author: W.H. “Dub” Arnold, Chief Justice. Tom Glaze, Justice, Donald L. Corbin, Justice,

text:
    UNITED INSURANCE COMPANY OF AMERICA and Mark Burcham v. Ann MURPHY
    97-234
    961 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998
    [Petition for rehearing denied March 19, 1998.]

      Butler, Hicky & Long, by: Fletcher Long, Jr.; and Williams & Anderson, by: Leon Holmes and Jeanne L. Seewald, for appellants.

      Daggett, Van Dover, Donovan & Perry, PLLC, by: Jesse B. Daggett, Joe R. Perry, and J. Shane Baker, for appellee.

       Corbin, J., would grant. Newbern, J., not participating.

   W.H. “Dub” Arnold, Chief Justice.

This is a defamation case. The appellants, United Insurance Company of America and Mark Burcham, appeal a judgment of the Crittenden County Circuit Court imposing an award of $600,000 in compensatory damages and $2,000,000 in punitive damages to appellee Ann Murphy for her slander claim. On appeal, the appellants contend that the trial court erred in instructing the jury that damages could be presumed and that they had the burden of proving that the alleged defamatory statements were true. They further maintain that the damage award is excessive and that the trial court improperly allowed hearsay evidence at trial. The appellee cross-appeals the trial court’s remittitur of the jury’s award of $3,000,000 in compensatory damages. While we are persuaded by appellants’ argument that the doctrine of presumed damages should be abolished, we conclude that fairness dictates a prospective application of our holding. We find no merit in the parties’ remaining arguments and affirm the trial court’s judgment.

The appellee was employed by United as a sales representative in home solicitation sales. As an insurance agent, she sold and collected premiums for debit insurance to Arkansas customers in Lee, St. Francis, and Woodruff Counties. From October 1991 until her termination from the company on January 12, 1992, she was under the supervision of Burcham. In early 1992, Burcham began handling her accounts. During this time, he allegedly made defamatory statements to customers that appellee had stolen their premium payments.

The appellee filed a defamation complaint against the appellants seeking both compensatory and punitive damages for Burcham’s statements. At trial, she offered her testimony along with testimony of her former customers. At the close of appellee’s case in chief, the trial court directed a verdict on special damages. The case was submitted to the jury on a claim of slander per se with an instruction that placed the burden on the appellants to prove that the alleged slanderous statements were true. The trial court further instructed the jury that damages could be presumed in a slander per se action. The jury returned a verdict for the appellee, awarding $3,000,000 in compensatory damages and $2,000,000 in punitive damages, and the trial court entered a judgment accordingly. Thereafter, appellants filed a motion for judgment notwithstanding the verdict, or, alternatively, for new trial or remittitur. Following a hearing, the trial court entered an order remitting the compensatory damages award to $600,000, but denying appellants’ remaining motions.

1. Presumed damages

One of the appellants’ primary contentions on appeal is that the trial court erred in instructing the jury with regard to presumed damages. The instruction at issue provided as follows:

However, you are instructed that there is a concept that the law calls slander per se. In such cases, a person slandered is entitled to compensatory damages as a matter of law, and such plaintiff is not required to introduce evidence of actual damages in order to recover compensatory damages. Therefore, if you find that Mark Burcham falsely accused Ann Murphy with being involved in criminal activity or which injured Ann Murphy in her trade, business, or profession, then Ann Murphy is not required to introduce evidence of actual damages in order to recover compensatory damages.

Specifically, the appellants ask that we follow the course of several other jurisdictions and abolish the doctrine of presumed damages in defamation cases. See e.g., Taylor v. Chapman, 927 S.W.2d 542 (Mo. App. 1996); Walker v. Grand Cent. Sanitation, 634 A.2d 237 (Penn. Super. 1993); Ryan v. Herald Assn., Inc., 566 A.2d 1316 (Tenn. App. 1989); Costello v. Capital Cities Comm., Inc., 505 N.E.2d 701 (Ill. App. 1987); Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982).

The genesis of the doctrine of presumed damages can be traced back to the common law. Under the common law, defamation per se encompassed false statements that the plaintiff was guilty of a crime, afflicted with a loathsome disease, as well as false statements prejudicing the plaintiff s ability to engage in his or her profession. See Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997); Ewing v. Cargill, 324 Ark. 217, 919 S.W.2d 507 (1996); Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 488, 489 (1962); Studdard v. Trucks, 31 Ark. 726 (1877). In such cases, the plaintiff could recover compensatory damages without proof of actual damage to reputation. Partin v. Meyer, 277 Ark. 54, 639 S.W.2d 342 (1982); Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960); see also Howard W. Brill, Arkansas Law of Damages, § 33-9, at p.577 (3d ed. 1996) . In other words, damages were presumed from the nature of the defamation, as defamatory statements per se were considered injurious and sufficient to support an award of special damages. Dun & Bradstreet v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961); Braham v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949); see also Howard W. Brill, Arkansas Law of Damages, § 33-9, at p.577 (3d ed. 1996). Where the statements were not actionable as defamation per se, the tort was considered defamation per quod and required a showing of special damages. Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990).

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the United States Supreme Court held that, in cases involving media defendants, states may not allow recovery of presumed or punitive damages absent a showing of knowledge of falsity or reckless disregard of the truth on the part of the publisher. Absent malice, a private plaintiff is limited to recovering damages for actual injury, which included “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Id. at 349. Thereafter, in Little Rock Newspapers, Inc., v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), a case involving a private plaintiff and a media defendant, we adopted the requirement that, to recover damages in a defamation case, a private plaintiff must prove reputational injury:

The law of defamation has always attempted to balance the tension between the individual’s right to protect his reputation and the right of free speech. To totally change the character of defamation to allow recovery where there has been no loss of the former right, would be an unjustified infringement on the First Amendment.

Id. at 31. However, one year after our decision in Dodrill, the Supreme Court clarified in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), that “permitting recovery of presumed and punitive damages absent a showing of ‘actual malice” does not violate the First Amendment when the defamatory statements do not involve matters of public concern. Id. at 763.

Since 1985, the question of whether damages to reputation may not be presumed in cases against non-media defendants has remained an open one in our state. See Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985)(stating that the Gertz decision left open the question of whether the defamation per se concept remained in the law with respect to actions against non-media defendants); and Ransopher v. Chapman, supra (“[W]e may entertain an argument in the future that the awarding of compensatory damages without proof of loss should not occur”).

As the Supreme Court stated in Gertz, the presumed-damage rule in defamation cases is an oddity of tort law. Gertz, 418 U.S. at 349. As one commentator has ably described, “[a] number of evils flow from the anomaly of presumed damages.” David A. Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev. 747, 749 (1984). Among the problems inherent in presuming harm are the absence of criteria given to juries to measure the amount the injured party ought to recover, the danger of juries considering impermissible factors such as the defendant’s wealth or unpopularity, and the lack of control on the part of trial judges over the size of jury verdicts. Anderson, supra, at 749-752. Moreover, by allowing presumed damages for certain words that fit within the per se categories but precluding actual damages for other words without additional proof of damages, the common law rule “creates unjustifiable inequities for plaintiffs and defendants alike.” Nazeri v. Missouri Valley College, 860 S.W.2d 303, 313 (Mo. banc 1993). We believe that the better and more consistent rule, as set out in the Dodrill case, is to require plaintiffs to prove reputational injury in all cases. See also Prosser & Keeton on the Law of Torts §112, at p. 797 (5th ed. 1984)(stating that “courts should require as a minimum for recovery in every case either evidence from which harm to reputation could reasonably be inferred or direct evidence of harm to reputation.”).

