient to take the contract out of the statute of frauds. Such did not occur here as appellant paid nothing and was at all times relevant in possession of the property as a tenant. He was never placed in possession pursuant to any agreement for sale or purchase. Thom v. Geyer, 254 Ark. 716, 497 S.W. 689 (1973).

Affirmed.


text:
    THE FIRST NATIONAL BANK IN LITTLE ROCK v. WORTHEN BANK & TRUST COMPANY, N.A., Trustee, Patricia Tucker BELL, Shirley Eagle MELTON and Irma Tucker REID
    CA 80-299
    607 S.W. 2d 409
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980

      Triday, Eldredge & Clark, by: William L. Terry, for appellant.

      Rose Law Firm, by: William H. Kennedy, III and W. Dane Clay, for appellees.
   Ernie E. Wright, Chief Judge.

The issue presented by this appeal is whether a clause in a long term lease providing that the base monthly rent specified in the lease would be adjusted annually on July 15 in keeping with the Consumers Price Index (CPI) of the United States Bureau of Labor Statistics is applicable to the base rent set out in the option to renew the lease. The trial court so held, and we reverse:

Some of appellees are the original lessors and the remainder of appellees are successors of original lessors, and the appellant, First National Bank is the successor to the original lessee, the Peoples National Bank of Little Rock. The original lease on certain real estate in downtown Little Rock was for 25 years beginning August 1, 1952, and ending July 31, 1977, and provides for a base monthly rent of $900.00 for the first 10 years and $1,000.00 for the succeeding 15 years. The lease contained a clause for the annual adjustment of base rent in keeping with fluctuations of CPI.

A separate document described as, “Option to Renew Lease”, was executed simultaneously by lessors and lessee giving the lessee the right to renew or extend the original lease from August 1, 1977 to July 31, 2002, at a rental of $1250.00 per month for the first 10 years of the renewal and $1,500.00 per month for the last 15 years, “subject to adjustment from time to time in accordance with fluctuations in Consumers Price Index”, as provided in the original lease.

The renewal option further recited:

All of the provisions and covenants, other than the monthly rentals, of the original lease shall remain in full force and effect if the lessee exercises its option to renew said lease for the additional twenty-five year period expiring on the 31st day of July, 2002.

The appellant lessee gave written notice in September, 1969, of the exercise of its option to renew the lease and for the period from August 1, 1977 through December, 1977, appellant paid appellee monthly rents in the amount of $2,-282.16. From January 1, 1978 through July, 1978, appellant paid monthly rent to appellees in the amount of $1,250.00 per month. Appellees contend the correct rent for the period beginning August 1, 1977 was $2,852.70 per month and was $3,072.93 per month beginning August 1, 1978. Appellees’ contention is based on the argument the renewal option carried forward all CPI adjustments under the original 25 year lease.

Appellant contends the monthly rent under the renewal of the lease if controlled solely by the specific provisions with reference to monthly rental set out in the renewal option, and that the CPI adjustments under the original lease are not applicable to the renewal, but that the larger base rent stated in the renwal option is subject only to adjustment for changes in the CPI after the inception date of the renewal lease.

Appellant filed suit for declaratory judgment finding the monthly rent payable for the period beginning August 1, 1977, the beginning date for the lease renewal, is $1,250.00 per month and for the recovery of over payments alleged to have been made by oversight during the first 5 months of the lease renewal. In effect appellant asks the court to determine that the base rent adjustment provision as to the renewal lease was limited to changes in the CPI subsequent to the inception of the renewal lease. Appellant deposited in the registry of the court the difference in dispute in the rent.

Appellees filed suit for possession of the premises on grounds of alleged failure on the part of appellant to pay adjusted rent which would include the cumulative increases in the CPI from the inception of the original lease, and for judgment for additional rents appellees contend appellant owed. The two cases were consolidated and all parties thereafter moved for summary judgments.

The court entered judgment holding that the renewal of the lease under the option maintained in full all of the provisions of the original lease and that the adjustments to the base rent provided by the original lease term were includable in determining the amount of rent payable under the renewal. The court rendered judgment for appellees for additional rents in keeping with appellees’ contentions.

The briefs indicate the parties can arrive at an appropriate adjustment in the rent when this court on appeal resolves the issue as to the rent adjustment clauses contained in the lease and the renewal option.

The original lease and the renewal option were executed at the same time, and in the course of the same transaction, and we read and construe them together. The renewal option states, “All of the provisions and convenants, other than the monthly rentals, of the original lease shall remain in force and effect”, if the lease is renewed. We hold the express exclusion of the monthly rental provisions of the original lease in the renewal option evidences an intent that the rental provisions spelled out in the renewal option are to control the amount of rent payable under the lease renewal. It is the court’s responsibility to determine the intent of the parties from the language of two documents, and the construction we here indicate appears to be the most likely intent of the parties. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974).

The CPI data in the record reflects the percent increase in the CPI for the first three years of the 25 year lease to be quite small. The accumulated increase at the end of the first three years of the lease was only about one-half of one per cent. In fact the increase in the CPI during the first 9 years of the original lease was so modest appellant paid and appellees accepted as rent the base amount of only $900.00 monthly without any adjustment for changes in the CPI. Thus, it is clear that when the original lease was executed in 1952, inflation was minimal, and those circumstances support the conclusion that it was the intention of the parties in the renewal option to set out specific base monthly figures, which were higher than the base figures in the original lease, and that same would be adjusted only with the fluctuations in the CPI subsequent to the beginning date of the lease renewal. If the intention of the parties had been otherwise, the renewal option could easily have stated that the rental figures set out in the renewal option would be subject to adjustment for flunctuations in the CPI during the term of the original lease as well as fluctuations occurring during the renewal lease. Instead of such a provision the renewal option excluded the rental payment provisions of the original lease.

The appellant and the appellees take conflicting positions as to the construction of the rental provisions in the instruments, and thus it is apparent there is some ambiguity in the renewal provisions, at least insofar as the parties are concerned. The general rule is that a lease is ordinarily to be construed more strongly against the lessor in favor of the lesesee in case of ambiguity. 49 Am. Jur. 2d, Landford and Tenant § 143. This is in accord with the rule announced in Lawless v. Caddo River Lumber Co., 145 Ark. 132, 223 S.W. 395 (1920) and Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933 (1957), that a deed should be most strongly construed against the grantor. A lease operates to convey a particular estate in lands for life or for a term of years, and is therefore in the nature of a limited deed. By analogy we hold that the above mentioned rule of construction applicable to deeds is also applicable to leases.

