author: Per Curiam.

text:
    Clyde EASON and Sammy Hatley v. Harold S. ERWIN, Circuit Judge
    89-280
    781 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Mike Everett, for appellant.

      Steve Clark, Att’y Gen., by: Jeffery A. Bell, Deputy Att’y Gen. and J. Denhammcclendon, Asst. Att’y Gen.; and Lohnes Tiner and Wm. R. Wilson, for appellee.
   Per Curiam.

The petitioners seek a writ of mandamus to compel the respondent Circuit Judge Harold S. Erwin to act on certain pending motions and set a case for trial. They are residents of Poinsett County, Arkansas, and have sued Kaneaster Hodges, a Newport attorney, in Jackson County Circuit Court on a promissory note alleging that Hodges owes them approximately $145,000. The suit was filed December 27, 1988.

The petitioners filed a motion for summary judgment on February 3,1989, and according to their petition, the respondent instructed the parties to submit briefs within ten days, which was done. The respondent does not deny the motion is still pending.

The record reflects that the petitioners’ attorney made two personal appearances before the court, one on May 24,1989, and later on October 4,1989, asking the court to rule on the motion and to set the matter for trial. There are other pending motions which the petitioners have asked the court to resolve.

They also moved for the judge to recuse, alleging that Kaneaster Hodges, former United States Senator, is a personal friend of the respondent and that he gave substantial political support to Judge Erwin when he opposed Judge Andrew Ponder in a contested judicial race, and contributed $1,050 to Judge Erwin’s campaign.

The trial judge denied the motion to recuse, stating that he did not know until he was told in court how much Hodges contributed to his campaign. The judge said: “[Hodges] very seldom if ever practices before the Court. He may have been before me once on a default, but I can’t say that. I can’t remember it. He does not practice regular, he doesn’t practice hardly at all in this Court because his practice is not that way. He’s, got a lot of practice elsewhere evidently .... It’s not exactly correct that there is a long-standing family friendship. His father and my father were not particularly good friends. His mother and my mother are, but not the other way. And Fm not particularly close friends with [him].”

Mr. Everett, one of the petitioners’ counsel, said “everything I know of you personally is very good ... I have talked to other attorneys. . . and I have heard indications that you would be fair in this case. ...”

In denying the motion the judge stated:

When I came on here, I recognized the problems that were here, at least the perceived problems that were here, so I am a little surprised at the motion. I can think of five people that are lawyers, maybe even seven to eight in . . . another county, that I consider myself closer friends, if you can call it that, which I don’t call it that, than I am with Kaneaster Hodges. I can think of three lawyers who I felt like took a bigger risk, maybe even five, than Mr. Hodges in what they did in the campaign.
Until someone alleges some sort of bias on my part, gross decisions of the law, what-have-you, Fm not going to recuse.

The judge said that he set cases according to their age and that the petitioners’ case would be set for trial as soon as it could be. He also indicated that he would rule on the motions before the end of October, 1989. He said he would not set the case for December but indicated he would in February or March of 1990.

A mandamus is not a writ of right but is within the discretion of the court, and the party applying for it must show a specific legal right and the absence of any other adequate remedy. State v. Board of Directors of School Dist. of Ashdown, 122 Ark. 337, 183 S.W. 747 (1916). It will not lie to control or review matters of judicial discretion, but only to compel the exercise of such discretion. Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988 (1911).

Essentially, a trial judge controls his docket and the disposition of motions filed. Any other practice would destroy the independence of the trial bench which is one of the trademarks of the American judicial system. But that does not mean a motion or case should be delayed beyond a time reasonably necessary to dispose of it. The Code of Judicial Conduct, Canon 3(A)(5), requires that a judge dispose promptly of court business. In this case there has been no clear showing that the trial judge has yet failed to perform his duty. It does disturb us however that the possibility of delay of a case for delay’s sake is something the trial judge did not address. For example, during the hearing in May, 1987, it was argued that the attorneys for Hodges were trying to continue the case for delay purposes only. The court responded, “Well, what’s wrong with that.” It may be that the docket in Jackson County is congested and it would be unfair to set this case before other cases. It may also be that this is not an uncomplicated debt case. The attorneys for Hodges in a response filed, “vigorously deny” many of the petitioners’ allegations. But counsel for Clyde Eason and Sam Hatley state under oath in their petition that:

Before Plaintiffs’ case was filed, Kaneaster Hodges met personally with both Plaintiffs and their attorney and recognized that he owed the money, but stated that he was in very bad financial position and needed time to work out the payment; he indicated that his income now was mostly derived from serving on the Board of Directors or Trustees of several institutions, including the University of Arkansas, Middle South Utilities, and others, and that a judgment entered against him might cause him to lose those positions.

They contend there is no meritorious defense to the action and Hodges is simply delaying the claim.

We will take the trial court at its word that the motions will be disposed of, if that is not already the case, and that the case will be set for trial early in 1990, absent compelling reasons.

Judges are required, more often than they like, to deal with similar sensitive situations. This is especially true of the small town or rural judge who must preside over cases involving people known quite well by the judge whom the judge sees frequently on a business or personal basis. A judge should not bolt at every charge of bias; but neither should judges be insensitive to what others, who are not of our profession, might think of our conduct. Our code of conduct emphasizes the appearance of propriety as well as propriety itself.

In this case we have a prominent local lawyer who was a political supporter of the judge. It has also been alleged he is a close friend. While the judge and the attorneys for the defendant vigorously deny any bias, we do have a debt case based on a promissory note which has been pending for some time. A motion for summary judgment has been pending seven months. Several requests for a trial setting have been denied.

Under these circumstances and in view of the sworn pleadings filed by the petitioners’ lawyer, one would have to concede that the trial judge needs to do something to demonstrate his objectivity. The best way to demonstrate that objectivity is to promptly attend to the matter.

Writ denied.

Dudley, J., not participating.

Glaze, J., would grant mandamus.


source: Caselaw Access Project

license: Public Domain

text:
    Edmond PARETTE v. STATE of Arkansas
    CR 88-128
    778 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Fredye Long Echart, for appellant.

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

Appellant was convicted of delivery of a controlled substance and sentenced to ten years imprisonment. Notice of appeal was filed on March 4, 1988. On October 17, 1988, this court granted the appellant’s motion to remand and to extend briefing time, and we remanded to the trial court to settle the record. Apparently, the matter has languished in the trial court ever since.

On October 17, 1989, the appellee filed with this court a motion to compel requesting the court to issue an order commanding the court reporter to either transcribe the materials previously ordered to be transcribed, i.e. three handwritten notes and one cassette tape, or to furnish this court with an affidavit explaining why transcription is impossible.

In view of the motions by both the appellant and the appellee, and the court’s previous remand to the trial court for settlement of the record, we now order the trial court to command its court reporter to either transcribe the materials ordered transcribed, three handwritten notes and the audio cassette tape, or to furnish this court with an affidavit explaining why transcription is impossible.

The court further orders that the record be settled within fifteen days and be included by the clerk of the trial court in the record on appeal.


author:
Jack Holt, Jr., Chief Justice.
      David Newbern, Justice,

text:
    IN THE MATTER OF THE ADOPTION OF Angela Michelle PERKINS/POLLNOW
    89-158
    779 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Jack, Lyon & Jones, P.A., by: John W Fink, for appellants.

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellees.
   Jack Holt, Jr., Chief Justice.

This is an adoption case. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).

The appellants, Jim and Wilma Pollnow, assumed care and control of Angela Michelle Perkins/Pollnow in the summer of 1986 and became her legal guardians on September 17, 1986, when she was seventeen months old. Angela’s mother and father consented to the guardianship.

In November 1988, appellee, Jackie Perkins, filed a petition to adopt Angela in the Probate Court of Pulaski County. (In accordance with Ark. Code Ann. § 9-9-204(4)(iii) (1987), her husband, Calvin Perkins, was not required to join in the petition since he was on active duty in the United States Air Force.) The Perkinses previously had adopted two other children with the same biological parents as Angela. The Pollnows filed a counter-petition for adoption. Both petitions were heard on February 27, 1989. By interlocutory decree dated March 1, 1989, which specified that it became final on the same date, the court granted adoption to the Perkinses, finding that it was in Angela’s best interest that she be adopted by the Perkinses based upon the public policy that siblings should be raised together and upon the court’s determination that the Perkinses were morally fit and physically able and suitable to provide for the nurture and care of the minor child. From this order, the Pollnows appeal.

For reversal, the Pollnows contend that the trial court wrongly granted the adoption to the Perkinses based on the fact that the Perkinses had previously adopted Angela’s biological siblings, that the court’s decision is not in the best interest of the child, and that the court wrongly granted the Perkinses a final decree of adoption. We affirm as modified.

The Pollnows claim that the court was wrong in considering the fact that the Perkinses had previously adopted Angela’s biological siblings, Michael and Amber Perkins, in that all legal relationships between Angela and her siblings were terminated under Ark. Code Ann. § 9-9-215(a)(l) (1987) when the Perkinses adopted the siblings. We disagree.