In the present case, as we will discuss in the following point, the appellee submitted proof of actual damage to her reputation. Under these circumstances, it would be unconscionable to require her to produce this same proof again at another trial. Thus, we conclude that fairness dictates a prospective application of our holding. See Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986). From the date of this opinion forward, we hold that a plaintiff in a defamation case must prove reputational injury in order to recover damages. Accordingly, we overrule all prior decisions inconsistent with this opinion.

2. Excessive damages/remittitur

Appellants further maintain that the damages award is excessive. When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. Builder’s Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). In its order denying appellants’ motion for new trial, the trial court found that appellee had proved actual damage to her reputation. We agree that this evidence justified the award as remitted by the trial court in the present case.

The appellee testified at trial that, after Burcham made the statements that she had stolen her customers’ insurance premiums, she contemplated going to jail. She explained that her life was no longer the same, that she was “miserable,” and that the entire experience had been a “nightmare.” She described how people were now afraid to let her in their homes. The appellee’s husband, Lonnie Murphy, testified that she was “hurt real bad” and was “real tore up” over Burcham’s defamatory publications. He related that, after the incident, she would “sit around and cry” and had to take nerve pills and sleeping pills because she was so upset. According to Lonnie, their seven-year-old son did not understand these changes in his mother.

The appellee also offered the testimony of several of her former customers. Florence Oglesby “could not say” that appellee still had a good reputation in the community. According to Oglesby, when appellee’s name arises in conversation, “people still talk about what she’s supposed to have done.” Ruby Anthony testified that her reputation in the community had changed, as she is known as a “thief.” Elizabeth Moie testified that Burcham’s publication “really knocked on [appellee’s] reputation.” Carol Lindeman testified that, while appellee’s previous reputation of truthfulness had been “tops” or “number one,” Burcham’s statements “really bothered” her and caused her to “lose faith” in appellee. According to Lindeman, after the statements were made, none of appellee’s customers wanted to purchase insurance from her. Wilma Stennett testified that she believed the state-merits that Burcham had made, that the statements changed her opinion of appellee, and that she tried to convince others that Burcham’s statements were true. As to the argument on cross-appeal, remittitur is appropriate when the compensatory damages awarded cannot be sustained by the evidence. Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995). We agree with the trial court that, while the appellee’s evidence of actual damages supported an award of $600,000, the jury’s award of $3,000,000 in compensatory damages cannot be sustained by the evidence.

Turning to the issue of punitive damages, when reviewing such an award, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Punitive damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another. Id. When reviewing the testimony of appellee’s former supervisor, Bobby Carey, the jury could have concluded that Burcham intentionally made the defamatory statements because he did not like to work with women and did not want appellee under his supervision. Moreover, when hearing the testimony of Jo Ann Scroggins, one of appellee’s customers, the jury could have further concluded that an additional motive of Burcham’s was to enlist appellee’s customers as his own. Particularly, Scroggins testified that, when making the defamatory remarks, Burcham told her more than once, “I’m your next agent.” Regarding United, there was evidence presented at trial that the company’s officers knew that Burcham had made the defamatory statements, were aware that Burcham was not following company audit or documentation procedures to substantiate the allegations of theft, and did nothing to stop Burcham and even permitted him to terminate appellee on the basis of these faulty allegations. In light of this evidence, the jury could have concluded that appellants displayed a conscious indifference for appellee and that their acts were done with the deliberate intent to injure her. See McLaughlin, 324 Ark. at 371-372; see also Ledbetter v. United Ins. Co., 845 F. Supp. 844 (M.D. Ala. 1994). In sum, when viewing the facts in this case, the amount of punitive damages does not shock our conscience.

Before leaving this point, we will not address appellants’ constitutional argument, based on BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), that their due process rights were violated because they did not receive fair notice that they could be subject to such a severe penalty. They did not make this constitutional argument below; therefore, it is waived. Sebastian Lake Pub. Util. v. Seb. Lake Rlty., 325 Ark. 85, 923 S.W.2d 860 (1996).

3. Burden of proof

Appellants further allege that the trial court erred in instructing the jury that they had the burden of proving that the alleged defamatory statements were true. The instruction at issue provided in pertinent part:

If you find that any statements made by Mark Burcham were true then you are instructed that this is a defense to the defamation charge.
Mark Burcham and United Insurance Company of America contend that any derogatory remarks about Ann Murphy were true. Mark Burcham and United Insurance Company of America have the burden of proving this contention.

In its order denying appellants’ motion for new trial, the trial court acknowledged that appellants had objected to this instruction at trial. The appellee, however, disputes the fact that a proper objection was made. We need not decide whether an objection was made because it is clear that appellants failed to proffer an instruction containing what they saw as a correct statement of the law on the proper burden of proof on the issue of falsity. This failure to proffer or abstract a proposed instruction precludes us from considering appellants’ argument on appeal. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, 469 U.S. 847 (1984).

4. Hearsay objection

Finally, appellants assert that the trial court erred in allowing the appellee’s witnesses to testify that persons not called at trial said that Burcham said that the appellee was a thief. Appellants concede that we decided this issue adversely to them in Wal Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992). In that slander case, the plaintiff testified that her sister’s mother-in-law had been told by one of the Wal-Mart employees that the plaintiff had been caught stealing. On appeal, we rejected WalMart’s hearsay argument, holding that the statement was not offered to prove the truth of what was said, but to prove the fact that it was said. Id. at 443. In making their hearsay argument in the present case, appellants ask us to overrule our decision in Dolph. We decline to do so.

Based on the foregoing, we affirm the decision of the trial court.

Newbern, J., not participating.

Special Justice Thomas Prince, concurs.

Glaze, Corbin, and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting. I join Justice Corbin’s dissent, but add that, by today’s decision, we change case law on “presumed injury” in this defamation suit that has been the rule in Arkansas since statehood. I believe we should have issued a caveat that the court intended to consider the soundness of the rule and the court’s possible overruling it.

Brown, J., joins this dissent.

Donald L. Corbin, Justice,

dissenting. I concur with the ultimate result reached in this case, but I dissent from the majority’s announced prospective rule that henceforth every plaintiff in every defamation case, whether or not the First Amendment is implicated, must prove reputational injury in order to recover damages. If the majority’s decision means that plaintiffs must now prove actual loss in order to recover in a slander action, I strongly dissent.

The rationale behind the doctrine of presumed damages for slander per se is best illustrated by the dissent of Justice M. Steele Hays in Lile v. Matthews, 268 Ark. 980, 598 S.W.2d 755 (1980), wherein he wrote:

The reasoning behind this cardinal principle of libel and slander is that some types of defamation are so clearly inimical to character, reputation and regard of the person defamed that injury to that person’s ability to earn a livelihood is presumed.

Id. at 989, 598 S.W.2d at 760.

Professor Prosser explains further:

[T]here developed the rule that slander, in general, is not actionable unless actual damage is proved. To this the courts very early established certain specific exceptions: the imputation of crime, . . . and those affecting the plaintiff in his business, trade, profession, office or calling — which required no proof of damage. The exact origin of these exceptions is in some doubt, but probably it was nothing more unusual than a recognition that by their nature such words were especially likely to cause pecuniary, or “temporal,” rather than “spiritual” loss. . . . For these four kinds of slander, no proof of any actual harm to reputation or any other damage is required for the recovery of either nominal or substantial damages. Otherwise stated, proof of the defamation itself is considered to establish the existence of some damages, and the jury is permitted, without other evidence, to estimate their amount. [Footnotes omitted.]