Appellees urge that appellant’s conduct with reference to the lease payments is evidence of its interpretation of the lease in keeping with the contention of appellees, and that this is a circumstance to be considered by the court in construing the instruments. Some conduct of each of the respective parties is inconsistent with the present contentions of the parties as to the amount of rent to be paid. Under the original lease for some nine years appellant paid only the base rent and appellees accepted same whereas, clearly the lease called for adjustments in keeping with fluctuations in the CPI. For the first five months under the renewal lease appellant paid monthly rent which appellant now contends was too high and was paid by oversight; and appellees claim the rent paid was too low.

The trial court found neither party was estopped or had waived any rights under the contract and this is not an issue on appeal. We have considered the past conduct of the parties with reference to the lease and renewal and find that the conduct of each has varied from present contentions of each, and the conduct of the parties does not supply any substantial evidence to aid in determining the intent of the parties at the time the documents were executed.

We conclude the trial court clearly erred in holding the option for renewal of the lease provides for monthly rental payments to be adjusted by the changes in the CPI since 1952, the inception date of the original lease. The court should have construed the renewal option as providing for the specifically stated monthly base rental subject only to adjustments in the CPI subsequent to August 1, 1977.

The judgment, including the money judgment, in favor of appellees is reversed and remanded for further proceedings consistent with this opinion.

Hays, J., not participating.


author: James H. Pilkinton, Judge.

text:
    AMERICAN MUTUAL LIABILITY INSURANCE COMPANY v. ROCKWOOD INSURANCE CO. Larry SLAUGHTER, Chester ANDERSON, Lennox NORRIS and Jerry OWENS
    CA 80-193
    608 S.W. 2d 24
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980
    [Rehearing denied December 17, 1981.]

      Penix, Penix & Mixon, for appellant.

      Spencer, Spencer & Shepherd and Shackleford, Shackleford & Phillips, for appellee and cross-appellants.
   James H. Pilkinton, Judge.

Larry Slaughter, d/b/a Ark-La Wood Company of Junction City, Arkansas, is engaged in the business of procuring and selling pulpwood. He owns three pulpwood yards — one at Stamps in Lafayette County, one at Village in Columbia County, and the third at Junction City in Union County.

Prior to 1975, all three locations were covered under one workers’ compensation insurance policy issued to Mr. Slaughter. Slaughter’s employees included the woodyard employees and drivers, surveyors and clerical workers. Slaughter had only one logging crew, and the persons working on this sole logging crew were also covered under Mr. Slaughter’s workers’ compensation insurance policy.

In addition to the regular wage employees of Slaughter, there were many independent contractors who produced, sold and delivered pulpwood to the three woodyards. The record shows there were twelve to twenty-two such independent contractors bringing pulpwood into the Village yard; approximately the same number at Stamps; and twenty-five to thirty-five such contractors hauling pulpwood into the Junction City yard. It is undisputed that these were independent contractors, or subcontractors, who had their own equipment ran their own operations, hired and fired their own employees, and merely produced, sold and delivered wood to one of the several woodyards. Under Ark. Stat. Ann. § 81-1306 (Repl. 1976), the prime contractor is liable for workers’ compensation benefits to the employees of an independent subcontractor where the subcontractor fails to secure the compensation insurance coverage required by the Arkansas act.

Due to the number of injuries suffered, an insurance “modifier” had been included in Slaughter’s premium rate, making his rate unusually high. The coverage at that time was with Bituminous Insurance Company and, in connection with attempting to work out a safety program to reduce injuries, the safety director at Bituminous suggested to Slaughter and his independent insurance agent, Lawrence H. Derby of Warren, Arkansas, that a separate policy be obtained for each location. Slaughter and Derby were told that if Slaughter would make his manager at each yard prime contractors, and let them be responsible for the insurance, and assume other duties, including the obtaining of the pulpwood at each yard, then the prime contractor at each yard would become a separate risk from Slaughter’s risk on his wage employees, and thus there would be a savings on premiums. Slaughter followed this suggestion, and through Derby four separate policies were applied for and issued by Bituminous in 1976: (1) to Larry Slaughter, d/b/a Ark-La Wood, covering all of Slaughter’s wage employees as had been the cause previously; (2) to Chester Anderson covering only the wood haulers and their employees, delivering wood to the yard at Village; (3) to Jerry Owens covering only the wood haulers and their employees, delivering wood to the yard at Stamps; and (4) to Lennox Norris covering only the wood haulers and their employees who delivered wood to the yard at Junction City.

As Anderson, Owens and Norris were without any experience rating, their premiums were the standard rate, unblemished by claims for previous injuries by employees or contractors. Thus the three latter separate policies were written at a lower rate than Slaughter’s policy.

Bituminous Insurance Company quit writing workers’ compensation insurance in Arkansas after 1975. Derby then obtained four policies from Rockwood Insurance Company for the year November 7,1976 to November 7,1977. After the first policy year, Rockwood renewed the policies issued to Larry Slaughter and Chester Anderson. Jerry Owens and Lennox Norris were rejected as unacceptable risks because of excessive injuries and claims. Consequently Derby applied for coverage of Lennox Norris and Jerry Owens to the Arkansas Compensation Rating Bureau, which makes random assignments of rejected risks to companies in the “pool”. Norris was assigned to American Mutual Liberty Insurance Company. By luck of the draw, Jerry Owens was assigned to Rockwood which had previously rejected him. Because of the regulations, Rockwood had to accept Owens, and American Mutual insured Norris. A routine audit, conducted by Rockwood after the second year, revealed that Larry Slaughter owned all three yards. The extent of his control, if any, over the procurement of wood and over the wood haulers and their employees covered by the Anderson, Owens and Norris policies is a disputed question of fact.

Rockwood filed this suit and sought reformation of its policies to all three — Slaughter, Anderson and Owens — for the periods of its coverage. Rockwood claimed as grounds for relief that there had been a failure to disclose the true nature of the business relationship existing between Slaughter on the one hand, and Anderson, Norris and Owens on the other. The reformation sought was the inclusion of the experience modifier to each policy, and the total added premium dollar claimed to be due to Rockwood from Slaughter was $9,-212.05.