Ark. Code Ann. § 9-9-215(a)(1) provides in pertinent part that a final decree of adoption terminates “all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes . . . .”

In Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981), this court held that the trial court erred in granting visitation privileges to biological grandparents of an adopted child inasmuch as a final decree of adoption terminates all legal relationships between the adopted individual and his relatives, “so that the adopted individual thereafter is a stranger to his former relatives for all purposes.” In doing so, we stated that “[i]t was unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child through the deceased parent.”

The basic rule of statutory construction, to which all other interpretive guides are subordinate, is to give effect to the intention of the legislature. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). See also Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985). The clear intention of the legislature in enacting this provision was to strengthen the adoptive family against interference from blood kin. Consideration by a probate court of the fact that children in the adoptive family are biological siblings of the child to be adopted does nothing to disturb this legislative goal. Furthermore, uniting biological siblings in an adoptive home likely strengthens, rather than weakens, the home. Simply put, the code provision does not pertain to the case at bar.

The Pollnows also argue that the probate court’s decision is not in the best interest of Angela.

Ark. Code Ann. § 9-9-214(c) (1987) permits a probate court to grant a petition for adoption only if such adoption is in the best interest of the child to be adopted. See Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). While this court reviews probate proceedings de novo on the record, we will not reverse a probate court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of witnesses. Id. Personal observations of the court are entitled to even more weight in cases involving the welfare of a young child. See Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1958).

The trial court was presented the following scenario as to the child and parties in litigation: The appellants, Wilma Jean and James Pollnow, live in Little Rock, Arkansas. Wilma is forty-eight years old; James is fifty-three years old. Wilma’s sixteen-year-old daughter lives with them. The Pollnows reside at their two-story, five-bedroom home, and at the Dorcas home, a halfway house for battered women. They spend an equal amount of time at both residences. Wilma earns take-home pay of approximately $1200 a month from her job as director of the Dorcas house; James earns take-home pay of about $2000 per month from his employment with the Air National Guard. He is currently involved in a Chapter 13 bankruptcy.

Angela, who is now three years old, is enrolled in the Child Development Center in Little Rock. She is involved in gymnastics, swimming, tap, ballet, and music and is learning horseback riding at the Pollnows’ farm. She has her own room and playroom at the Pollnows’ home and lives in a room with the Pollnows at the Dorcas house.

Dr. Wrenda Gallien, an assistant professor of child and adolescent psychiatry at the University of Arkansas Medical Center, testified that Angela is a very smart, precocious little girl, much more advanced than the average three-year-old, and that she appears to have been receiving appropriate training and guidance. She also stated that she would be very concerned about taking any child and placing it with new caretakers, the effect of which can be “devastating.” Angela is aware that she has a brother and sister.

Linda Walker, an employee of KTHV, testified that Angela is happy, outgoing, and well taken care of by the Pollnows.

The appellees, Calvin and Jackie Perkins, live in Knob Noster, Missouri. They have been married for ten years. Calvin, who is thirty-four years old, is a sergeant in the United States Air Force. He earns take-home pay of approximately $ 1400 a month. Jackie, who is thirty-two years old, is a housewife. The Perkins reside in a four-bedroom house at the Whiteman Air Force Base.

The Perkinses adopted Amber, who is now six years old, when she was sixteen months old. They adopted Michael, who is now two years old, when he was six weeks old. The Perkinses first saw Angela when she was nine months old. Angela and her biological mother lived with the Perkinses prior to midsummer 1986. Jackie has not seen Angela in one year; Calvin has not seen her in two years.

Angela’s biological father testified that it would be in Angela’s best interest for the Perkinses to adopt her. Angela’s biological mother testified that she had visited with her other children who have been adopted by the Perkinses and she is satisfied with how they are progressing. She also stated that the Dorcas house is not a good place for a three or four year old girl since it is not a stable family environment but a home for abused women.

Undoubtedly, both the Perkinses and Pollnows, as the probate court found, have the “facilities and resources suitable to provide for the nurture and care” of Angela. However, the trial court found that it was in the best interest of Angela that she be adopted by the Perkinses. In light of the facts before us, we cannot say that this finding is clearly against the preponderance of the evidence. Dixon, supra.

Finally, the Pollnows contend that the court wrongly granted the Perkinses a final decree of adoption in that the decree was entered before Angela had lived in the adoptive home for six months.

The trial court granted the Perkinses’ petition for adoption by interlocutory decree of March 1, 1989. The last sentence of the decree provided: “This Interlocutory Decree shall become a final Decree of Adoption on the 1 (handwritten) day of March (handwritten), 1989.” (Emphasis added.) On March 1, 1989, Angela had spent no time in the Perkinses’ home subsequent to the filing of their petition.

Ark. Code Ann. § 9-9-213 (1987) provides:

A final decree of adoption shall not be issued and an interlocutory decree does not become final until the minor to be adopted, other than the stepchild of the petitioner, has lived in the adoptive home for at least six (6) months after placement by an agency or for at least six (6) months after the petition for adoption is filed.

According to counsel for the Perkinses, he erroneously filled in the date that the decree was to become final as March 1, 1989, instead of the proper date, September 1, 1989. Since we review probate cases de novo, we may enter such judgment as the probate court should have entered upon the undisputed facts in the record. See Larey, Comm’r v. Continental Southern Lines, 243 Ark. 278, 419 S.W.2d 610 (1967); Covell v. Bailey, 296 Ark. 397, 757 S.W.2d 543 (1988). Where it appears that a portion of a decree is inadvertently inserted, this court may modify or correct the decree. Larey, Comm’r, supra. Accordingly, we modify the decree to reflect that it shall become a final decree of adoption as of September 1, 1989.

Affirmed as modified.

Hays and Newbern, JJ., concur.

David Newbern, Justice,

concurring. At the conclusion of the adoption hearing, the probate court stated the following:

After reflecting on all the evidence here, there is absolutely nothing wrong with either of the parties, their home environment and what have you, but it’s been the policy of the Supreme Court and this Court, in the past, that when we have children — brothers and sisters, siblings, that is its in their best interest that they know these people, that they grow up with them. And one of these days, having the type of natural parents they’ve had, they’re going to have to rely on one another as having the only family they have besides their adoptive parents.
In my opinion, since it is public policy and the parents — nothing wrong with either one of these households. I think the Pollnows have done an excellent job. Things should have happened before this. There should have been some petitions filed earlier. We’ve let this thing get too far, but it’s not too far or too late to correct, and I am going to place the custody of this child for adoption with the Perkins [es] because they can — they have the other brothers and sisters and it’s only fair that these children grow up to know one another, since it’s all they have. That’ll be the order of the court.
Here are the findings of fact made by the probate court:
A. That Petitioners Jackie Perkins and Calvin Perkins; Wilma Pollnow and James Pollnow, both have the facilities and resources suitable to provide for the nurture and care of the minor child to be adopted.
B. That Jackie Perkins and Calvin Perkins are presently the adoptive parents of Amber Perkins, born February^, 1983, and John Perkins, born April 25,1986. Amber Perkins and John Perkins are siblings of Angela Perkins.
C. That it is in the best interest of Angela Michelle Perkins, that she also be adopted by Jackie Perkins and Calvin Perkins. This is based on the public policy that sibling children should be raised together rather than separately.

The probate court clearly found that there was nothing wrong with either of the homes of the petitioners seeking to adopt the child. The operative finding of the court in determining the best interests of the child was that it should be with its siblings because of “public policy” to that effect. No authority was cited by the trial court for that proposition, and I can find none. This court discussed it a little in Fries v. Phillips, 189 Ark. 712, 74 S.W.2d 961 (1934), where we affirmed a result which separated a brother and sister. We noted the “forceful” argument that the two children should be brought up together, but, in declining to be persuaded by it, we pointed out the children involved had already been separated for a long time and did not know each other.

There is a line of Missouri appellate court cases, exemplified by In the Interest of M.L.S. v. C.S., 710 S.W.2d 452 (Mo. App. 1986), and In re G-, 389 S.W.2d 63 (Mo. App. 1965), in which keeping siblings together is discussed in the context of adoption and the best interests of the child, but it is only one consideration. I find no other cases even discussing the matter, and I have concluded that there is no public policy which favors keeping siblings together, but that it is merely one consideration in determining the best interests of the child.

It is apparent to me that this court’s opinion amounts to a de novo review of the evidence and a finding that the Perkins’s home is more suitable for Angela than that of the Pollnows. I disagree with any such finding. It is clear that the Pollnows have, as the probate court stated, done an “excellent” job with Angela. The judge apparently did not believe or credit witnesses who testified about an argument the Pollnows allegedly had in Angela’s presence. Nor, apparently, did the judge believe or put any emphasis on testimony that Dorcas House was not a proper place for Angela to be. Rather than ignore the trial judge’s evaluation of the witnesses, we should defer to it. Perry v. Nicor Exploration, 293 Ark. 417, 738 S.W.2d 414 (1987); Milligan v. General Oil Co., Inc., 293 Ark. 1, 738 S.W.2d 401 (1987).