W. Page Keeton, Prosser & Keeton on the Law of Torts, § 112, at 788 (5th ed. 1984).

Chief Justice Carleton Harris answered the question of exactly what harm is caused by slanderous words, such as those used by Appellants in the case before us, when he wrote in his dissent in McMillion v. Armstrong, 238 Ark. 115, 378 S.W.2d 670 (1964):

The unfortunate aspect about an accusation that reflects upon one’s character, is that, even if totally untrue, and perhaps not really believed by the recipients of the information, such remarks almost invariably leave a question in the minds of the hearers, and every time the accused person’s name is mentioned, the accusation is remembered, and the mental reaction, consciously or subconsciously, is — “I wonder.”

Id. at 126, 378 S.W.2d at 676.

Appellee requested that we examine the decision of the Maryland Court of Appeals in Hearst Corp. v. Hughes, 466 A.2d 486 (Md. 1983). In doing so, I came to the inescapable conclusion that our long-established case law, stretching over more than a century, is just as important to present-day defamation law, due to the difficulty faced by all plaintiffs in proving the damage to their reputations caused by the slanderous remarks. The following observations by the Maryland court should be as persuasive to this court as they were to the Maryland majority:

We are directed by Hearst to the recent decision of the Supreme Court of Kansas in Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1243 (1982), where that court adopted the rule that “[u]nless injury to reputation is shown, [a] plaintiff has not established a valid claim for defamation. ...” This approach, in our view, fails to respect the centuries of human experience which led to a presumption of harm flowing from words actionable per se. One reason for that common law position was the difficulty a defamation plaintiff has in proving harm to reputation. Eaton, supra, at 1357 describes the problems:
The conclusive presumption of injury for certain kinds of defamation derives from the recognition that injury to reputation is extremely difficult to demonstrate, even when it is obvious that serious harm has resulted. Identifying and locating those persons in the community who may think less highly of the plaintiff because of the publication is difficult, especially when the defamatory statement has been indiscriminately circulated. And once located, it is the rare witness who will admit to the plaintiff or testify in court that his attitudes toward the plaintiff have changed as a result of the publication, when by doing so he admits that he changed his opinion without determining the truth or falsity of the statement.
Ordinarily, the plaintiff will be able to present witnesses who will testify only that the plaintiffs reputation has been good, that their own opinion of the plaintiff has not changed, but that the plaintiffs general reputation in the community has suffered as a result of the publication. This kind of testimony often lacks credibility because it is bottomed on hearsay and imputes to others a change in attitude which the witnesses themselves thought unnecessary. And this kind of evidence is usually insufficient to establish the necessary causal connection between the defamatory publication and the alleged decline in community standing. In short, a requirement of actual proof of injury to reputation has always been thought to reduce considerably any chance for adequate compensation. [Footnote omitted.]

Id. at 495 (emphasis added).

The facts in the instant case bring the importance of the Maryland court’s rationale into perspective. Here, the Appellants made much of the fact that Appellee’s witnesses testified that their opinions of Appellee had not changed after Appellants had made the accusations that she had stolen from them. This is precisely the reason why the doctrine of presumed damages remains a viable, workable, and necessary facet of common law. This is also why the great majority of the states still cling to the concept of presumed damages, at least in some areas of defamation law. To do what the majority has prospectively done today will do nothing short of gutting our law of defamation, leaving our citizens no real recourse against those who would unjustly accuse them of heinous acts.

Furthermore, I cannot accept the majority’s reasoning that a number of evils flow from presumed damages, namely the absence of criteria for juries to measure the amount the injured party should recover, the danger that juries will consider impermissible factors such as the defendant’s wealth or unpopularity, and the lack of control that trial judges will have over the size of jury verdicts. The reason I cannot accept this rationale is that even with the rule announced today, there is no real criteria with which juries may measure the damage to a person’s reputation in terms of dollars and cents. Moreover, instructing juries as to the concept of presumed damages is no less a guide in determining the amount of an award than are claims of outrage, mental anguish, or emotional suffering. The only way to adequately provide a measuring stick to juries for damages is to require that all damage to any plaintiffin any cause of action must be capable of being reduced to an exact dollar amount. Undeniably, such a requirement would be preposterous. The majority’s reliance on such alleged problems caused by presumed damages is just as preposterous. Furthermore, the danger that there will be impermissible considerations of a defendant’s wealth or unpopularity in assessing damages is present in every civil action tried before a jury, as are concerns that a trial judge will not be able to control the size of the verdicts.

Additionally, I take issue with the majority’s reasoning that by allowing presumed damages for certain words that fit within the defamation per se category, but “precluding actual damages for other words without additional proof of damages, the common law rule ‘creates unjustifiable inequities for plaintiffs and defendants alike.’” The reason for distinguishing certain types of defamation is based upon the gravity of the words said; to call someone a criminal or to say that he or she is crooked in his or her business dealings, trade, or profession is so injurious to that person that damage to his or her reputation can clearly be presumed. To require those persons to prove actual injury to their reputations is tantamount to abolishing the tort of defamation altogether. This I am unwilling to do, and I respectfully dissent.

Glaze and Brown, JJ., join in this dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Leavon BEARDEN v. J.R. GROBMYER LUMBER CO. and Delsondro Sims
    97-571
    961 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998
    [Petition for rehearing denied March 19, 1998.]

      J.R. Nash, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and Julia L. Busfield, for appellee J.R. Grobmyer Lumber Co.

       Brown, J., not particpating.

   David Newbern, Justice.

The main issue in this appeal is whether the Trial Court erred in refusing to allow the appellant, Leavon Bearden, to introduce inadmissible evidence to rebut other inadmissible evidence that was before the jury. We hold that the Trial Court did not err in that respect. We also conclude that it was not error to overrule Mr. Bearden’s motion for a new trial. We affirm the judgment in favor of appellees J.R. Grobmyer Lumber Co. (“Grobmyer”) and Delsondro Sims.

On a rainy day in September 1994, Leavon Bearden drove his pickup truck west on four-lane Roosevelt Road in Little Rock. Delsondro Sims, driving a large, unloaded truck owned by his employer, J.R. Grobmyer Lumber Co., was headed east on Roosevelt. As the truck driven by Mr. Sims approached a curve to the right, Mr. Sims braked and “geared down” due to the presence of a slower tractor-trader ahead of him. He moved to the inside lane to pass the tractor-trailor. Mr. Bearden was on the inside lane going west.

As he was braking or gearing down, Mr. Sims felt a “twitch” in the truck he was driving, meaning that it slid somewhat to the left. He felt a collision and then looked in his rear-view mirror and could see Mr. Bearden’s damaged truck crossing into the eastbound lane. Mr. Sims stopped, put out emergency signals, and called his employer.

Mr. Bearden’s truck had struck, or had been struck by, the rear tire and bed of the truck being driven by Mr. Sims. Mr. Bearden was seriously injured, and his truck was damaged beyond repair. He sued Mr. Sims and Grobmyer, alleging that Mr. Sims had been negligent in the operation of the Grobmyer truck, which was undamaged by the collision.

At the trial, counsel for Mr. Bearden called Mr. Sims as his first witness. Mr. Sims was asked if the Grobmyer truck had crossed the center line into Mr. Bearden’s oncoming-traffic lane. He denied that it had. He was questioned about the somewhat equivocal testimony he had given in a deposition, but he continued to deny consistently that his vehicle had crossed the center line and insisted that he had never said it had done so. Then, during continued questioning of Mr. Sims by Mr. Bearden’s counsel, the following occurred:

Q: Well, where on your truck was the contact with Mr. Bearden’s vehicle?
A: We never estabhshed where the contact was. No one never established where it was at or anything. I mean, the police never, you know, gave a ticket or •— they sent me on over to Georgia-Pacific.