American Mutual Liberty Insurance Company was brought into the case for a declaration of liability under the policy issued by American Mutual to Norris for the period covering November, 1977 to November, 1978. It was alleged that American has liability for workers’ compensation benefits under its policy to independent haulers and their employees delivering pulpwood and logs to the Junction City woodyard operated by Norris. American Mutual Liberty denied liability, and sought cancellation of its policy on the basis of fraud.

Following a trial on the merits, the chancellor found, and a chancery decree was entered, holding:

(1) That each individual defendant, (Slaughter, Anderson, Norris and Owens) had risk exposures and properly had policies of insurance issued to them to cover such exposure;
(2) That AMLIC was not entitled to a rescission of its policy of workers’ compensation insurance issued to Lennox Norris;
(3) That Rockwood was not entitled to a reformation of ■ its workers’ compensation insurance policies to include Slaughter’s experience modifier; and
(4) That Slaughter was entitled to judgment of and from Rockwood in the amount of $35,711.09-

American Mutual Liberty Insurance Company has taken an appeal from the decree; Rockwood has taken a cross-appeal; and Slaughter, Anderson, Norris and Owens have cross-appealed only to insure that if American Liberty was successful, Rockwood would be required to cover any liability of Slaughter as a statutory employer under Ark. Stat. Ann. § 81-1306.

I

American Mutual first contends that the findings of the chancellor that Lennox Norris was a separate risk is against the preponderance of the evidence. American Mutual thus ' argues that in order for Lennox Norris to have risk exposure he must be an employer within the meaning of the Arkansas Workers’ Compensation Act. The evidence shows that Slaughter’s woodyard in Junction City operated pursuant to a contract with Georgia Pacific. For a stipulated price per cord of wood delivered, Slaughter agreed to arrange for the purchasing, cutting and delivering of wood to the premises of Georgia Pacific. The employees of Slaughter, who were paid by the hour, posed no problem relative to entitlement to workers’ compensation. However “haulers” and their employees posed an entirely different problem. See Stephens and Stephens v. Logan et al, 260 Ark. 78, 538 S.W. 2d 516 (1976).

Slaughter’s woodyard at Junction City was operated by Norris; his woodyard at Village was operated by Anderson; and his woodyard at Stamps was operated by Owens. The evidence shows that these three individuals were not merely employees of Slaughter; they also served Slaughter as contractors. In addition to their salary as employees, each manager was paid an incentive bonus in his capacity as a contractor for Slaughter. Each was individually responsible to make the required quota by obtaining the wood to be brought into the yard managed by him'.' Each manager was responsible for a safety program; each was responsible to maintain the insurance program for the independent haulers and their employees, to see that all injuries were reported, and to keep a check on injured claimants. Each was responsible for carrying workers’ compensation insurance to protect against the statutory liability for haulers and their employees.

As already noted, Section 6 (Ark. Stat. Ann. § 81-1306) provides that where a subcontractor fails to secure compensation (i.e., purchase the policy of workers’ compensation insurance or qualify as a self-insurer) then the prime contractor shall be liable for compensation to the employees of the subcontractor. The evidence clearly shows that Norris was a prime contractor for Slaughter, within the meaning of Section 6, supra, and that Norris subcontracted a portion of that contract, i.e., the cutting and hauling of wood to the Junction City woodyard, to these haulers. The employees of the haulers therefore fell squarely within the provisions of Section -6, supra. We are not concerned here with an employer and employee in the usual case. There are injured persons who are entitled to benefits from persons or entities other than their employer. For instance, there is a “statutory employee” as provided by Section 6, supra. The statutory employee is entitled to benefits, and this right does not depend upon the employee relationship with an employer as defined by the Act.

This court will not disturb the chancellor’s findings on issues of fact unless clearly against the preponderance of the evidence. Newberry v. McClaren, 264 Ark. 735, 575 S.W. 2d 438 (1978). While chancery cases are heard de novo by the appellate court, a chancery court decree will not be reversed where there is a disputed question of fact unless the findings are clearly against the preponderance of the evidence. We cannot say on this record that the finding of the chancellor that Lennox Norris was a separate risk is clearly erroneous (clearly against the preponderance of the evidence).

II

American Mutual next argues that it is entitled to rescission of this contract of insurance, and that the chancery court erred in denying that relief. We do not agree. As we view the record, American Mutual is in no position now to question the validity of the policy it issued to Norris. The evidence shows that as early as May 15, 1978, American Mutual knew there was a relationship between Slaughter and Norris. This relationship came to American Mutual’s attention by a report prepared by Mr. C. P. McConnell, of American’s Little Rock claim office, in connection with a claim of a person named Jimmy Ford under the Lennox Norris policy. The record is clear that American Mutual thereafter accepted premiums under its policy based upon an “upset” payroll of $3.40 per cord with knowledge that Slaughter owned all three yards. By so doing, American waived any right it may have had to question the validity and effect of the insurance contract. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W. 2d 653 (1978); Stephens and Stephens v. Logan, supra. Notwithstanding the McConnell report dated May 15, 1978, showing the relationship between Slaughter and Norris, American Mutual continued to adjust and pay claims on behalf of its assured, Norris. The evidence shows that of the thirty claims paid on behalf of the insured, Lennox Norris, thirteen were paid after May 15, 1978. This action of the company is not consistent with its claimed right to rescind. Continental Insurance Companies v. Stanley, supra. It follows that American Mutual cannot be heard at this time to seek rescission of this contract of insurance, and that the chancery court correctly denied this relief. We have concluded that this case must be affirmed on direct appeal. The cross-appeal of Slaughter, Anderson, Owens and Norris therefore becomes moot.