I would vote to reverse in this case had the Pollnows argued the probate court gave undue weight to the siblings consideration. The only evidence in the record on the point is the testimony of a psychiatrist who said that it was not important to Angela’s wellbeing that she be placed with her siblings and that removal of Angela from the Pollnows who had been Angela’s guardians since September 17, 1986, would be very detrimental to her. The hearing in this case was held on February 27,1989. Angela had thus lived with the Pollnows only a few days less than two and a half years.

The Perkins’s argument on the siblings point is that Ark. Code Ann. § 9-9-215(a)(1) (1987) prohibits the court from considering keeping siblings together. I agree with this court’s opinion that it does not. The tragedy of the case, however, lies in the fact that Angela was removed from the only real home she had known. Now that she has been with the Perkinses almost nine months, we would probably exacerbate the problem and increase her disorientation by reversing the probate court’s decision.

This court bears heavy responsibility in this matter because on October 3, 1988, we refused to stay the probate court’s mandate until this case could be heard on appeal. The probate court addressed the removal problem only to the extent of saying that adoption petitions should have been filed sooner. This court’s opinion addresses it not at all. My reason for writing this concurring opinion is to express my hope that in the future probate courts will not find public policy without authority and that this court will not make the mistake of refusing to stay an adoption order, which will remove a child from a home of long duration, until the appeal is decided.

Hays, J., joins in this concurrence.


author: Darrell Hickman, Justice.

text:
    Leon BLANKS v. STATE of Arkansas
    CR 89-106
    779 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Appellant, pro se.

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

On May 30, 1986, the appellant was convicted of aggravated robbery and theft of property. He was sentenced to a total of 26 years imprisonment. On January 3, 1989, he filed a motion to correct an illegal sentence. He wanted more prison time. He claimed the court failed to take into account the remainder of two sentences from prior convictions. Blanks had been under a suspended sentence when he committed a 1981 offense and out on parole when he committed the 1986 offense. The remainder of the sentences, Blanks said, should have been run consecutive to his 1986 sentence. Although running the sentences consecutively would increase Blanks’ total sentence, he contends he would be eligible for parole sooner. He claims his eligibility would be governed by the more lenient parole law in effect at the time of his first offense. See generally Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984), supp. opinion on denial of rehearing.

The trial judge denied the motion to correct the sentence. We affirm because the motion was not filed within 120 days of the imposition of sentence. Ark. Code Ann. § 16-90-111 (Supp. 1987).

Blanks relies on the provisions of Ark. Code Ann. §§ 16-93-607(e)(1) and (2) (1987) which read as follows:

When any convicted felon, while on parole, is convicted of another felony, the felon shall be committed to the Department of Correction to serve the remainder of his original sentence, including any portion suspended, with credit for good time allowances. Upon conviction for the subsequent felony, the court shall require the sentence for the subsequent felony to be served consecutively with the sentence for the previous felony.
Any person found guilty of a felony and placed on probation or suspended sentence therefor, who is subsequently found guilty of another felony committed while on probation or suspended sentence, shall be committed to the Department of Correction to serve the remainder of his suspended sentence plus the sentence imposed for the subsequent felony. The sentence imposed for the subsequent felony is to be served consecutively with the remainder of the suspended sentence.

The record does not show if any of the sentencing courts were aware that time remained from Blanks’ previous sentences.

Ark. Code Ann. § 16-90- 111 provides that a sentence imposed “in an illegal manner” must be corrected within 120 days of its imposition, but an “illegal sentence” may be corrected at any time. An illegal sentence is one that is illegal on its face. Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). The sentences in this case were facially valid, within the term of years prescribed by law. Blanks’ argument is essentially that his sentences were imposed in an illegal manner. That type of error must be corrected within 120 days. Since Blanks did not file his motion in a timely manner, dismissal was proper. His remedy, if any, is not under Ark. Code Ann. § 16-90-111.

Affirmed.


text:
    Danny SMITH et al. v. Henry GRAY, Director, Arkansas State Highway and Transportation Department, et al.
    89-187
    779 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Everett & Gladwin, by: John C. Everett, for appellant.

      Robert L. Wilson and Ted Goodloe, Arkansas State Highway Commission, for appellee.
   Darrell Hickman, Justice.

The trial court granted the Arkansas Highway Commission summary judgment, finding that it was discretionary whether the highway department had to dispose of surplus property. In this case it would keep 5.5 acres it no longer needed in connection with the Henderson Ferry in Baxter County. The trial judge’s ruling overlooks several unresolved facts. The judgment is reversed and the matter remanded for further proceedings.

Emmett and Maggie Smith conveyed a 5.5 acre tract to the State Highway Commission under threat of condemnation in 1943 for $1,800. It was used in connection with the Henderson Ferry operation until 1983 when completion of a highway and bridge made the ferry operation obsolete. A local man, Earl Johnson, inquired if the land was for sale and, evidently, was sent papers to begin the transfer process. Among the papers were forms to be signed by the original owner or heirs of the tract. Somehow the appellants became involved and in February of 1984, Gene Smith, the sole heir of Emmett and Maggie Smith, received a letter from Glendol Jackson, Chief of the Right of Way Division of the Arkansas Highway and Transportation Department, stating that since the ferry was discontinued the 5.54 acres of property

is no longer used and is considered surplus to our needs. We are offering this property for sale and as the heir to the original owners. . . you have the option to repurchase the tract for the current fair market value.
We are herein offering you the option to reacquire this tract at the current market value of $55,500.00 as determined by the Department’s appraisers. If this option is not exercised within 60 days after this notice, the Commission will proceed to dispose of the property at public sale.

The letter referred to Ark. Code Ann. § 27-67-322 (1987) as its authority.

Gene Smith promptly responded that he would take the property, but his understanding of the statute was that surplus property could be reacquired by refunding the price originally paid for it. He said this 5.5 tract was the entire original parcel, and so he offered to repurchase it for $1,800.

Mr. Jackson replied that:

The statute quoted [Ark. Code \nn. § 27-67-322] . . . states that “when an entire parcel is declared surplus, it may be reacquired by refunding the price for which it was acquired by the State Highway Commission.” “May” is defined as being directory or permissive, rather than mandatory. Therefore the Department has . . . offered you the option to reacquire this tract at its current market value.
If you do not elect to exercise your option within 60 days from February 27, 1984, the Commission will proceed to dispose of the property at public sale.
Gene Smith filed suit for declaratory judgment alleging that the commission had declared the property surplus, had offered him the option of buying the property and, as an heir of the original owners, he had a right to reacquire it at its original price, not the current market value. The commission denied that it had declared it surplus property and that it had agreed to sell the property or authorize it sold. It did admit that Mr. Smith had made a demand that he be allowed to buy the tract, and that it was acquired from Emmett and Maggie Smith for $1,800.

In response to requests for admissions of fact and genuineness of documents, the highway department admitted that Glendol Jackson had the authority to execute the letters and they were genuine. There was also an interoffice memo dated October 12,1983, requesting that a minute order be prepared so that the 5.5 acre tract could be released in accordance with Arkansas State Highway Commission procedures. The highway commission also admitted that the department did not initially follow the procedures required by Arkansas law by not offering the tract to the Smith heirs.

Three years after the appellants filed suit, the highway commission eventually filed a motion for summary judgment stating that the commission had decided not to declare the land surplus and attached a commission minute order dated January 8,1987, to that effect. The appellants countered with an affidavit and argued that the Arkansas State Highway and Transportation Department had already declared the property surplus, offered it for sale and that there remained facts to be resolved. This was disputed by the highway commission. According to an affidavit signed by Danny Smith opposing the motion for summary judgment, Henry Gray, Director of the Arkansas State Highway and Transportation Department, acknowledged in his deposition that Glendol Jackson had the authority to execute the letters regarding the sale of the property and that a decision had been made to declare this property surplus and offer it for sale.

In its brief to the summary judgment motion, the highway commission argued Ark. Code Ann. § 27-67-322 is discretionary, and the highway department did not have to sell the surplus land. The trial judge simply granted summary judgment, finding the statute discretionary.

The trial court overlooked the basis of the appellants’ lawsuit, which is that the commission had already declared the land surplus, had offered to sell it, and that Smith wanted to buy it and claimed he had a right to do so. The only question to be resolved, they argue, is the meaning of Ark. Code Ann. § 27-67-322.

The appellants were given no opportunity to present their case that the commission had already made the decision and was bound by the acts of its agents and employees. See Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). The party moving for summary judgment has the burden of proving that there are no genuine issues of fact remaining. All proof must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Scully v. Middleton, 295 Ark. 603, 751 S.W.2d 5 (1988).