Mr. Bearden’s counsel neither objected nor asked that the statement about the ticket be stricken. Shortly thereafter he passed the witness to counsel for Mr. Sims and Grobmyer. During the ensuing cross-examination the following occurred:

Q: Mr Sims, you stayed and the police officer investigated this accident?
A: I guess they did.
Q: Okay.
A: I never got, you know, anything from it.
Q: You said, in answer to Mr. Nash’s question, no citations were given?
A: No, no citations.
Q: He’s asked you —

At that point Mr. Bearden’s counsel asked to approach the bench. He objected to the testimony concerning the officer’s failure to issue a citation. Opposing counsel responded that the statement had been made initially in response to direct examination by Mr. Bearden’s counsel. Mr. Bearden’s counsel said he had not heard the earlier statement and that, in any event, it was not responsive to any question he had asked. The Trial Court offered to admonish or instruct the jury to disregard the testimony, and Mr. Bearden’s counsel said he would have to think about it.

Mr. Bearden’s counsel did not seek an admonition or instruction on the point but ultimately asked that he be allowed to inquire of the officer who investigated the accident as to what caused the accident and whose fault he thought the accident was and to bring out a statement, apparently from the police report, that Mr. Sims was speeding when the accident occurred. The request was refused.

1. Curative admissibility

Evidence of a conviction or a bond forfeiture resulting from a violation of traffic laws is inadmissible in any civil action. Ark. Code Ann. § 27-50-804 (Repl. 1994); Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 828 (1963). In Girard v. Kuklinski, 235 Ark. 337, 360 S.W.2d 115 (1962), it was explained that if the record of a conviction is inadmissible, there is even more reason to hold that evidence of a traffic citation, which is a “mere charge,” is inadmissible. We have not dealt with the question of the admissibility of evidence that no ticket was issued, and we need not do so in this case, as both parties have proceeded on the assumption that Mr. Sims’s remark about not having received a ticket was inadmissible.

Mr. Bearden’s argument is that, as inadmissible evidence favoring the defense was before the jury, he should have been allowed to introduce rebuttal testimony from the investigating officer, which he concedes would have been otherwise inadmissible.

In German-American Ins. Co. v. Brown, 75 Ark. 251, 87 S.W. 135 (1905), we held that the introduction of incompetent evidence, over objection, allowed the opposing party to introduce equally incompetent rebuttal evidence. We wrote, “Where one party introduces incompetent testimony, he cannot complain of the action of the court in allowing the other party to introduce the same character of evidence directed to the same point at issue. He waives all objection to error which he thus invites.” 75 Ark. at 257, 87 S.W. at 137. Cf. Henson v. State, 239 Ark. 727, 730, 393 S.W.2d 856, 859 (1960) (“[T]wo wrongs do not make a right”). Recently, in Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992), we held that a plaintiff should have been permitted to present otherwise inadmissible evidence of insurance coverage in response to a defendant’s incompetent and inadmissible statement implying that he was “alone” in his defense and could not replace that which would be taken from him.

In the Peters case we cited, with approval, the following language from E.W. Cleary, McCormick on Evidence, § 57, at 147-148 (3d ed. 1984):

If the evidence, though inadmissible, is relevant to the issues and hence probably damaging to the adversary’s case, or though irrelevant is prejudice-arousing to a material degree, and- if the adversary has seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence as of right. By objecting, he has done his best to save the court from mistake, but his remedy by assigning error to the ruling is not an adequate one. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence .... [Footnotes omitted.]

Peters v. Pierce, 308 Ark. at 64, 823 S.W.2d at 822 (emphasis supplied.)

Here, not only was there neither an objection nor a motion to strike at the time of the objectionable testimony, but the statement in question came during direct examination in Mr. Bearden’s case-in-chief. If, indeed, the statement concerning the failure to issue a traffic ticket was inadmissible, as the parties assume, the question of curative admissibility might have been averted by an objection sustained by the Trial Court. Certainly the later reference to it by counsel for Mr. Sims and Grobmyer, to which Mr. Bearden’s counsel did object, could have been prevented.

The objection presumably and properly would have been that Mr. Sims’s statement about the failure to issue a traffic ticket was, as Mr. Bearden’s counsel later argued to the Trial Court and argues in this appeal, not responsive to the question he had asked.

We might have been required to deal with curative admissibilty even if the Trial Court had sustained a timely objection and had stricken the evidence and admonished the jury to disregard it if it was so devastating to Mr. Bearden’s case that striking the testimony and admonishing the jury would not have cured the problem. That was one of the bases of our decision in the Peters case. We do not reach that question here, of course, as there was no timely objection or motion to strike, and Mr. Bearden did not accept the Trial Court’s offer to admonish or instruct the jury to disregard the officer’s testimony.

2. New trial

a. Miscarriage of justice

Motions for new trial are governed by Ark. R. Civ. P. 59, which provides in part as follows:

(а) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; . . . (б) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to law; ....

In his motion for a new trial, Mr. Bearden contended that the verdict in favor of Mr. Sims and Grobmyer constituted a “miscarriage of justice” in view of the failure to allow him to introduce the evidence discussed above. In support of that position on appeal, Mr. Bearden cites Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), a case in which we reviewed a decision granting a new trial. Our concern in the Young case was not with whether there had been a miscarriage of justice in the abstract. Rather, our concern was with whether the Trial Court had erred in holding that the verdict was contrary to the preponderance of the evidence. In support of the use of the phrase “miscarriage of justice” in the Young case, we cited Brant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987), an earlier decision in which we had used that same phrase.

The Brant decision was also one in which the Trial Court had granted a motion for a new trial on the basis that the jury verdict was clearly against the preponderance of the evidence. We affirmed on the basis that the Trial Court had not abused his discretion in granting the motion for new trial.

Mr. Bearden’s argument on appeal to the effect that there was a miscarriage of justice in this case refers only to the argument, dealt with above, that he should have been allowed to introduce the otherwise inadmissible rebuttal evidence. No authority is cited from which we can deduce an abuse of discretion in this case. Most of the argument in favor of a new trial has to do with the issue faced in the Young and Brant decisions, i.e., whether the jury verdict was clearly against the preponderance of the evidence.

b. Clear preponderance

Mr. Bearden recognizes that, when a trial court' has refused to grant a new trial in response to an argument that the verdict is clearly against the preponderance of the evidence, the test on appeal is whether there is any evidence to support the jury’s verdict.

When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, Ark. R. Civ. P. 59(a)(6), we affirm if the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible in accordance with the proof.

Patterson v. Odell, 322 Ark. 394, 401, 909 S.W.2d 648, 652 (1995). “It is within the province of the jury to believe or disbelieve the testimony of any witness.” Id. at 402, 909 S.W.2d at 652.

Given the fact that the only evidence as to what happened to cause the accident was Mr. Sims’s version of the facts, we cannot say that the verdict in favor of Mr. Sims and Grobmyer was clearly against the preponderance of the evidence.

Affirmed.

Brown, J., not participating.


author: Tom Glaze, Justice.

text:
    Sandra VANDIVER v. Ronald W. BANKS
    97-272
    962 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Clearly Law Firm, P.A., by: Robert M. Clearly, Jr., for appellant.