Ill

On its cross-appeal Rockwood seeks to reform five insurance policies so as to substantially increase the premiums charged. The chancellor denied the reformation, and we hold that he was correct in so doing. In the first place, Rockwood carried the burden of proof to show by clear, cogent, convincing and decisive evidence that these policies were issued under a mistake of fact, induced by fraud or inequitable conduct. We agree with the chancellor the evidence here fails to meet that test. The only contact Rockwood had with the appellees was through Lawrence H. Derby. The record shows that Derby called Emma Armstrong, the general agent for Rockwood in Arkansas, and if Rockwood was misled or defrauded it could only have been through Derby. The record shows that Derby submitted the applications and the experience data on all concerned; and Derby was required to personally guarantee the premiums in writing. Mrs. Armstrong had never met Anderson, Owens or Norris. She admits in her testimony that she made no inquiry as to who they were, and in fact made no check at all on them. Her testimony and actions are consistent with Mr. Derby’s version of the matter. Mr. Derby testified that he gave Mrs. Armstrong complete information in regard to the risks. The chancellor found in effect that the evidence showed a full disclosure of the relationship between Slaughter, Norris, Owens and Anderson, and we cannot say on this record that such decision is erroneous. Completely lacking is any clear, cogent, convincing and decisive evidence of fraud, inequitable conduct or mistake.

It is also admitted by Rockwood that the policies issued by it to Anderson, Owens and Norris had no endorsement or other provision authorizing an experience modifier. Rockwood admits that a premium is settled at the time the policy is issued. The premiums were definitely stated in the policies as issued and, under the circumstances here, we hold that the chancellor was correct in concluding that Rockwood can only collect the premiums agreed upon.

Affirmed on direct and cross-appeals.

Penix, J., not participating.

Warren Wood, Special Judge, participated in this decision.


author: James H. Pilkinton, Judge. Ernie E. Wright, Chief Judge,

text:
    Margaret McCLAIN and Charles J. McCLAIN v. Wilbur M. GILES
    CA 80-227
    607 S.W. 2d 416
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980

      Arnold, Arnold, Lavender & Rochelle, for appellants.

      Wright, Lindsey & Jennings, for appellee.
   James H. Pilkinton, Judge.

This appeal is by plaintiffs below from the findings and judgment, of the circuit court denying damages to them for alleged medical malpractice and negligence.

Margaret and Charles McClain, husband and wife, brought this case against Dr. Wilbur A. Giles of Little Rock alleging that appellee, as surgeon, has used a surgical knife for a purpose that was not proper, and that Dr. Giles had used excessive force in the use of the knife in lumbo-sacral disc surgery which he performed on the left side of Margaret McClain’s spine. It was specifically alleged that such acts constituted negligence and caused the knife blade to break inside her spine. It was also alleged that the broken part of the blade was left in the patient’s spine at the conclusion of the surgery, and that all of these acts resulted in damages to appellants. The Baptist Medical Center System, where the surgery was performed, and the manufacturer of the blade in question, Becton, Dickinson and Company (Bard-Parker Division) were also made parties defendant; however, appellant voluntarily dismissed their claims against those entities after pre-trial discovery revealed that the blade manufactured by the firm, and supplied for use in the operating room by the Baptist Medical Center System, was not defective in any respect.

After November 22, 1974, the date of the surgery in which the blade was broken, the fragment of the broken blade migrated out of the spinal interspace in which it been left and was surgically removed from Mrs. McClain’s back in a second operation performed by Dr. Giles on December 9, 1974.

Mrs. McClain later became symptomatic on the opposite side from where her original complaints arose, and she sought and obtained medical treatment from Dr. Casey Patterson, a neurosurgeon in Dallas, Texas. Dr. Patterson,, on June 4, 1975, performed disc surgery on Mrs. McClain at the same space, but on the opposite side — the right. Dr. Giles had operated on the left side. Mrs. McClain claims that for a short period of time after June 4, 1975, she was asymptomatic but again developed lower back and lower extremity pain, which remained through the trial.

A jury being waived, the trial court found that Dr. Giles was not negligent in the manner in which he used the knife in question and that he had not used the knife for an improper purpose.

Appellants complain on appeal that the circuit court erred in (1) not making specific findings of fact and conelusions of law; and, (2) the findings in the judgment are clearly against the preponderance of the evidence. After determining as a matter of fact that the plaintiffs had failed to prove by a preponderance of the evidence that Dr. Giles was negligent in any manner, the court further found as conclusions of law that the issues of proximate cause and damages were moot; and judgment was entered in favor of the defendant.

Appellant correctly points out that the trial court, upon timely request, under the provisions of Rule 52(a) of the Arkansas Rules of Civil Procedure is required to make specific findings of fact and conclusions of law and to file the same with the clerk of the trial court so that such findings may be made part of the record. In the case before us, the request was not timely. Such motion was filed on October 25, 1979, after a decision letter had been written on October 3, 1979. Appellants’ motion to amend the findings was likewise untimely in that it was filed more than ten days after the entry of the judgment. See Rule 52(b). This subsection is not mandatory, even if a request is filed within the ten-day period. We suspect that part of the problem here resulted from the fact that this case was tried on the 26th day of March, 1979, taken under advisement by the court, and not decided until December 20, 1979. Why this delay occurred is not clear from the record, but it was certainly undesirable procedure.

In the type of surgery performed on Mrs. McClain, the patient is placed face down on the operating table, and the patient’s back is opened up. The most common procedure is to then remove a portion of the laminea or covering of the disc interspace over the nerve on the affected side. The bone is removed and the nerve is identified and lacerated medially. The ruptured disc material, which should be beneath the nerve, is then located. A pituitary rongeur is introduced down into the space and the fragments pulled from beneath- the nerve. A-pituitary rongeur is a long instrument that has an open mouth on the end. There are numerous types of mouths that can be used. The most common one is a mouth that opens straight forward like jaws. Others have down-biting jaws and up-biting jaws which are used to seize and remove disc material from the interspace after the fragments have been removed and the space opened.

There is a ligamentous covering over the disc space, and a No. 15 blade knife is often used to open this covering so that the surgeon can get the other instruments down into the space. Dr. Giles testified that he cut through the ligamentous structure with the knife blade. He described some of the disc material as being tough like crab meat, and with age and degeneration it becomes more fibrous and forms hard scar-ring material within the cartilage structure. He said it was this type of material that he was excising at the time the blade broke.

The operation in question had progressed routinely until the incident involving the broken blade. Dr. Giles describes the occurrence as follows:

Toward the end of this operative procedure, after I had proceeded with decompression of the space to my satisfaction, I again explored the nerve both above and below, up above the space and below the space to make sure that there were no other fragments out that had not been identified. I then retracted the nerve root as far medially as I could. I felt that there was still possibly some disc material in the mid-line area. I then took the No. 15 blade knife once again and introduced it through the ligamentous covering which is in the mid-line area, down into the interspace once again and drew it across the interspace. When I withdrew it from the interspace I realized that the tip of the blade was ruptured and broken off.