On appeal the commission argues that Ark. Code Ann. §§ 27-67-321 and 322 require a resolution by the commission before property is sold, regardless of the price; commission employees cannot make this decision. That was not the argument the commission made in its brief submitted with the motion for summary judgment. The appellees simply tried to shortcut the lawsuit. Remaining to be decided were several facts. Was the property declared surplus under Ark. Code Ann. § 27-67-321? Did the agents of the commission have the authority to take the action they did? Did the commission in fact approve this transaction? After deciding these facts, there remains the legal issue of whether the agents or employees of the commission did or can bind the Arkansas State Highway and Transportation Department in view of Ark. Code Ann. § 27-67-321. Or perhaps conceding that the agents did act with the commission’s approval, could the commission change its mind before a resolution was actually passed?

Before granting summary judgment, the trial court should have determined there were no disputed facts. For these reasons, the judgment is reversed and the case remanded.

Reversed and remanded.


text:
    STATE of Arkansas ex rel. Blanche Robinson v. CRAIGHEAD COUNTY BOARD OF ELECTION COMMISSIONERS et al.
    89-68
    779 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Paul E. Hopper, for appellant.

      Henry, Walden & Davis, by: Mike Walden, for appellee.
   Darrell Hickman, Justice.

The question we must answer in this case is, what is the proper legal proceeding to challenge the eligibility of a candidate and seek removal of the candidate’s name from a general election ballot? The answer is mandamus, coupled with a declaratory judgment action.

While the election has been held in this case, with the candidates’ names remaining on the ballot, we choose to decide the central legal issue presented, even though the controversy regarding the candidates’ eligibility is moot. This is not uncommon in matters pertaining to elections where there is a public interest involved and where the issue is such that it tends to become moot before it can be fully litigated. See Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987); Carroll v. Schneider, 211 Ark. 538, 201 S.W.2d 221 (1947).

The appellant, a citizen of Craighead County, petitioned the circuit court for a writ of mandamus ordering the Board of Election Commissioners to remove the names of three candidates from the November 8, 1988, general election ballot. The candidates had won in the Democratic primary the preceding March, and their names had been certified to the Board by the Craighead County Democratic Party Committee. The appellant alleged that two justices of the peace candidates, Hugh Atwood and Tom Cureton, did not reside in the districts for which they were seeking election, as required by Ark. Code Ann. § 14-14-1306(a) (1987). She claimed that candidate Bill Webster was not eligible to run for municipal judge because he was not “of good moral character” as required by Ark. Code Ann. § 16-17-209(a) (1987). The candidates were not named as defendants in the action.

The judge held a hearing ten days before the election and heard the testimony of Bill Penix and Charles Frierson, two of the three members of the Board of Election Commissioners. The two were also the secretary and chairman, respectively, of the county Democratic Party Committee. In his capacity as party secretary, Penix had investigated Cureton’s and Atwood’s eligibility. He disputed the appellant’s claim that the candidates were not residents of the districts for which they sought election. He testified that, although Cureton had been living in an apartment complex in another district, it was because he had been divorced from his wife and had deeded the house to her. Penix was assured by Cureton that he intended to return to the proper district.

Hugh Atwood originally lived within the district which he sought to serve, but shortly after the primary, he moved to another district. When questioned by Penix, he explained that he was living in the other district only temporarily and had bought a lot in his original district, planning to return there.

The claims regarding municipal judge candidate Bill Webster (an incumbent) concerned allegations of use of public property and services to conduct private business, solicitation of charitable donations on court stationery, violations of campaign laws and lack of proper decorum and demeanor on the bench.

None of the candidates testified at the hearing. Before the appellant could present her case, the judge declared that mandamus would not lie to compel the Board of Election Commissioners to remove names from the general election ballot once those names were certified to the board by the county political party committee. The judge also found that the petition had been filed without legal basis and for the purpose of harassment. He imposed ARCP Rule 11 sanctions of $1,000 in attorney fees against the appellant and her attorney.

The judge’s refusal to issue the writ was based on his reluctance to violate a well known legal maxim: mandamus may not be used for the purpose of controlling discretion, reviewing findings of fact or correcting erroneous action. See Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973). The judge concluded that the Board of Election Commissioners had the power to make factual determinations concerning a candidate’s eligibility and that, once that determination was made, mandamus could not compel an opposite result. In fact, the board does not have the authority to declare a candidate ineligible and remove his name from the ballot when there is a dispute concerning the facts or the law.

We have been reluctant over the years to allow either a party committee or a board of election commissioners to remove a candidate’s name from a ballot. See Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964); Carroll v. Schneider, supra, Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942). In Irby, the State Democratic party refused to certify Irby’s name as a candidate for state senator because of this court’s ruling that Irby’s felony conviction in federal court rendered him ineligible for political office. We stated that the chairman and secretary of the state committee acted outside their authority in refusing to certify Irby as a candidate. Our reasons were compelling:

If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action.
We also quoted from the Kentucky case of Young v. Beckham, 115 Ky. 246, 72 S.W. 1092 (1903):
If the committee or governing authority has the authority to decide the question as to who is eligible to hold an office or be a candidate before a primary election, then they would have a discretion and judgment to exercise that could not be exercised by a mandamus. The most that could be done by such a writ would be to compel them to act upon the question.

Since Irby, Carroll v. Schneider, supra, and Ridgeway v. Catlett, supra, were decided, the general assembly has passed a number of new election laws. One of those laws gives county political party committees the duty to investigate and make an affirmative determination of a candidate’s eligibility before placing the candidate’s name on the party’s primary election ballot. Ark. Code Ann. § 7-7-301(b) (1987). No such power has been conferred on boards of election commissioners.

The reasoning of those early cases still applies where boards of election commissioners are concerned. This case well illustrates that the determination of eligibility may often require more than mere ministerial action. Here, the determination of residence requires an exploration of the candidates’ intentions and conduct. Ark. Code Ann. § 14-14-1306(c) (1987). The question of whether a candidate is of good moral character likewise cannot be answered without delving into the facts. To allow the board to consider disputed facts, make findings, and act thereon, is to put it in the same posture as a judicial tribunal. The board, being a ministerial entity, simply does not have that power.

So, the legal maxim that mandamus cannot control discretion or review findings of fact is no impediment. The board may not exercise discretion or make findings of fact concerning the eligibility of a candidate. That determination may only be made by a court, and the court may then direct the board to either place the candidate’s name on the ballot or remove it, as the case may be. The next question to be answered is, by what means may the court direct the board to so act?

Mandamus is traditionally regarded as a remedy to be used on all occasions where the law has established no specific remedy, and justice and good government require it. Ex parte Trapnall, 6 Ark. 9 (1845). It is a writ which is used to enforce an established right. Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987). The right the appellant seeks to enforce is contained in Ark. Code Ann. § 7-5-207(b) (1987). That statute created a right in the people to the proper administration of election laws by prohibiting the inclusion of ineligible candidates on the ballot:

No person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing as a candidate for the office, to hold the public office for which he is a candidate. . . .

The only practical method of enforcing this right is the remedy of mandamus. An action in chancery cannot lie because the chancery court has no jurisdiction in matters pertaining to elections. Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1964). A writ of prohibition may only be directed to a court or adjudicative committee that is proceeding wholly without jurisdiction; it cannot be directed, as a writ of mandamus can, to a ministerial officer. Ark. Code Ann. § 16-115-101 (1987); seealso Sexton v. Supreme Court Comm, on Professional Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988). Quo warranto is not appropriate because it is the state that initiates that proceeding, not an individual. Ark. Code Ann. § 25-16-704 (1987); Cummings v. Washington County Election Comm’n, supra; McKenzie v. Burris, supra.

We have implicitly sanctioned the use of mandamus when seeking removal of a candidate’s name from the ballot or when requiring a board to place a candidate’s name on the ballot. Cummings v. Washington County Election Comm’n, supra; Garner v. Holland, 264 Ark. 536, 572 S.W.2d 589 (1978). See also Ridgeway v. Ray, 297 Ark. 195, 760 S.W.2d 848 (1988) (Glaze, J., concurring). In Cummings, the board placed the name of a Mrs. Linda Oxford on the ballot as a candidate for the county school board, even though she was admittedly not a resident of the school district. Citizens of the district filed a petition for a writ of mandamus commanding the board to remove the candidate’s name from the ballot. Mrs. Oxford intervened in the action. We held that mandamus was appropriate.

While it has its favorable features, mandamus is not a perfect remedy for this type of action. But more than any other remedy, it provides for prompt consideration of the matter, which is often important in election cases. Petitions for writs of mandamus and prohibition have precedence over other actions and, upon written application, must be heard within seven days. See Ark. Code Ann. §§ 16-115-103 and 16-115-104(b) (1987). Yet mandamus does not, as this case demonstrates, provide for the joinder of all affected parties. The trial judge was concerned, as are we, that the candidates in this case were not parties to the action. When a mandamus action is brought in a case such as this, courts will have to see that all necessary parties are joined under ARCP Rule 19. Of course, joinder will not be necessary if the candidates themselves bring the action, or if the candidates intervene, as in Cummings.

Additionally, mandamus does not provide the means for the court to make a declaration concerning the candidates’ eligibility. So a request must be made for declaratory relief in addition to mandamus. Even though the mandamus remedy is combined with a request for declaratory relief, that action will still be considered essentially one of mandamus and must be heard within seven days.