      Gruber Law Firm, by: Wayne A. Gruber, for appellee.

         Reporter’s note: See 332 Ark. 372, 962 S.W.2d 349 (1998).

   Tom Glaze, Justice.

This case arises from appellant Sandra S. Vandiver’s and appellee Ronald W. Banks’s divorce granted in California on May 27, 1982. Banks was a member of the U. S. Air Force and possessed a fully vested, nondisability military retirement pension. The California court approved the parties’ marital settlement agreement, which permitted that court to reserve jurisdiction over Banks’s Air Force retirement benefits; it subsequently incorporated the parties’ agreement into their divorce decree. Vandiver later moved to Missouri, and Banks to Lonoke County, Arkansas.

In 1990, Vandiver filed suit against Banks in Lonoke County Chancery Court, seeking to enforce her community property rights to pension benefits under the 1982 California divorce, but the chancellor, applying Arkansas law, dismissed Vandiver’s lawsuit. On appeal, the court of appeals, on April 8, 1992, issued an unpublished opinion, holding that the chancellor erred in failing to apply California law. The court of appeals held California law applied because the parties’ agreement was made in California and all significant events concerning the agreement had occurred in that state.

On remand, Vandiver amended her complaint to seek partition of the military pension. Banks filed another dismissal motion which the chancery court, again, granted. In dismissing, the chancery court found the following:

(1) A final adjudication on the issue of military benefits had been made and decided in the 1982 California divorce proceeding;

(2) the California court took judicial action regarding the benefits by striking through the language in its order which would have reserved jurisdiction on the subject;

(3) res judicata and collateral estoppel barred any further claim for pension benefits; and

(4) California law, Civil Code § 5124, a statute of limitations, barred any adjudicated claim for such benefits, if sought after January 1, 1986.

Vandiver appealed a second time, and on October 13, 1992, the court of appeals, in another unpublished opinion, reversed, disagreeing with all the chancellor’s findings. The court of appeals reached and decided the following issues:

(1) California law applies to the case, and the trial court erred in holding it lacked jurisdiction to entertain a common-law partition action. It held that California law permitted Vandiver to file a partition action to enforce her right to military retirement pension benefits.

(2) In applying California law, citing Berry v. Berry, 265 Cal. Rptr. 338 (Cal. App. 4 Dist. 1989), and Henn v. Henn, 605 P.2d 10 (Cal. 1980), Vandiver is not barred from a division of pension rights where the parties’ divorce decree failed to reflect an earlier adjudication of those rights. Specifically, the appellate court held res judicata and collateral estoppel did not bar Vandiver’s claim for benefits.

(3) The trial court erred in finding that the California court had made other provisions in the California decree in lieu of pension benefits since the California court struck through the decree provision which read, “The court reserves jurisdiction on the issue of the disposition of [Banks’s] retirement benefits from the United States Air Force.” The court of appeals held the California court’s deletion of this language meant only that the matters it dealt with were omitted and were not an adjudication of retirement benefits.

(4) The trial court erred in applying § 5124 of California’s Civil Code, which barred a spouse from filing suit for a division of retirement benefits after January 1, 1986. The appellate court held that § 5124 applied only to spouses whose final decree had previously adjudicated military benefits to be the separate property of the military retiree. Here, as noted above, the appellate court held that Banks’s benefits had not been adjudicated and that no statute of limitations barred Vandiver’s action.

After the court of appeals’ second reversal and remand of this case, Vandiver voluntarily nonsuited her claim, but timely refiled it on August 26, 1994, and alleged the same claims set out in her original complaint. Vandiver’s complaint stated that, as a tenant in common, she had a property interest in Banks’s retirement pension under California law and is entitled to partition of the pension. Banks answered, raising the following defenses:

(1) The trial court had no jurisdiction of Vandiver’s partition suit.

(2) Banks disagreed with the meaning that the court of appeals gave to the California court’s striking of language in the parties’ divorce decree, providing the California court reserved jurisdiction on the issue of Banks’s retirement benefits.

(3) Banks asserted laches and estoppel, arguing twelve years had passed before Vandiver filed her claim.

(4) Banks alleged that he was entitled to a setoff because he had paid monies and conveyed property to Vandiver in excess of his obligation under the California decree.

Banks further counterclaimed against Vandiver, setting out spousal payments for support, moving costs, and life insurance. These payments, he alleged, were made in return for Vandiver’s promise not to pursue a community property interest in Banks’s military benefits. He claims the total payments amount to $20,118.53. Banks’s present wife, Bette, intervened in the lawsuit, asserting a property interest in her husband’s retirement pay since she had been married to him for nearly thirteen years.

After a trial touching all the issues, the trial court dismissed Vandiver’s action a third time. On appeal, Vandiver asserts the trial court erred. Specifically, she maintains that, if the trial court had complied with the court of appeals’ earlier rulings as the law of the case, it would have been compelled to award Vandiver her community property share of Banks’s retirement benefits. We agree.

This court, in Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994), adhered to the doctrine of law of the case, quoting the doctrine from Mercantile First National Bank v. Lee, 31 Ark. App. 169, 173, 790 S.W.2d 916, 919 (1990), as follows: “On second appeal, as in this case, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented.” See also Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The doctrine of the law of the case, stated in other terms, prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994).

Here, as can be seen by reading the mandates of the court of appeals as set out herein, the parties’ case now before us is essentially the same as the ones previously heard by the chancellor and decided by the court of appeals. To summarize, the court of appeals directed the chancellor (1) to apply California law; (2) to read the stricken portion of the California divorce decree as merely having been omitted and not having adjudicated pension benefits, (3) to assert its jurisdiction over the subject matter and the parties themselves, and (4) not to bar Vandiver’s partition claim by virtue of limitations (§ 5124), res judicata, or collateral estoppel. Because these issues were heard earlier by the chancellor and decided twice by the court of appeals, Banks is now barred from having them reconsidered in this review.

We are cognizant ofBanks’s argument that the law of the case is inapplicable here, because (1) Vandiver nonsuited on remand at one stage of litigation, and (2) the court of appeals’ mandates were set out in unpublished opinions. However, he cites no legal authority to support his argument. If we accepted Banks’s nonsuit argument, any plaintiff losing an appeal could avoid an appellate court’s mandate in a case merely by voluntarily dismissing suit upon remand. Also, Banks’s suggestion that the court of appeals’ unpublished opinions should not be binding is contrary to the law in these circumstances, since Rule 5-2(d) of the Rules of the Supreme Court clearly provides such opinions may be cited or referred to where an issue such as res judicata, collateral estoppel, or law of the case is involved. Banks further submits that, because this court is superior to the court of appeals, it need not be bound by the law of the case doctrine. Although this court, on a petition for review, would not be bound by a court of appeals’ decision, that is not the situation here. In this case, we are reviewing the correctness of the trial court’s rulings on remand after the decisions rendered by the court of appeals. Thus, Banks’s argument concerning appellate superiority is inapposite of the matter at hand.