Dr. Giles testified that he put the pituitary rongeur back down into the space and felt around gently but could not feel the tip of the knife blade. He then had an x-ray machine brought into the operating room to determine the position of the broken blade. After reviewing the x-ray that had been made, he found that the tip of the blade was lodged deep within the interspace and more over to the patient’s right side. He further said:

In attempting to probe for the broken blade I used a long, straight curette, which is a long instrument that we curette material off with, to try to feel with it. I could not feel the blade with it, so I then took the straight-mouthed pituitary rongeur which is also long and used to retract the fragments with. I felt around with it and could not feel in any form metal on metal. I introduced those two instruments as far down into the interspace as I could and felt around without putting any pressure in any form. I did not retrieve the blade.

After the broken tip of the knife blade could not be retrieved, Dr. Giles called in one of his senior associates, Dr. Adametz, who agreed with Dr. Giles that he did not think it would present a problem to the patient based on what Dr. Adametz had been told. It was decided to leave the fragment in the back rather than risk damage to the nerve, or incur other risks involved, by further probing. The patient said she was not advised of the situation, but this was disputed by appellee. Dr. Giles also said he told Mr. McClain the next day about the incident and the fact that the fragment was still in Mrs. McClain’s back.

Dr. Giles testified that he was not applying pressure to the knife at the time it broke but simply placed the blade in the interspace, attempting to draw it across the ligament laterally in a cutting fashion. He further testified that the procedure he followed in the surgery on Mrs. McClain did not deviate in any way from proper standards and was done according to good medical practices. Dr. Giles expressly denied that any misuse of the knife was a factor in causing it to break. Dr. Casey Patterson of Dallas, Texas, testified by deposition that, based on the history of the case, in his opinion Dr. Giles’ activities in declining to probe further for the lost blade, and leaving it in the cavity, were according to good medical practices. Such testimony, in a case of this nature, is not conclusive evidence that Dr. Giles was not negligent. It was the court’s function in this case, as fact finder, to determine whether Dr. Giles’ acts constituted negligence. In the case before us, the proper purpose of the knife in question, and the standard of care required in using a surgical knife of the type involved in this operation were not contradicted. Only the facts concerning how Dr. Giles used the knife were in question. Thus, the court here, sitting as a jury, was free to accept or reject any of Dr. Giles’ assertions that the alleged negligent acts did not occur.

We agree that the testimony and circumstances in this case, as shown by the record, are sufficient to establish an issue of fact on the question of negligence. Graham v. State, 248 Ark. 6, 449 S.W. 2d 949 (1970). However, it must be remembered that this case was not disposed of when the plaintiffs rested, but was tried to a conclusion. Only then did the trial court accept the defendant’s version and find that the surgeon was not negligent. The fact finder thus resolved the disputed issue of negligence against the appellant, and we are not at liberty to review that finding de novo.

This case was tried before July 1, 1979, the effective date of Rule 52, Arkansas Rules of Civil Procedure, but was not decided by the trial judge until after the rules became effective. Regardless of the test applied on appeal, this case must be affirmed. There is substantial evidence to support the court’s findings, if the old test applies. Taylor v. Richardson Construction Company, 266 Ark. 447, 585 S.W. 2d 934 (1979). And, if the new rule applies, we are unable to say on this record that the court’s finding of no negligence is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, supra.

It must be remembered that appellant as plaintiff below had the burden of proof to show by a preponderance of the evidence that Dr. Giles was negligent. The trier of facts found against appellant on this crucial fact question and, under the circumstances, we must affirm.

Wright, C.J., dissents.

Ernie E. Wright, Chief Judge,

dissenting. I respectfully dissent from the majority opinion. In my view the trial court clearly erred in finding appellant failed to prove by a preponderance of the evidence that appellee was negligent in the manner- in which he used the surgical knife.

The undisputed proof shows the thin bladed knife No. 15 is suitable only for excising skin or soft tissue. Appellee admitted he used the knife to excise ligamentous covering and disc material down deep within the vertebral interspace, that the disc material is tough and looks like crab meat, that in the case of a person with a degenerative disc, as was the case here, the disc material can become more fibrous, and it was while appellee was excising such material that the knife blade broke off. The knife blade was left within Mrs. McClain’s body, and thereafter caused her great pain, was a hazard to her health and a second operation was required for the removal of the knife blade.

There is undisputed expert testimony that the blade of the type of knife used by the appellee would only stand about one-half pound of lateral load applied to the handle. There was further expert testimony that the blade failed due to a lateral load applied to the handle.

In my view the appellee knew or should have known that the disposable thin bladed knife No. 15 he used for excising the degenerative disc material was not suitable for such purpose, and that the use of the knife for such purpose might well result in the blade breaking, as in fact it did.

I would reverse and remand the case for a determination of damages proximately caused by the actions of the appellee in causing the knife blade to break off and be left embedded in Mrs. McClain’s spinal column.

       The Rule does not place a severe burden upon the trial judge, for he needs only to make brief, definite, pertinent findings and conclusions upon the contested matters.


author: Marian F. Penix, Judge.

text:
    TIME INSURANCE COMPANY v. Herbert BOREN and Lois BOREN
    CA 80-247
    607 S.W. 2d 412
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980

      Williamson, Ball & Bird, by: Michael W. Lonsberry, for appellant.

      Dren & Mazzanti, by: Jerry E. Mazzanti, for appellees.
   Marian F. Penix, Judge.

Herbert Boren and Lois Boren, appellees, operate a service station in Eudora, Arkansas. On March 12, 1975, appellant’s agent, Ray Reese, called on the Borens and took their application for a major medical insurance policy. Two days later, on March 14, Lois Boren slipped on ice, severely injuring her back. Ray Reese advised Lois Boren she was covered under the policy because her injury was accidental. Subsequently, she underwent surgery and other treatment for her injured back. The insurance company issued the policy dated March 28, 1975. The agent informed the insurance company the policy was to have been dated March 12, 1975. The policy was reissued with March 12, 1975 as the effective date but a rider was attached. The rider excluded coverage of “any injury to or disorder of the spine, its muscles, ligaments, discs or nerve roots of the insured’s dependent Lois.” The company attached the exclusion rider because of information obtained by the company that Lois Boren had previously received treatment for her back and had not disclosed that treatment on the application. The Borens refused to sign the rider. The Company returned the three premiums which had been paid and denied the coverage.