We declare that an action for mandamus and declaratory relief is the proper method of enforcing the right set out in Ark. Code Ann. § 7-5-207(b) which prohibits the inclusion of an ineligible candidate on an election ballot.

Finally, we address the trial court’s imposition of ARCP Rule 11 sanctions. Sanctions should not have been imposed in this case. By signing a pleading, motion or other paper, a party or attorney warrants that to the best of his knowledge, information and belief, formed after a reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as harassment or unnecessary delay. The party asking for Rule 11 sanctions has the burden of proving a violation of the rule. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988).

The appellant essentially brought the proper action and did not abuse the mandamus remedy as contended by the appellee. Her action, while not entirely correct, was warranted by existing law. We find no evidence of bad faith or harassment. Therefore, the order imposing sanctions is reversed.

Because the controversy is moot in this case, we make no ruling on the candidates’ eligibility. We do find the trial court erred in deciding that mandamus was an improper remedy. However, since the candidates were not made parties to the appellant’s action, and since she failed to ask for declaratory relief, her action was not entirely proper. For that reason, we affirm in part and reverse in part.

Affirmed in part, reversed in part.

         The appellant also contended that the act creating the Craighead County Municipal Court is special and local legislation in violation of Ark. Const. amend. 14. For a number of reasons, we will not address that issue.

       We do not decide whether this statute would allow a party committee to declare a candidate ineligible. Our focus is the power of the Board of Election Commissioners.


author: John I. Purtle, Justice.

text:
    John HARPER v. CLARK EQUIPMENT CO.
    89-75
    779 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Bennie O’Neal and B. Dewey Fitzhugh, for appellant.

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

The trial court refused to set the verdict aside after a jury had found in favor of the defendant in the plaintiffs action for personal injuries. The appellant, John Harper, argues that the trial court erred in failing to set aside the jury verdict and in refusing to instruct the jury on punitive damages. We do not consider the appellant’s allegation concerning the proffered instruction on punitive damages because we find that the trial court’s refusal to set aside the verdict was supported by substantial evidence. Therefore, any error on failure to give the instruction would have been harmless.

The complaint in this case was for damages resulting from personal injuries received by the appellant when an overhead guard on a forklift fell upon his head. The appellee, Clark Equipment Company, is both manufacturer and seller of the forklift and the overhead guard.

The appellant’s theories for recovery are based upon strict liability and negligence in design. Because the first question presented concerns liability, it is necessary to consult our standard of review for cases in which the trial court refuses to grant a new trial on the issue of liability.

Rule 59(a)(6) of the Arkansas Rules of Civil Procedure permits the trial court to grant a new trial when the verdict is “clearly contrary to the preponderance of the evidence or is contrary to the law.” On appellate review of a trial court’s denial of a motion for a new trial, the standard is either whether the decision of the trial court is supported by substantial evidence or whether there is a clear and manifest abuse of discretion. When the verdict concerns the issue of liability the substantial evidence rule is applicable; but if the issue is damages, we affirm the decision unless there has been a clear and manifest abuse of discretion.

The appellant presented much evidence in support of his theories of recovery. The proof offered was clearly substantial. However, when reviewing the trial court’s refusal to set aside a jury verdict on liability, we view the evidence which is most favorable to the appellee; if there is substantial evidence to support the verdict, we affirm.

Several witnesses, both expert and lay, testified that the appellee was not negligent in the design and manufacture of the overhead guard. John Morris Squire was called by both parties and testified that he had retired from Clark Equipment Company as director of engineering and that he was familiar with the forklift and overhead guard involved in this case. He further testified that the guard had been tested to the Industrial Truck Standards and later to the American Society of Mechanical Engineers Standard B-56. Squire stated that the design complied with industry standards and had been tested at an equivalent of 10,000 hours of use and that guards with hinge points like the guard in question were tested for endurance and passed. The appellee, Squire asserted, led the field in technology when the forklift was sold and delivered.

The parts manual and operator’s guide were shipped with the forklift in 1966. The literature furnished with the forklift and guard showed the retractable feature that was designed to allow the guard to be moved in order to reach the large battery in its position under the operator’s seat. The testimony revealed that, if bolts were missing, the guard would have been making a rattling noise audible to the operator and a shaking motion detectable to his touch.

In Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989), this court dealt with the issue of a trial court’s refusal to set aside a jury verdict on the allegation that the award was inadequate. We stated: “When the primary issue is the alleged inadequacy of the award, rather than a question of liability, we will sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion.” On the other hand, in considering the refusal to grant a new trial on the liability issue, we have held that: “Where a motion for a new trial is based on the allegation that the jury verdict was clearly against the preponderance of the evidence we will not reverse the denial of the motion if there is substantial evidence to support the verdict, giving it the benefit of all reasonable inferences permissible under the proof.” Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).

In Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983), we said: “We sustain the trial judge’s denial of a new trial when the verdict is supported by substantial evidence and when, as is the usual case, the primary issue is that of liability.” The Warner opinion went on to hold that “[W]hen the only argument on appeal is the inadequacy of the award, we think our rule should be to sustain the trial judge’s denial of a new trial absent a clear and manifest abuse of discretion, a standard of review similar to that we follow when the primary issue is liability and the trial judge has granted a new trial.”

In the present case, the issue is liability; the standard of review is whether the verdict is supported by substantial evidence. We hold that here the verdict was supported by substantial evidence. Therefore, it will not be necessary for us to reach the second issue concerning the refusal of an instruction on punitive damages.

Affirmed.


author: Tom Glaze, Justice.

text:
    Nancy Ann SMITH, et al. v. William G. WRIGHT, et al.
    89-197
    779 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Smith & Smith, by: Norman M. Smith, for appellants.

      McMillan, Turner & McCorkle, by: F. Thomas Curry, for appellee William G. Wright.

      Martin, Trumbo & Sterling, by: Brent Sterling, for appellees Betty Jo Moorman, et al.
   Tom Glaze, Justice.

This case involves the interpretation of John J. Hardin’s will, which was admitted into probate after his death on January 27, 1933. The will created two trusts, but our case concerns the interpretation of only the second trust known as the Burén Hardin Trust. The corpus of this trust consisted of approximately 1,325 acres of land. According to the terms of John Hardin’s will, the trust was to continue for 18 years after the death of the last survivor of one of his sons, Burén Hardin, and two of Buren’s children, Richard and Bettie Jo Hardin. Presently, the trust is still in existence since both Richard and Bettie are alive. During Burén Hardin’s lifetime, he had the right to control and rent the land in the trust and to collect the rents and proceeds from the sale of timber from the land. Under the terms of the will, Burén received these annual returns of the land for as long as he lived. In other words, Burén had a life estate in the annual returns of the land contained in the corpus of the trust. Burén Hardin died on March 22,1987. He was survived by his second wife, Martha Gentry Hardin, four children (Richard Hardin, Bettie Jo Hardin, Marietta Shephard, and Nancy Smith), grandchildren and great-grandchildren. Clara Hardin, Buren’s first wife and the mother of his children, had died in 1982.

The issues in this case involve the provisions of the will devising the annual income from the property after Buren’s death and the fee simple interest in the land itself after the termination of the trust. The appellants, who are three of Buren’s children, Nancy, Richard, and Marietta and their adult children, contend that the Rule in Shelley’s Case or, in the alternative, the Statute of Uses applies to the terms of the will. Therefore, they contend that when Burén died intestate, he owned a fee title in the land in the trust, which was inherited by his four children, subject to his widow’s dower rights. The fourth child, Bettie Jo Hardin, the trustee, and the guardian ad litem for the minor children are the appellees. Upon a motion by all of the parties for judgment on the pleadings, the chancellor found that the Rule in Shelley’s Case and the Statute of Uses were not applicable to the will. On appeal, the appellants raise five points of error. We find no error, and therefore affirm.

The following are the provisions of the will that are in issue:

TWENTY-FIRST: Upon the death of Burén. . . , then, thereafter, until the expiration of the entire period fixed for the continuance of the SECOND TRUST, the annual returns of the SECOND TRUST shall be owned and enjoyed by and paid, share and share alike to the survivors, or survivor, of the widow and the legitimate descendant, or descendants, of Burén, so that the widow and each legitimate descendant (living when any annual returns from the lands of the second trust are gathered or due) shall share equally in such annual returns of the SECOND TRUST as are gathered and/or are due in his (or her) life time, and as often as a legitimate descendant of Burén is born (after the death of Burén) the number of shares (into which such annual returns of the SECOND TRUST are to be divided shall be increased by one, so that each such new born shall have a share.
TWENTY-SECOND: At the expiration of the period fixed ... for the continuance of the SECOND TRUST, the lands of the SECOND TRUST . . . shall, from and after the expiration of the period fixed for the continuance of the SECOND TRUST, be owned absolutely forever in fee by the survivors, or survivor, of the widow and of the legitimate descendant, or descendants, of said Burén living at the time fixed for the expiration of the continuance of the SECOND TRUST, and if there shall be more than one such survivor taking under the provisions of this paragraph, then the lands of the SECOND TRUST shall be divided among such survivors, not per stirpes, but share and share alike in the same manner and with a like share going to each as would be the case if each such survivors were the only child or children of one person and such one person had died intestate at the date of the expiration of the SECOND TRUST the owner in fee of said lands of the SECOND TRUST. If there shall be only one such survivor taking under this paragraph, then such sole survivor taking under this paragraph shall own absolutely in fee all of the lands of the SECOND TRUST.