Vandiver further argues that it was error for the chancellor to admit parol evidence to determine whether the California court reserved jurisdiction to determine the right to the pension. Again, we agree. As Vandiver highlighted in her brief, whether jurisdiction was expressly reserved is irrelevant. One, the court of appeals had held in its second opinion that the chancellor had erred in determining he lacked jurisdiction to entertain a. common-law partition action. For the same reasons as expressed previously, the court of appeals decision as to jurisdiction was law of the case and the chancellor was obliged to follow its mandate. Two, Vandiver was not seeking to modify the California Divorce Decree as Banks alleged. Rather, Vandiver was simply asserting her partition action, which is clearly permissible under California law. Berry v. Berry, 265 Cal. Rptr. 338 (Cal. App. 4 Dist. 1989). Hence, Vandiver’s partition action had nothing to do with the law of contracts, to which the parol evidence rule is related, and the admittance of such evidence was error. See BMW of North America, Inc. v. New Motor Vehicle Board, 209 Cal. Rptr. 50 (Cal. App. 3 Dist. 1985) (providing, [u]nder California law, the parol evidence rule is a fundamental rule of contract law which operates to bar extrinsic evidence contradicting the terms of a written contract; it is not merely a rule of evidence but is substantive in scope).

Although Banks requested a dismissal, he pled alternatively the affirmative defense of setoff, and filed a counterclaim, seeking the amount of $20,118.53. This sum, according to Banks, consists of payments he made above and beyond those mandated by the divorce decree, including moving expenses, increases in spousal support, life insurance premiums, and an increase in life insurance premiums on his policy under which Vandiver is the sole beneficiary. In Boswell v. Gillette, 226 Ark. 935, 940, 295 S.W.2d 758 (1956), we applied the common-law, voluntary-payment rule and noted, “When one pays money on demand that is not legally enforceable, the payment is deemed voluntary.” TB of Blytheville, Inc. v. Little Rock Sign & Emblem, Inc., 328 Ark. 688, 946 S.W.2d 930 (1997). Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered. Id. Banks has made no such showing. We hold, therefore, that the payments in question as to both the defense of setoff and the counterclaim were voluntary, and, as such, are not recoverable.

Finally, although the court of appeals’ opinions made no specific references to Banks’s defenses involving laches and equitable estoppel, these are matters that Banks could have raised in the earlier two appeals but did not. Cf. Rule 8(c) of the Rules of Civil Procedure. Consequently, these claims, too, are barred by the law of the case.

For the reasons above, we reverse the trial court, and remand the case, directing the chancellor to partition Banks’s pension and to award Vandiver her community property share. Because California law has been held to apply in this case, Vandiver’s award should be computed by dividing the total number of months Banks was in the military while married to Vandiver by the total number of months Banks was in the military service; the quotient is then divided by two, and the result is the percentage of the pension that Vandiver is entitled to receive. Applying the figures submitted, the resulting percentage is 37.28%. Clearly, under California law, Vandiver is entided to a percentage of the gross pension payments Banks has received since the filing of her partition action in 1990. See Casas v. Thompson, 228 Cal. Rptr. 33 (Cal. 1986). Concerning Vandiver’s entitlement to benefits due her before the filing of her action, we remand with directions for the trial court to consider any facts relevant to the fairness of such payments as discussed by the California Supreme Court in Casas at pages 46 and 47.

Reversed and remanded.

       After the Court in McCarty v. McCarty, 453 U.S. 210 (1981), held that the states could not treat pensions as community property, Congress enacted the Federal Uniformed Services Former Spouses’ Protection Act which allowed states to treat military pensions as community property, and the Act was given retroactive effect. See 10 U.S.C. § 1408 et seq. California then enacted § 5124 which permitted spouses until January 1, 1986, an opportunity to modify their prior decrees when their claim for military benefits had been adjudicated and denied.

       The trial court never mentioned Bette Banks’s intervening claim in its order, but since she requested dismissal of Vandiver’s complaint, her request was satisfied when the trial court’s order granted Mr. Banks’s dismissal motion. In addition, we note that Bette Banks had an inchoate interest in any military benefits, since she is still married to Mr. Banks, and, too, any interest she might have would not involve and would be separate from the marital and community property interest belonging to Vandiver. See Mickle v. Mickle, 253 Ark. 663, 488 S.W.2d 45 (1972) (the court held the title to personal and real property remains vested in the husband until it is divested by a decree of the court designating the specific property to which wife is entitled). Lastly, the court’s order never mentioned Banks’s counterclaim, but that relief was made moot when the trial court dismissed Vandiver’s partition action.


author: Donald L. Corbin, Justice.

text:
    John L. WEBBER, Franklin L. Webber, George E. Webber, Martha L. Roach, and Gloria F. Keathley v. Virgie WEBBER
    97-602
    962 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Robert M. Abney, P.A., for appellants.

      Randall L. Gammill, for appellee.
   Donald L. Corbin, Justice.

This is an appeal by Appellants, John L. Webber, Franklin L. Webber, George E. Webber, Martha L. Roach, and Gloria F. Keathley, who assert that the Chancery Court of the Northern District of Prairie County erred in ordering a sale of land and an interest in crops in the award of dower rights to Appellee Virgie Webber. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(16) as this case involves construction of deeds and the award of dower. We affirm.

Mark Webber, the decedent, owned approximately 348 acres of land in Prairie County, Arkansas. On June 18, 1990, a deed was executed, delivered, and filed from Mark Webber, grantor, to Appellants as tenants in common and grantees to the real estate that Mark Webber owned. Subsequently, on July 6, 1990, a correction deed was filed from grantor to grantees correcting the description of the original deed and reserving to the grantor a life estate in the subject property. At the time of execution of the deeds, Mark Webber was married to Appellee, having been married on May 26, 1984. She did not join in the execution of the deeds. In April of 1996, pursuant to a power of attorney, a deed was executed from Mark Webber to Appellants for the purpose of terminating his life estate in the subject property. Mark Webber died on June 2, 1996.

On October 14, 1996, Appellee filed a complaint in the chancery court of Prairie County, against Appellants and Loy Kee, Jr., to have her dower, in the real property deeded from Mark Webber to his children, established and commuted to a present interest. Appellee brought her action under Ark. Code Ann. § 18-60-401 (1987), which provides in pertinent part:

[A] ny persons having any interest in, and desiring a division of, land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned curtesy, or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where the owners shall have been divorced, except where the property involved shall be a homestead and occupied by either of the divorced persons, shall file in the circuit or chancery court a written petition. This petition shall contain a description of the property, the names of those having an interest in it, and the amount of the interest shall be briefly stated in ordinary language, with a prayer for the division and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners. Thereupon all persons interested in the property who have not united in the petition shall be summoned to appear.

Under Ark. Code Ann. § 18-60-410 (1987), if any person summoned, as provided in 18-60-401, desires to contest the rights of the petitioners or the statements in the petition, he shall do so by a written answer, and the questions of law and fact thereupon arising shall be tried and determined by the court. Under Ark. Code Ann. § 18-60-411 (1987), if any of the parties duly notified by personal service or publication shall not appear and plead within the time allowed by the court for that purpose, the default shall be entered. Kee was a tenant of the property. The chancery court found that Kee was served with a summons and complaint, but having failed to file an answer, was in default.

As provided in Ark. Code Ann. § 18-60-412 (1987), the court declared the rights, titles, and interests of all the parties to the proceedings, petitioners as well as defendants. On February 26, 1997, the chancery court issued an order finding that Appellee was entided to a dower interest in the approximate 348 acres of property, which dower interest would be a one-third interest for life. The court ordered that the property should be sold and from the sale proceeds the dower interest should be commuted to a present value and paid to the Appellee. The court ordered further that Appellee was awarded a one-third share of the 1996 crop proceeds, as Mark Webber died prior to the crop being harvested.