The Borens filed suit to recover medical expenses, the statutory penalty, attorneys fees and the costs of the litigation. The original complaint prayed for $5,000.00. This complaint was amended to request $4,698,46 less any setoffs paid by appellant and less any deductible amounts for a statutory penalty, attorney’s fees, and costs. The insurance company denied liability and affirmatively pled the policy was not in effect at the time of the alleged injury and further that the Borens had misrepresented Lois Boren’s physical condition on the application. The jury returned a verdict for $4,542.46. This amount is the total medical expenses less the premium. The trial court then reduced the jury verdict by the applicable deductibles to the amount of 83,855.97 and awarded the Borens the statutory penalty of $462.72 and an attorney’s fee in the amount of $1,250.00 plus interest from the date of judgment.

The insurance company (hereinafter referred to as “Time”) appeals. Time alleges a verdict should have been directed for Time because of the Borens’ misrepresentation in the application.

The Agent, Ray Reese, testified the policy was dated March 28, 1975 when it was first issued. He informed Time it was his and the Borens’ intent the policy be dated March 12, 1975. The policy date was revised to March 12 and the exclusion rider was attachd. Reese testified the Borens answered in the negative to all ten question about treatment for previous illnesses or impairments except for one question about eye surgery on Herbert Boren. Lois Boren testified she did not remember answering any specific questions about previous treatment on her back, spine, or muscle disorders when the application was being taken. She said she didn’t mention having been treated by Dr. Alfons Altenberg, an orthopedic surgeon in Monroe, Louisiana the year before the accident, because her back was not bothering her at the time she made the application. The year before the accident her neck was “catching”. She sought treatment from Dr. Altenberg. He prescribed valium and advised her to wear a brace or corset for a sprained back. She continued to work, but after using the brace a week or so, discontinued wearing it. She testified she did not recall Time offering her an option of having the policy issuéd with a special rider excluding coverage for her back or having the premium refunded. She also testified Time notified her that her injury was a result of an illness and not the result of an accident.

Reese testified the day he took the application at the Borens’ station, Lois Boren was not having back trouble. He said she was on her feet on concrete waiting on customers.

Dr. Altenberg testified Lois Boren had some early degenerative arthritis, but it was primarily in her neck area and did not relate to her back. He also testified most persons with the conditions of Lois Boren in 1974 would recover to a normal state.

James Allen Brindowski testified for Time. He testified his job is to decide whether an applicant for insurance is an insurable risk. He said if Time had received Dr. Altenberg’s report on Lois Boren, it would have issued the policy with a rider excluding coverage of her back. However, he did not begin working for Time until 1977 and was unable to testify as to the underwriting policy of Time prior to 1977.

Dr. William J. Weaver testified for Time. Dr. Weaver has treated Lois Boren for several years. He testified she had complained to him about a stomach ulcer and about a chronic backache.

We find no error in the trial Court’s denial of Time of a directed verdict. The trial judge refused to direct a verdict saying . . . “Whether or not she fell and hurt her back would not be material to any alleged back trouble she had of some other nature. I’m trying to say that the fall, a fall is not to be expected as a part of a recurring illness of a back trouble. That’s a new trauma not connected with any illness she might have had to her back.” We find no error in the court’s determination the materiality of the risk was a question of fact for the jury.

The testimony is undisputed the parties intended the policy to be effectively immediately. Therefore, the only question is whether there is substantial evidence to support the jury verdict which determined the company was liable. In order to avoid liability, Time had the burden of proving there was a misrepresentation which was fraudulently or material to the risk assumed or that they would not have issued the policy had the facts been known. We find there to be substantial evidence to support the jury verdict which evidences the failure of Time to meet its burden of proof.

Ark. Stat. Ann. § 66-3208 provides:

Misrepresentation, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy unless: (a) fraudulent; or (b) material either to the acceptance of the risk or to the hazard assumed by the insurer; or (c) the insurer in good faith would either not have issued the policy or contract —, or would not have provided coverage, with respect to the hazard resulting in the loss, if the true facts had been known to the insurer as required by the application for the policy or contract or otherwise.

See also, National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W. 2d 128 (1974).

In Old Republic Insurance Company v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829 (1969), the Supreme Court stated:

The materiality to risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable, and is a question of law only when so obvious that a contrary inference is not permissible.

The jury decided that any omission by Lois Boren of treatment for a sprained back a year before the back injury in question was not material to her recovery for an injury resulting from the accidental slip and fall on the ice.

There is no evidence in the record to reflect that Lois Boren had any back problem or condition at the time the insurance application was made. The evidence was Lois Boren worked several hours a day, seven days a week on her feet selling gas and bait. The case went to the jury and all of the issues were found in favor of the Borens.

In considering the question of the sufficiency of the evidence, evidence must be viewed in the light most favorable to the appellee and all reasonable inferences must be drawn in its favor — only the evidence favorable to the appellee is to be considered. Swink and Co., Inc. v. McEntee and McGinly, Inc., 266 Ark. 279, 584 S.W. 2d 393 (1979).

Time relies upon Findley, Administratrix v. Time Insurance Company, 269 Ark. 257, 599 S.W. 2d 736 (1980). In that case, an applicant had answered in the negative questions dealing with the regularity and problems experienced with her menstrual cycle. The applicant had in truth been experiencing heavy vaginal bleeding every two weeks for some time. This case is distinguishable from the present case. In Findley, the applicant was experiencing problems at the time she made the application. In the present case, Lois Boren had at one time sprained her back. She was feeling no ill effects and felt she had recovered from the sprain at the time of the application.

Nor do we find evidence Time would not have issued the policy to the Borens had all the facts been known. James Allen Brindowski testified the policy would not have been issued had Time received the report from Dr. Altenberg. On cross-examination however, he admitted he did not begin working at Time until 1977 and he had no knowledge of the underwriting policy in 1975. There is no evidence in the record to support Time’s contention the policy would not have been issued. See, Countryside Casualty Co. v. Orr, 523 F. 2d 870 (8th Cir. 1975).