Under these provisions, the beneficiaries are to receive the annual income from the properties until the trust expires, which will occur eighteen (18) years after the last to survive between Bettie and Richard has died. In other words, the will provides for a life estate interest per autre vie plus a term of years. After the trust expires, the beneficiaries have a remainder interest in fee simple. Paragraphs twenty-three and twenty-four provide that the survivors of Buren’s four brothers and their legitimate descendants shall inherit the interest in the event of the possibility of there being no widow and no legitimate descendant alive at the time of Buren’s death or at the expiration of the trust.

Arkansas is one of the few states that continues to recognize the Rule in Shelley’s case, which provides the following: “If in a conveyance or a will a freehold estate is given to a person and in the same conveyance or will a remainder is limited to the heirs of the body of that person, that person should take both the freehold estate and the remainder.” See Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893). The Rule in Shelley’s case is a rule of law, and we will apply it whenever the language of the conveyance fits under the rule without regard to the conveyor’s intention. See, e.g., Bishop v. Williams, 221 Ark. 617, 255 S.W.2d 171 (1953). Before the Rule in Shelley’s case applies, the following three requirements must all be met: 1) there must be a freehold estate given to the ancestor; 2) by the same instrument a remainder must be limited to the heirs or to the heirs of the body of the ancestor; and 3) the freehold and the remainder must be of the same quality, that is, both legal or both equitable. C.J. Moynihan, Introduction to the Law of Real Property Ch. 6, § 1 (1962). In the present case, the chancellor found that the second and third requirements were not met.

Under the second requirement, a remainder is limited under the Rule in Shelley’s case, when the language used to describe it is construed to refer to the persons who as heirs or heirs of the body would inherit the property of the designated person on his or her death intestate. Restatement (Second) of Property § 30.1(g) (1988). In our case, the chancellor found that the remaindermen were not limited to the heirs or heirs of the body of Burén Hardin for two reasons: 1) his widow was named as one of the remaindermen, and 2) Buren’s heirs did not become fixed at the time of his death. We agree.

Although the appellants concede that the widow was a remainderman in the annual income interest, they contend that the chancellor’s findings are wrong because “nowhere in the second trust is it said that the remainder in fee shall be shared by the widow.” As set out previously, the following language was used to convey the fee simple interest: “the lands of the second trust... be owned absolutely forever in fee by the survivors, or survivor, of the widow and of the legitimate descendant, descendants of said Burén living at the time fixed for the expiration of the continuance of the second trust.” From our reading of this language, we conclude that clearly the widow, if she was living at the time the trust expired, was a remainderman along with Buren’s legitimate descendants. The word, survivor, was used to specify that the members of the class must be alive to take an interest.

Language contained in other provisions of the will corroborates this interpretation. First, the language used in the fee simple conveyance mirrors the language conveying an interest in the annual income until the expiration of the trust. The appellants concede that this annual income provision conveys an interest to the widow. Further, paragraph 24 clearly provides that Buren’s brothers and his brothers’ legitimate descendants shall take the fee simple interest only where every legitimate descendant of Burén is dead and the widow of Burén is dead.

Because the widow was a remainderman in fee simple interest, the Rule in Shelley’s case simply is inapplicable. In other words, when Burén died, his widow was not an heir under Arkansas law. See Ark. Code Ann. § 28-9-214(1) (1987) (establishes heritable estate of an intestate to commence with the children of the intestate and descendants of each child of intestate who may have predeceased the intestate) and Ark. Code Ann. § 28-9-202(2) (1987) (defines a person’s descendants to mean his lineal descendants); see also Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937) (court held widow does not take as the heir of her husband). Thus, because the remainder interest was not limited to Buren’s heirs, the Rule in Shelley’s case cannot apply.

In addition, we agree with the chancellor’s finding that the second requirement was not met because Buren’s heirs were not fixed at the time of his death. In the fee simple conveyance, those in a class of beneficiaries consisting of Buren’s widow and his legitimate descendants who are alive at the time of the expiration of the trust will share in the fee simple interest. The Rule in Shelley’s case is not applicable if the heirs are to be determined as of some other time than the death of the ancestor. 1 American Law of Property § 4.43 (A.J. Casner ed. 1974). In the present case, the beneficiaries of the fee simple interest clearly are to be determined at the end of the trust and not upon Buren’s death. Accordingly, we again affirm the chancellor’s finding that the second requirement of the Rule in Shelley’s case has not been met.

Further, we find no merit in the appellant’s alternative argument that the chancellor erred in finding that the Statute of Uses is inapplicable. Like the Rule in Shelley’s case, the Statute of Uses was made part of Arkansas law by the adoption of the English common law. Ark. Code Ann. § 1-2-119 (1987). The Statute of Uses provides that where one person stands seised of land to the use of another person that other person shall be seised of a like estate as he had in the use. C. J. Moynihan, Introduction to the Law of Property Ch.8, § 5 (1962). In other words, in cases where the Statute is applicable, its effect is to convert an equitable or use estate into a corresponding legal estate. Id. The Statute of Uses does not apply to an active trust. Restatement (Second) of Trusts§67 (1959); see also Randolph v. Read, 129 Ark. 485, 196 S.W. 133 (1917). In Randolph, this court defined an active and passive trust as follows: “a passive trust is one in which the trustee is a mere passive depositary of the property, with no active duties to perform, and... an active trust is one which imposes upon the trustee the duty of taking active measures in the execution of the trust.”

In our case, the trustee was much more than a mere conduit through which legal title passed. The trustee had several active duties that included the following: distributing the annual income of the property, appointing a new person to manage the property after Buren’s death, protecting the property by taking over the control of the property in the event the person managing became delinquent in paying taxes, and executing mineral leases on the property. In sum, John Hardin did not set up the trust merely to transfer the title of the property. Hence, since the trust was an active trust, the Statute of Uses does not apply. Further, we note that the Statute of Uses generally applies to trusts which are created by inter vivos transactions. See Restatement (Second) of Trusts § 68 (1959). Of course, in the present case, the trust was created not by a inter vivos transaction, but a will.

In the last two points of error, the appellants argue that the trial court erred in not applying the Doctrines of Merger and Restraint of Alienation. Since the appellants’ arguments under these points rely on this court finding that the Rule in Shelley’s case applies, we need not address these arguments.

For the reasons stated above, we affirm the trial court.

       We note the appellant’s argument that the use of the word widow was meant to refer to Buren’s first wife and mother of his children. Even if the language of the will supported that contention, which we hold it does not, such a determination is irrelevant to the issue on appeal — whether the Rule in Shelley’s case and the Statute of Uses applies to this case.

       Since all three requirements of the Rule in Shelley’s case must be met before it applies, we need not address the appellant’s argument that the chancellor erred in finding that the freehold and the remainder were not of the same quality and therefore the third requirement was not met.


text:
    Kenneth DOKES v. STATE of Arkansas
    CR 89-14
    779 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for respondent.
   Per Curiam.

In the motion before the court the state asks that we strike a pro se motion filed by petitioner Kenneth Dokes to amend his Rule 37 petition and a twenty-eight page brief in support of that motion. We grant the motion because petitioner Dokes has not shown good cause to warrant a deviation from our rule which provides that Rule 37 petitions cannot exceed ten pages. See Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989). The petitioner’s original petition was eight pages in length. He has not shown that any of the grounds presented could not have been included in the original petition. Due process of law requires an opportunity to have one’s case heard, not an endless variety of unlimited petitions. The motion and brief submitted by the petitioner appear to be a mere ploy to circumvent the rules of this court.

Motion granted.


text:
    Donald JEFFERS v. STATE of Arkansas
    RC 89-63
    778 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered November 13, 1989

      Anthony J. Sherman, for appellant.
    No response.
   Per Curiam.

Appellant, Donald Jeffers, by his attorney, Anthony J. Sherman, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated-Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


author: Jack Holt, Jr., Chief Justice.

text:
    R.S. McCULLOUGH v. Jack L. LESSENBERRY, Circuit Judge, Pulaski County Court, Fifth Division
    89-93
    780 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Friday, Eldredge & Clark, by: Jerry L. Malone, for appellant.

      Wallace, Dover & Dixon, by: Joseph H. Purvis, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant, R.S. McCullough, an attorney licensed to practice law in Arkansas, appeals from an order of the trial court finding him in contempt and imposing as punishment that he provide free legal services to a defendant in a case to be chosen by the court. We reverse and remand.

On August 24,1988, McCullough was representing Hurley M. Jones on a charge of possession of a controlled substance with intent to deliver. Jones had been arrested by North Little Rock police, who had used a confidential informant to approach him to buy drugs. Jones had raised entrapment as a defense to the charge.