Appellants raise two issues on appeal. First, they assert that the chancellor erred in ordering the sale of the property and not a division of rentals. They assert that Ark. Code Ann. § 28-39-306 (1987) provides for a sale only in probate courts and not in chancery courts and is therefore in conflict with Ark. Code Ann. § 28-39-305 (1987) where a surviving spouse can be awarded one-third of the net rental for life in lieu of dower. Second, Appellants contend that the chancellor also erred in awarding Appellee one-third interest in the 1996 crop proceeds. The crops were growing at the time of her husband’s death and, Appellants assert, the husband had no interest in these crops at that time.

We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997). In order to demonstrate that the chancellor’s ruling was erroneous, Appellants must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. When this court is called upon to construe deeds and other writings, we are concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed. Brewer & Taylor Co. v. Wall, 299 Ark. 18, 769 S.W.2d 753 (1989). In reviewing instruments, this court’s first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Davis v. Griffin, 298 Ark. 633, 770 S.W.2d 137 (1989).

The chancery court ordered that Appellee was entitled to a one-third interest in the land for her life as she did not join in the execution of the deeds. Under Ark. Code Ann. § 28-11-201 (a) (1987), no act, deed, or conveyance executed or performed by one spouse without the assent of the other spouse, evinced by acknowledgment in the manner required by law, shall pass the estate of dower or curtesy. In her petition, Appellee alleged the real property could not be divided in kind. At the hearing on the petition to allot dower, the chancery court heard testimony from Appellants John L. Webber, Martha L. Webber Roach, and Appellee Virgie Webber as to the description and possible uses of the approximate 348-acre tract.

The testimony provided information to the court as to whether the tract was divisible in kind. The land consisted of a rice farm, which requires irrigation. There is a submersible well in the northwest corner, one well by the house on the eastern boundary and another on the western boundary. The property had been in the family since 1907. As this was an ancestral estate, Appellants requested the court to consider an appraisal of the land to determine the value. In her petition, Appellee sought an order to sell the land so that the proceeds could be divided.

Appellants contend the chancery court erred in ordering a sale. When a probate court finds the land cannot be divided in kind to effectuate dower rights, it may order the property rented and the rental divided, or it may order the property sold and the proceeds divided. Sections 28-39-305, -306; In Re: Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994); Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961); Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). Appellee filed her petition in chancery court pursuant to section 18-60-401, which permits a person with an unassigned dower interest to petition for a division and sale if it appears that a partition would be prejudicial to the owners. Appellants requested an appraisal of the land at the hearing below. However, there is no authority that would allow the chancery court to receive evidence of the property’s value and then place a value on the property accordingly. Estate of Jones, 317 Ark. 606, 879 S.W.2d 433.

We cannot say that the chancery court was clearly erroneous. The court below made its decision based on section 18-60-401 after a hearing with testimony from both sides. After finding that the land was not divisible in kind, the court followed the only appropriate option advanced by counsel, a sale, as an appraisal could not be ordered. Appellants argue that a sale under section 28-39-306 applies only to probate courts, while section 28-39-305, which provides for a division of rentals, does not specify a jurisdiction and should have been utilized by the chancery court. However, this argument was not made below, and the chancery court order specifically states that the sale was to be brought pursuant to section 18-60-401 and does not include any mention of section 28-39-306.

In any event, on appeal, Appellants contend that the chancery court should have ordered a division of rentals under section 28-39-305, which provides:

In cases where lands or tenements will not permit division, the court, being satisfied of that fact or on the report of the commissioners to that effect, shall order that the tenements or lands be rented out and that one-third (1/3) part of the proceeds be paid to the surviving spouse in lieu of dower or curtesy in the lands or tenements.

Appellants did not make this argument below. Where the abstract does not reflect that the argument was made in the trial court, we will not reach the merits of the argument on appeal. See Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996). The abstract reflects in the hearing that Appellants asserted only that the land should be appraised. There is no further indication in the abstract that Appellants made the argument concerning a division of rentals. The abstract does not contain an answer by Appellants, nor does it demonstrate that the issue of division of rentals was addressed by the chancellor either during the hearing or in the order. We reject Appellants’ argument because it was not properly raised before the trial court, and this court has repeatedly stated that arguments raised for the first time on appeal will not be addressed. See, e.g., Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996).

Appellants also contend that the decedent did not have an interest in the crops when he died, therefore Appellee should not have been awarded any dower interest in the crops. The land in question produced a crop which was harvested after Mark Webber died on June 2, 1996. It is settled law that “land” is everything that lies below the surface or is attached thereto by the processes of nature or of art. Lewis v. Delinquent Lands, 182 Ark. 838, 33 S.W.2d 379 (1930). Crops become personalty when they are severed. Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). A widow’s right of dower, even in real property, remains only an inchoate right until the husband’s death. Mickle v. Mickle, 253 Ark. 663, 488 S.W.2d 45 (1972). The status of an estate is fixed upon death, and the property interest is in the property as it existed at that time. See Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963). We agree with the chancery court that Appellee’s dower interest vested upon the death of her husband and, as such, is a life estate. Thus, she is entitled to a one-third share of the net proceeds of the 1996 crops.

Affirmed.

Imber, J., not participating.


author: Robert L. Brown, Justice.

text:
    Otis STRICKLAND v. STATE of Arkansas
    CR 97-501
    962 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Katharine C. Day, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant, Otis Strickland, was arrested on October 13, 1994, and charged with four counts of delivery of a controlled substance. He was tried by a jury on October 3, 1996, found guilty, and sentenced to three terms of forty years, to be served concurrendy. Prior to trial, Strickland filed a timely motion to dismiss the charges against him for violation of the speedy-trial rule. A hearing was held on the motion, and the trial judge denied it. Strickland appeals the denial of his motion to this court. We affirm the trial court.

Strickland’s claim on appeal is that his right to a speedy trial under Rule 28.1 of the Arkansas Rules of Criminal Procedure has been violated. Rule 28 is clear that an accused must be brought to trial within 12 months from the date of the arrest. See Ark. R. Crim. P. 28.2. When a defendant presents a prima facie case of a speedy-trial violation, the burden shifts to the State to explain the delay. Duncan V. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994); Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990).

Strickland clearly presented a prima facie case for a speedy-trial violation in that he was arrested on October 13, 1994, and was tried 721 days later on October 3, 1996. In response to his motion to dismiss, the State successfully presented to the trial court seven periods of time to be excluded under Rule 28.3, totaling 452 days. Thus, according to the State, Strickland was tried on the 269th day, after the 452 days were excluded. The trial court agreed. On appeal, Strickland contests the exclusion of three of those seven time periods.

a. February 26, 1996, to May 16, 1996 (19 days).

The first excluded time period contested by Strickland is the period between February 26 and May 16, 1996. We decline to consider the argument regarding this period because Strickland did not challenge this excluded period at the hearing on his motion. Nor did he contest the order excluding this period. Hence, the trial court did not have an opportunity to rule on any objection to this excluded period.

In criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Moreover, it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Because the trial court never ruled on an objection to the exclusion of this time period, the argument is not properly before us on appeal.

b. February 1, 1996, to February 26, 1996 (25 days).

Strickland also contends that the period between February 1 and February 26, 1996, should not have been excluded because the order excluding this time was not date specific. Though eliminating the exclusion of these 25 days would still not cause a speedy-trial violation, we will consider the point. The trial court’s order provides that on the court’s own motion the time from February 1 until the “next trial setting” should be excluded. The trial court excluded this time period based on the fact that Strickland’s court appointed counsel could no longer represent Strickland because he had been diagnosed with a terminal brain tumor. In support of his objection to this excluded period, Strickland cites Rule 28.3(c), which requires all orders excluding time for a continuance granted at the request of the defendant or the prosecutor to be date specific.