We find sufficient facts existing from which a jury could make findings as to Time’s liability. We find sufficient facts existing from which a jury could find any misrepresentation by Lois Boren was not material to her right to recover under the policy. Therefore, we affirm the decision with regards to liability.

Time’s second allegation of error is in the Court’s award of statutory penalty and attorney’s fees. Time argues the Borens did not recover the amount prayed for in their amended complaint, this amount being $4,698.46.

The Borens originally sued for $5,000.00 plus the statutory penalty and other proper relief. This was amended to request $4,4698.46 less any setoffs paid by Time and less any applicable deductible amounts. The award finally given by the trial court was $3,855.97. This amount was arrived at by applying the deductibles and setoffs. The question becomes, did the appellees receive the full amount for which they prayed? What is the full amount for which appellees sued?

Ark. Stat. Ann. § 66-3238 provides:

Suits against insurers — Damages and attorney fees on loss claims. — In all cases where loss occurs and the . . . insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such . . . corporation . . . shall be liable to pay the holder of such policy, ... in addition to the amount of such loss, twelve percent (12%) damages of such loss, together with all reasonable attorney’s fees . . .

The Supreme Court has held that before the statutory penalty may be imposed the plaintiff must receive the full amount for which she sued. The statute which allows the 12% penalty must be strictly construed. The exact amount sued for must be awarded before this penalty may be added to the plaintiffs recovery. Farm Bureau Insurance Co. v. Paladino, 264 Ark. 311, 571 S.W. 2d 86 (1978); Collum v. Farmers Union Mutual Insurance Co., 256 Ark. 376, 508 S.W. 2d 316 (1974).

The Borens prayed for the amount of Lois Boren’s medical bills and requested this be reduced by whatever setoffs and deductibles were applicable. This was done. The jury’s verdict of $4,542.46 is the medical bills less the $156.00 premium due for the quarter in which the accident occurred. The judge reduced the jury verdict by the deductibles. In his decree, the judge states “By agreement of the parties hereto, after the premium and the deductible amounts are deducted, the normal payment under the policy in question would be $3,855.97.” There is no dispute as to the applicable deductibles and setoffs. The appellees received exactly what they requested. While the request was vague, no effort was made by the appellant to have the appellees clarify their pleading. We find no error in the award of the statutory penalty and a reasonable attorney’s fee.

The appellees’ attorney is awarded an additional fee of $250 for services rendered on appeal plus the costs expended for the appeal.

Affirmed.


author: David Newbern, Judge. David Newbern, Judge.

text:
    John D. TONEY, Sr. v. John T. HASKINS et al
    CA 80-222
    608 S.W. 2d 28
    Court of Appeals of Arkansas
    Opinion delivered November 19, 1980
    [Supplemental opinion on denial of rehearing December 10, 1980.]

      Hoover, Jacobs & Storey, for appellant.

      Cearley, Gitchell, Mitchell A Bryant, for appellees.
   David Newbern, Judge.

The procedural morass which gives rise to this appeal yields an issue which is easier to decide than the facts are to describe. Basically, the question presented is whether the appellant should have been allowed to present an equitable counterclaim which was closely related to the main action and which arose after the issues had been joined in the circuit court. We hold the counterclaim should have been allowed and the entire matter transferred to chancery, and thus the case is remanded for that purpose.

In May, 1977, the appellant Toney, a realtor, purchased land from Weinstein, another realtor. In June, 1977, Toney and Haskins entered an agreement whereby Haskins was to purchase the same land from Toney. In July, 1977, Haskins gave Toney a note and mortgage. A first mortgage had been executed in favor of a bank. The mortgage to Haskins was a second mortgage for the purchase price in excess of that which the bank had agreed to lend.

In December, 1978, Haskins filed a complaint in the circuit court alleging that he and Toney had a fiduciary relationship and that Toney had obtained secret profits in purchasing the land from Weinstein and selling it to Haskins.

In his answer, Toney denied existence of any fiduciary relationship with Haskins and asserted a counterclaim basically sounding in abuse of process. In that pleading, Toney mentioned the note from Haskins to him and asked for attorney’s fees incident to defending the note. Haskins had not at that time failed to make any of his note payments to Toney.

In that same answer, Toney asserted a third party claim against one Roger Mears. Because it is not material to the outcome here, we will refrain from discussing that third party action except to say that it resulted in the filing of pleadings and motions and was ultimately dismissed with prejudice on March 27, 1980.

On March 28, 1980, Toney sought to supplement his answer to the original complaint by Haskins. He asserted a new counterclaim for foreclosure on the note, alleging Haskins had defaulted by failing to make a payment due July 31, 1979- In addition, Toney asserted third party claims against the other named appellees as persons having possible interests in the property subject to the mortgage. Along with this pleading, Toney moved to transfer the entire case to the chancery court, saying foreclosure could only be considered there and the initial claim was in the nature of an accounting which is also equitable in nature.

On April 18, 1980, the court entered an order which: (1) struck the foreclosure counterclaim from Toney’s revised pleading on the bases that it was not “timely filed” and violated Toney’s election of remedies to sue at law on the note; (2) dismissed the third party aspects of the pleading because Toney had not sought leave of the court to file against third parties and because the court lacked jurisdiction to entertain a foreclosure claim; and (3) denied the motion to transfer to chancery.

1. Appealable order.

Before discussing the main problem presented, we must deal with Haskins’ assertion that the court’s order is not appealable. We need only look to rule 2.(a)4., A. R. App. P., to see that any order which strikes a portion of a pleading is appealable.

On this point Haskins cites Davis v. General Motors Corp., 257 Ark. 983, 521 S.W. 2d 214 (1975), saying that, to be appealable, an order must affect a substantial right. While that case was decided long before the A. R. App. P. came into effect, it is consistent with rule 2.(a)2. which says an order is appealable if it effectively determines or discontinues the action. Here, the court, by striking the foreclosure claim against Haskins and dismissing it with respect to the third parties, refusing to transfer to equity and declaring its lack of jurisdiction in the matter has certainly effectively determined that claim. On oral argument Haskins asserted Toney had not been precluded from seeking a foreclosure in chancery, but Haskins cannot satisfactorily explain why Haskins would be precluded from asserting the election of remedies doctrine there if, as Haskins contends, it applies here.