The informant, Kenneth Gilmore, had two prior misdemeanor convictions originating out of the North Little Rock Police Department, both of which were the result of reduced felony charges against him. In chambers, prior to trial, the deputy prosecuting attorney requested that the court not allow the informant to be impeached with the convictions.

The following exchange then occurred:
The Court: Well, no one can impeach anyone on a misdemeanor unless it involves a crime of dishonesty.
R.S. McCullough: Before we leave that point, Judge, I’d like to come back there whenever we get together because I’ve got some cases that says the deposition is wrong on that. In an entrapment scenario it is, matters that are not, might not usually be admissible are admissible because they specifically relate to the defendant’s right to pursue the entrapment defense and I’ve got some cases that specifically allow not only that type of information to be dealt with, but not only that but whether or not the person is a convicted, I mean a known drug user or addicted which normally would have no relevance. But the Court says it has relevance in an entrapment case.
The Court: I’m not going to limit you on the issues of credibility and a person being addicted and being an informant would be an issue going to his credibility. But I’m not going to permit misdemeanors to be used to impeach the credibility of the witness on the kind of issues I understand are before me. Whenever they develop you raise those issues and I will hear them.
R.S. McCullough: Well, your Honor, before you really lock up a ruling I’d like to at least look at the other case. Let you look at the other case.
The Court: I’d be glad to do that. And I asked you to raise that issue when you’re ready to.
R.S. McCullough: Well, okay.
The Court: If that doesn’t suit you I’m sorry. That’s the ruling of the Court and if I am in error in that respect then you’ll get a reversal.
R.S. McCullough: Okay. Well —
The Court: You have an issue you want to raise, raise it.
R.S. McCullough: Well Judge, I’m really just trying to avoid a situation. I don’t want to make you mad or anything out there in front of the jury or anything by bringing it up.
The Court: You are not going to make me mad. I just want you to when you’ve got an issue and you’re ready to present it then let me know about it at this time. I’ve told you what I expect my ruling will be.
R.S. McCullough: All right.

During cross-examination of the informant, Mr. Gilmore, the following exchange took place:

R.S. McCullough: Mr. Gilmore, isn’t it true that you first got involved with the police period on doing these type of cases occurred when you got arrested —
Mr. Gilmore: No.
Mr. Black (deputy prosecutor): Objection.

Counsel for the State and the defense approached the bench and conferred with the court, out of the hearing of the jury:

The Court: What was the question?
R.S. McCullough: I asked him wasn’t it true that he first got involved with the police in reference to these type of transactions when he himself got arrested.
The Court: Is there any evidence he was ever arrested for anything?
Mr. Black: Yes, sir. He’s been arrested and convicted of a misdemeanor, your Honor. The whole reason for that question is to get that in through the back door where he can’t ask him direct.
R.S. McCullough: No, I can get that in through the front door, your honor. I’ve got case law that supports that.
The Court: All right. We’ll have a recess and you can show it to me.

During recess, McCullough cited and attempted to discuss in detail several cases with the trial court in support of his position that prior arrests and misdemeanor convictions are admissible on cross-examination where the defense of entrapment is raised inasmuch as the arrests and convictions pertain to motive, plan, or intent of the informant. See Sorrells v. United States, 287 U.S. 435 (1932); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Brascomb v. State, 261 Ark. 614, 550 S.W.2d 450 (1977). As a result, the following dialogue took place:

The Court: May I — Well, no, I’m not sure you understand what the issue is. Did you understand my ruling in Chambers about that?
R.S. McCullough: I understood the Court to say at that time that you hadn’t made a ruling because the point hadn’t been raised and that I was not allowed to present anything at that time. You said to simply raise it and at the time it came up.
The Court: And I would rule upon it. R.S. McCullough: We’d deal with it then. That’s what I thought.
The Court: I find you in contempt. The punishment for contempt will be imposed after trial.

By order of January 9,1989, the trial court found that R.S. McCullough willfully violated an order of the court and therefore found him to be in contempt. As punishment, the court ordered McCullough to represent a defendant free of charge in a case of the court’s own choosing. From this order, McCullough appeals.

For reversal, McCullough contends that the trial court erred in finding him in contempt of court for willful violation of an order of the court inasmuch as the court made no ruling on the admissibility of the informant’s arrests or convictions for the purpose of showing motive, plan, or intent of the informant. We agree.

Appellee concedes in his brief that this is a case involving criminal contempt. In criminal contempt cases, this court examines the record on appeal for substantial evidence to support the decision of the trial court. Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). See also Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).

Ark. Code Ann. § 16-10-108 (a) (1987) provides in pertinent part: “Every court of record shall have the power to punish, as for criminal contempt, persons guilty of the following acts, and no others:... (3) Willful disobedience of any process or order lawfully issued or made by it.” See Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963). However, the general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him, and the command must be expressed rather than implied. Woody. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972). See also Lilly v. Earl, supra.

In examining the conversations between McCullough and the trial court, it is readily apparent that the court did not issue any orders in definite terms as to the duties imposed upon McCullough, nor is there substantial evidence to support the decision of the trial court.

Granted, the court advised McCullough that it “was not going to permit misdemeanors to be used to impeach the credibility of a witness. . . .” However, the court did not preclude McCullough from probing further into the informant’s arrests and misdemeanor convictions for purposes other than credibility, i.e., to show the motive, plan, or intent of the informant. To the contrary, the court invited McCullough to raise the issue at trial.

Although the court and McCullough spoke of “credibility” at times, McCullough obviously and understandably comprehended the court’s invitation to mean that he could introduce evidence concerning the informant’s relationship with police to show the informant’s motive, plan, or intent in the alleged entrapment of the defendant. Such evidence may well have been admissible under our rules of evidence. See Ark. R. Evid. 404(b).

The court did not issue an order commanding McCullough to refrain from raising the issue of the informant’s prior arrests and misdemeanor convictions for the purpose of showing the informant’s motive, plan, or intent. Nevertheless, the court found him in contempt for doing so. At most, we have a misunderstanding between the parties .as to the purpose of McCullough’s cross-examination. This misunderstanding does not provide the basis for a finding of willful disobedience of a court order. We reverse and remand.

Reversed and remanded.


text:
    Francisca OFILI and Joseph Ofili v. OSCO DRUG, INC.
    89-237
    780 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Lynn A. Davis, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue presented by this case is whether the notice of intent to sue on an action for medical injury (contained in Ark. Code Ann. § 16-114-204 (1987)) is required to be served by certified or registered mail pursuant to the statute. We hold that it is and affirm the trial court’s dismissal of the cause of action with prejudice due to the lack of proper service.

On May 1, 1986, the appellant, Francisca Ofili, received a prescription for Indocin (for pain) from her doctor. Her husband, Joseph, took the prescription to appellee, Oseo Drug, to be filled; the pharmacist, however, filled the prescription with Imodium (for diarrhea). Mrs. Ofili took the Imodium and suffered ill effects.

On May 6,1986, she called her doctor to consult him about her medication and, at that time, learned of the error and discontinued taking the Imodium. As a result of the mistake in filling her prescription, Mrs. Ofili filed a lawsuit for medical injury in Pulaski County Circuit Court on January 15,1988, from which she took a voluntary nonsuit on September 13,198 8. A new complaint was filed on August 30,1988, which was subsequently dismissed by the trial court with prejudice because notice had not been mailed to Oseo Drug, Inc., by either registered or certified mail.

From that decision, Mrs. Ofili appeals on two points of error: 1) that she may waive the service of notice of intent to sue by registered or certified mail, as required by Ark. Code Ann. § 16-114-204 (1987), as a result of affirmative actions by her agents and her attorney, and 2) that the trial court erred in granting Oseo Drug’s summary judgment as a result of her lack of literal compliance with the statute.

To begin with, § 16-114-204(a) provides in pertinent part that

[n]o action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed.

The object of this legislative statute was to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of malpractice insurance. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

In regard to Ofili’s first point of error, she cites absolutely no authority to support her contention that she may waive the service of notice of intent to sue as a result of affirmative actions by her agents and her attorney. The effect of the statute is for the benefit of any person alleged to be liable in a malpractice action; the legislature unambiguously declared the proper procedure to commence an action of this type to be service, at least sixty days prior to the commencement of the action for medical injury, by certified or registered mail to the last known address of the person allegedly liable.

It is apparent that the benefits and protections embodied in this statute were established for the person alleged to be liable and may not be waived by the person asserting liability. Perhaps Ofili meant to say that Oseo Drug had waived the notice requirement. Even so, it is perfectly clear that Oseo Drug never effected a waiver in this case. In fact, Oseo Drug contended in its answer to Ofili’s first complaint, as well as her present complaint, that service was defective pursuant to the statute. As a result, this point of error is without merit.

Equally unpersuasive is Ofili’s second point of error in which she alleges that the trial court erred in granting Oseo Drug’s summary judgment as a result of her lack of literal compliance with the statute. It is obvious that the statute means what it says; we said as much in Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), when we affirmed the trial court’s dismissal of a complaint for failure to give notice of intent to sue to the defendants.

In Dawson, the appellant sued appellee for medical injury without first giving the sixty-day notice and voluntarily nonsuited his first claim. He then refiled his claim sixty-nine days after service of process in the first suit and claimed that the filing of the first suit constituted notice in compliance with the statute. We held that the appellant’s action did not comport with either the letter or spirit of the law requiring, in malpractice cases, that the plaintiff give the defendant or defendants sixty days notice before being sued, and that the taking of a voluntary nonsuit in the first suit merely told the putative defendant that a claim potentially existed. In short, it was not the explicit notice contemplated by the statute.

We noted in Dawson, in response to the appellant’s assertion that the copy of the complaint from the first suit gave the appellees information in much greater detail than required under the statute, that:

That may be true, so far as it goes, but we decline to rewrite the statute in that fashion, for two reasons. The statute is plainly intended to give the defendant or defendants in malpractice cases sixty days notice before being sued, for whatever functional use may be made of that information, the obvious rationale being that if a claim can be compromised before suit is filed, publicity adverse to the defendant is thereby averted. Whether the notice provision effectively serves that objective is not ours to judge, but we are persuaded that appellant’s proposed alternative of suing twice, the first suit serving as notice of an intent to file the second suit, hardly comports with either the letter or the spirit of the statutory scheme. The end result is that a defendant, instead of receiving the sixty day notice prior to any suit being filed, is sued twice without receiving written notice in advance of either suit.
Secondly, the filing of a complaint followed by a voluntary nonsuit is, at best, ambiguous. Taken alone, they tell the putative defendant nothing other than that a claim potentially exists. They are not the explicit notice that a suit will be filed which the statute clearly contemplates.

Ofili’s assertion that her affirmative acts and letters equate to service by certified or registered mail is not borne out by statute, case law, or good logic. Accordingly, we affirm the judgment of the trial court.

Affirmed.


text:
    MALONE & HYDE, INC., T. Gerald Bowen Enterprises, Inc., and T. Gerald Bowen v. WEST & COMPANY OF LA, INC., et al.
    89-99
    780 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Davidson, Horne & Hollingsworth, by: James P. Beach-board and Mark H. Allison, for appellant.

      Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   Darrell Hickman, Justice.

The controversy in this case is over the interpretation of the leases of two tenants in the North Mall Shopping Center in Conway. The appellant, T. Gerald Bowen, operates a Piggly Wiggly grocery store in the shopping center. The appellee, West & Company, originally operated a discount department store in the center. In 1986, West sublet its premises to the appellee, Sutherland Lumber and Home Improvement Company. Sutherland opened a Crate Deals store, which, according to its sublease, was to be an outlet for building materials, garden supplies, tools, electronic equipment, and home improvement and personal items.

At some point in 1986, Crate Deals began to sell grocery items. The appellants complained that their lease contained a provision in which the lessor, Trent & Company, agreed to prohibit any other tenant in the center from selling groceries, meat, dairy products or produce. When Crate Deals refused to cease its competitive sales, the appellants filed suit seeking an injunction and damages.

Crate Deals argued that its predecessor in the lease, West, has executed its lease on February 9, 1973. At that time, the Piggly Wiggly lease was not yet in existence, having been executed a month later. Therefore, Crate Deals claimed, it did not have to abide by the covenant in the Piggly Wiggly lease. The appellants pointed to a provision in West’s lease that the premises could only be sublet if the sublease did not conflict with any lease existing at the time of the sublease. At the time of the sublease to Crate Deals, the Piggly Wiggly lease was in existence. Therefore, the appellants claim, Crate Deals is bound to abide by the covenant through the doctrine of equitable servitude.

The appellants filed a motion for a partial summary judgment seeking a permanent injunction. Attached to the motion were affidavits showing that Crate Deals had sold meat, dairy products, and a wide variety of fresh produce. The affidavits also showed that during the Christmas season, Crate Deals brought in a forty-foot trailer from which it sold turkeys at an extreme discount.

Crate Deals did not deny that it was selling the detailed items, but claimed that such sales were minimal when compared with its overall sales. It was also argued that Crate Deals was maintaining the operation of a discount department store, as contemplated by the original lease to West.

The trial judge refused to grant the injunction and this appeal followed. The basis for the appeal is ARAP Rule 2(a)(6) which provides that an appeal may be taken from an interlocutory order by which an injunction is granted, continued, modified, refused or dissolved. We dismiss the appeal because it is not an appeal from a denial of an injunction but is essentially an appeal from the denial of a summary judgment, which is not an appealable order.

Our dismissal is based on more than the mere fact that the appellants’ motion was entitled “summary judgment.” The chancellor, in response to a question by appellants’ counsel, declared that his ruling would not prohibit the appellants from seeking injunctive relief after the development of more facts. It is clear the chancellor has not made a decision on the matter of injunctive relief except to say that he will not grant one by way of summary judgment. The possibility of an injunction being granted after the facts are developed remains. To be final and appealable, a judgment must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Estate of Hastings v. Planters & Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988).

A similar situation apparently arose in the case of Medical & Dental Credit Bureau, Inc. v. Lake Hamilton Camp & Conference Grounds, 291 Ark. 353, 724 S.W.2d 477 (1987). There, the appellant attempted to have a writ of garnishment issued against the appellee. The appellant moved for summary judgment saying there was a defect in the appellee’s answer. The trial court denied the motion.

The case is similar to ours because, just as AR.AP Rule 2 allows an appeal from a denial of an injunction, it allows an appeal from “an order which vacates or sustains an attachment or garnishment.” We found there was no order vacating or sustaining a garnishment, only an order denying summary judgment, which was found not to be appealable. Similarly, the order in this case does not ultimately deny the injunction, it only denies summary judgment.

The appellants seek, in effect, a shortcut to the resolution of their legal dispute. Yet they have only been denied a summary judgment, not an injunction.

Remaining are all the legal issues concerning the leases and the resolution of facts necessary to decide those issues.

Appeal dismissed.


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

text:
    Delbert W. HARRISON v. STATE of Arkansas
    CR 89-150
    779 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered November 20, 1989

      Appellant, pro se.

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

The appellant, Delbert Harrison, was convicted of burglary and theft of property. We affirmed. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985). He then filed a petition in this court asking that he be allowed to proceed in circuit court with post-conviction proceedings pursuant to A.R.Cr.P. Rule 37. We denied the petition in an unpublished opinion. Petitioner then filed this action in circuit court to correct an illegal sentence. Ark. Code Ann.§ 16-90-111 (1987). The trial court denied relief. We affirm.

Appellant’s abstract consists only of a list, or inventory, of the pleadings and judgment. It is flagrantly deficient. When an abstract is flagrantly deficient the judgment must be affirmed for failure to comply with Rule 9(e)(2) of the Rules of the Supreme Court and the Court of Appeals. Grisso v. State, 297 Ark. 546, 763 S.W.2d 661 (1989). Accordingly, we affirm.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The appellant petitioned in the trial court pursuant to Rule 37 and was denied. He then petitioned to correct an illegal sentence and was denied. We affirm the most recent denial pursuant to Rule 9(e)(2) of the Rules of the Supreme Court. The appellant makes it plain in his petition why he believes he should have relief. I have no difficulty understanding the argument in his brief.

Nevertheless, even if we addressed his argument on its merits, the appellant still would not prevail. He is under the mistaken impression that theft of property is a lesser-included offense of burglary. The appellant argues that he was convicted and punished for two crimes arising from one criminal course of conduct, and that burglary cannot be committed without the commission of an underlying offense. Relying on Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982), the appellant erroneously analogizes his case to one in which a conviction and penalty for first-degree battery were set aside and a conviction and penalty for aggravated robbery were affirmed. In Wilson, however, the former offense was in fact a lesser-included offense of the latter. See, e.g., Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983), which discusses battery as a lesser-included offense of robbery and distinguishes cases in which first-degree battery convictions were set aside as lesser-included offenses, citing Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983); Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983); Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983).

It is a misinterpretation of the law to assert, as the appellant has done, that burglary cannot be committed without the commission of an underlying offense. The burglary statute, Ark. Code Ann. § 5-39-201(a) (1987), requires only that a person enter or remain “unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” The actual “underlying offense” need not be accomplished; rather, burglary only requires entry with the purpose or intent to commit any offense punishable by imprisonment. Thus, burglary does not, by definition, entail the commission of theft of property or any other specific crime — it simply involves an unlawful entry “with the purpose of committing. . . any offense punishable by imprisonment.”

While it is true, and is perhaps a somewhat fine distinction, that burglary can be accomplished by unlawful entry with the intent to commit theft of property, the offense of theft of property is separate and distinct because its elements are not the same as those necessary to prove burglary. Theft of property, as defined in Ark. Code Ann. § 5-36~103(a) (1987), requires knowingly taking or exercising unauthorized control over, or obtaining, the property of another person “with the purpose of depriving the owner thereof.”