Haskins also cites McConnell and Son v. Sadie, 248 Ark. 1182, 455 S.W. 2d 880 (1970), saying an appeal will not be permitted where taken piecemeal resulting only in delay. We can find nothing here to show this appeal is taken for purposes of delay. As the foreclosure claim has been effectively dismissed, we are in no position to agree that this appeal is “piecemeal” in the sense that term is used in the McConnell case.

2. Timeliness of counterclaim.

Haskins asserts the court was correct in striking the foreclosure claim because of Toney’s delay in asserting it. This brings into focus the court’s remark that the counterclaim was dismissed because it was not timely filed.

Apparently at the trial level, and certainly in their briefs and argument before this court, the parties disputed whether the court was correct in striking the counterclaim for foreclosure pursuant to the provisions of A. R. Civ. P. 15(a) which deals with amendments to pleadings.

Rule 15(a) is in no way applicable. Haskins argued that the filing of his suit for “secret profits” constituted an “anticipatory breach” of the note, thus giving rise to the foreclosure counterclaim at that point. No authority is cited for that novel argument, and thus we need not consider it. Cherokee Carpet Mills, Inc. v. Worthen Bank and Trust Co., 262 Ark. 776, 561 S.W. 2d 310 (1978); Shinn v. First National Bank of Hope, Arkansas, 270 Ark. 774, 606 S.W. 2d 154 (Ark. App. 1980). We will, however, say that as a matter of common sense we fail to see how a request for cash damages for the face value of an unpaid note, but a note on which no payment was due, could be other than an affirmance of the obligation represented by the note itself. Even had Haskins sought rescission of the agreement and cancéllation of the instrument, we would not necessarily translate that into a default occurring at the time the complaint was filed.

The default occurred when Haskins did not make the payment due July 31, 1979, long after the initial pleadings which were filed in 1978. Thus, the right to foreclosure alleged matured after Toney had answered the complaint. Rule 13 (d) provides that such a claim may be filed as a supplemental pleading or may be asserted in a separate action. As Toney attempted to assert the foreclosure as a counterclaim, it must be considered a supplemental pleading to which rule 15(d) applies and not an amendment to which rule 15(a) would apply.

Rule 15(d) requires leave of court to file a supplemental pleading. Apparently no motion was made by Toney. In some circumstances we would have to say that, given the failure to make a motion to be permitted to file the supplemental pleading, the court should have stricken it, but not here. The parties and the court were apparently oblivious to the distinction between an amendment and a supplemental pleading, and no issue arose over the failure of Toney to seek the court’s permission to file the pleading. Given these circumstances, we have no hesitancy in saying that had the court denied a motion to allow the pleading we would have considered that an abuse of his discretion. This is especially true in view of Haskins’ claim, and the apparent agreement of the court, that Toney was barred from asserting foreclosure by the election of remedies doctrine. As mentioned above, an inevitable extension of argument is that Toney could not have sought foreclosure as a separate action in chancery.

The trial court’s statement that the counterclaim was not “timely” made no reference to any requirement in the rules stating it must be “timely,” and we know of none except to the extent timeliness may play a part in the application of rule 13(d). The essence of rule 13(d) is that such a supplemental pleading should be permitted “upon such terms as are just.” Here it would most certainly have been “unjust” to have refused the pleading.

3. Election of remedies.

Haskins’ contention here is, and the court’s decision below was, that because Toney had elected to affirm and sue for damages at law on the note, he elected his remedy to the exclusion of his foreclosure alternative.

Our main difficulty with this argument is in finding the juncture at which such election was made. Other than the delay in asserting the foreclosure, with which we have dealt above, the only fact cited by Haskins showing an election is Toney’s request in his original answer for attorney’s fees.

In Toney’s original answer he defended the note and sought attorney’s fees, but that was solely in response to Haskins’ request for damages represented by the face value of the note as part of the “secret profits” allegedly obtained by Toney.

At no point in that pleading did Toney allege default on the note and seek acceleration and judgment for the full amount or any note payment. The telling reason is that he could not have done so, given that the note was not in default. As stated above, we know of no reason to say Toney was required to regard Haskins’ suit as an anticipatory breach or default on the note. Had Toney prevailed, he might well have chosen to leave the note intact, continuing to demand the annual payments.

The election of remedies rule is not favored by the courts. Owens v. Bill and Tony’s Liquor Store, 258 Ark. 887, 529 S.W. 2d 354 (1974). For it to be applied there must be concurrent, inconsistent remedies. Belding v. Whittington, 154 Ark. 561, 243 S.W. 808 (1922). Haskins’ only serious allegation on this point is that Toney made the fatal election when he answered Haskins’ original complaint. At that time there was really no remedy available to Toney as there had been no default, let alone concurrent remedies.

4. Failure to seek permission to sue third parties.

As one of its reasons for dismissing Toney’s third party complaint against the appellees, other than Haskins, who might have had an interest in the property subject to the foreclosure sought, the court cited that Toney had not complied with the requirement of A. R. Civ. P. 14(a) that a motion and notice be filed to bring in a third party if the defendant seeks to do more than ten days after filing an answer.

We need only point out that rule 14 deals with impleader by a defendant to a claim or counterclaim of a person or persons who “may be liable . . . for all or part of the plaintiff s [or counter claimant’s] claim against him.” That was not the purpose of bringing in these third party defendants to Toney’s counterclaim. Rather, his complaints against them fit precisely the joinder provision of rule 19(a), and if the foreclosure claim had been permitted to stand, as it should have, the court would have been required to join these other appellees as defendants, given the “feasibility” of joining them.

5. Transfer to chancery.

Although the action for “secret profits” could be characterized as a simple restitutionary action and thus one cognizable at law, as opposed to an equitable “accounting,” we agree that, as no argument has been made that the action to foreclose is one the circuit court should hear, and as it is clear the claims of the plaintiff and defendant are related and largely dependent on each other, the entire matter should be transferred to chancery pursuant to rule 18(b).

Reversed and remanded.

Supplemental Opinion delivered December 10, 1980

David Newbern, Judge.

The facts stated in paragraph two of the opinion were ascertained from exhibits filed with the pleadings. The statements are not in any way intended to be binding upon the trial court in any future proceedings.