In response, the State presents two arguments. First, the State contends that the time excluded should not be considered under Rule 28.3(c) because it was excluded on the trial court’s own motion and not by request for continuance by either party. Thus, the State argues that the exclusion should be considered only under Rule 28.3(h) which allows for the exclusion of “other periods of delay for good cause.” Surely, the fact that the court’s appointed defense attorney has been diagnosed with a terminal brain tumor constitutes good cause. In addition, Rule 28.3(h) does not require that an order be date specific.

Secondly, the State contends that the February 1, 1996 order was date specific. Although the order does refer to the “next trial setting,” under the reasons explaining the exclusion of time, the trial court wrote that an arraignment would be scheduled for “February 26, 1996, to determine present ability to retain counsel or necessity of a court appointment.” We conclude that the order was sufficiently clear to establish that, at a minimum, the period of time from February 1, 1996, to February 26, 1996, would be excluded.

c. May 16, 1996, to August 29, 1996 (105 days).

Finally, Strickland contests the exclusion of the time period between May 16, 1996, and August 29, 1996. According to an order dated May 6, 1996, this time period was excluded because of the unavailability of a key witness for the State. Strickland, however, claims that the State did not act with due diligence in obtaining the testimony or presence of the witness.

Rule 28.3(d)(1) allows for time to be excluded upon a motion by the prosecutor when “evidence,” material to the State’s case, is unavailable. This rule also requires that the State exercise due diligence in obtaining the material evidence and that there be reasonable grounds to believe that the evidence will be available at a later date. See also Meine v. State, supra. We have held that a witness’s testimony is evidence for purposes of this rule. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997); see also Meine v. State, supra. We have also stated that two factors we will look to in determining whether due diligence was exercised in obtaining an unavailable witness are the issuance of a subpoena for that witness and the lack of any effort to depose that witness. Meine v. State, supra.

In the instant case, the motion for a continuance was made because State Police Investigator Dennis Roberts would not be available for trial on that date. According to his testimony at the speedy-trial hearing, Investigator Roberts notified the prosecutor on March 29, 1996, that he would be unavailable to testify from May 10, 1996, through May 18, 1996, due to his having been chosen to represent the State of Arkansas at national police memorial week in Washington, D.C. and a planned meeting with President Clinton. According to the State, on or about April 3, 1996, Investigator Roberts was served with a subpoena to appear and testify at trial set for May 16, 1996. Investigator Roberts confirmed that he did receive the subpoena.

Strickland argues that due diligence was not exercised in this case because the State did not make any effort to depose this witness for use at trial. The State responds that when the prosecutor became aware that Investigator Roberts planned not to attend the trial, the prosecutor issued a subpoena and requested a continuance. The State further maintains that it did not depose the witness because there was no guarantee that deposition testimony would be admissible in this situation.

Strickland relies heavily in his due diligence argument on Meine v. State, but we view the Meine case as being distinguishable from the case at bar. For the first trial setting in Meine, the witness at issue was never served with a subpoena. Here, Investigator Roberts was subpoenaed and never released from that subpoena. Then, in Meine the State unilaterally released the witness before the second trial setting on the basis of a scheduling conflict. We noted that the State might have availed itself of a deposition as an alternative to five testimony. Also, in Meine when the matter finally came to trial, the pertinent witness was not called to testify, casting doubt on his materiality. In the instant case, Investigator Roberts was the State’s first witness.

We agree that whether a deposition might have substituted for live testimony in this case was problematic for the State. Investigator Roberts was a material witness for the State, and the State undoubtedly wanted his credibility and demeanor on display before the jury. Moreover, this court has said that under some circumstances, an unavailable witness’s deposition testimony may be inadmissible. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In Bennett, we refused to permit deposition testimony where (1) the testimony was damaging to the defendant, (2) there was a need for the jury to be able to evaluate the credibility of the witness, and (3) there had not been a sufficient showing of unavailability. Though the Bennett decision does not disallow deposition testimony in all instances, it underscores the importance of having a jury assess the demeanor of a critical witness. Investigator Roberts was the State’s first witness at the eventual trial and an important cog in the State’s case. We can readily see how it would be important to both parties for the witness to give his testimony in person.

Strickland does contest any assumption that Investigator Roberts was a material witness and, because of that, contends he was not unavailable for Rule 28.3(d)(1) purposes. Suffice it to say that Investigator Roberts testified at the speedy-trial hearing that he was the case agent and the lead officer in this matter and, in addition, was the custodian of the records, the supervisor of the buy money, and the supervisor of the evidence. At trial, he was the State’s first witness and testified extensively about his role as an undercover agent on the cases involving Strickland. Through him, the State introduced six State exhibits. His testimony appears to us to have been clearly material.

We conclude that the State exercised due diligence in obtaining this material witness for trial. When it became apparent that the witness had a conflict and was unavailable, the trial court, in its discretion, had the authority to grant the continuance which it did. The fact that the case was not reset for trial sooner was a matter for the trial court to decide in fixing its docket.

We hold that these three time periods were properly excluded for speedy-trial purposes.

Affirmed.


author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

text:
    Richard WEISS, Director, Department of Finance and Administration, State of Arkansas v. Patricia G. JOHNSON
    97-565
    961 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Mark S. Ferguson, for appellant.

      Ray Bunch, for appellee.
   Annabelle Clinton Imber, Justice.

The appellee’s driver’s license was suspended by the Office of Driver Services of the Revenue Division of the Department of Finance & Administration pending the adjudication of her DWI charge. Pursuant to Act 802 of 1995, the appellee filed a “de novo petition for review” of the agency determination in circuit court. DF&A faffed to appear at the hearing, and the trial court entered a judgment in favor of appellee. DF&A moved to set aside the judgment, alleging that it was not served with appeEee’s petition in compHance with Ark. R. Civ. P. 4. The trial court denied the motion, finding that the hearing was a “special hearing” and that the rule was not apphcable. We reverse and dismiss, holding that the service provisions of Rule 4 are appEcable because the statutory procedure at issue is sEent on notice or service of process at the circuit court level.

On September 23, 1996, Patricia Johnson filed a petition in the Benton County Circuit Court for de novo review of a decision by the Office of Driver Services to suspend her driver’s license. Johnson styled the petition “PATRICIA G. JOHNSON vs. STATE OF ARKANSAS, OFFICE OF DRIVER SERVICES, REVENUE DIVISION OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION.” According to the facts as set forth in her petition, Johnson had been arrested on July 13, 1996, for DWI second offense and driving on a suspended driver’s license, resulting in the suspension of her license. On September 18, 1996, the Office of Driver Services held a hearing and sustained the suspension of Johnson’s license. The certificate of service attached to the petition indicated that Johnson “served a copy of the. . . Petition for Relief Concerning Suppression of Driver’s License. . . on Toni Boone, Driver Control Hearing Referee, 280 North CoEege Avenue, Suite 145, FayetteviEe, Arkansas 72701, by placing a copy thereof in the United States MaE, postage prepaid, addressed to her as above set forth.”

In a letter dated December 6, 1996, Johnson’s counsel sent a letter to Toni Boone, “Driver Control Hearing Referee,” at the same address set forth in the certificate of service. Johnson enclosed a copy of the petition, and informed Boone that the matter had been set for a hearing on January 10, 1997. At this hearing Johnson’s counsel explained that Boone, the referee who actuaEy suspended Johnson’s Ecense, was not present. Counsel stated “[Boone] was, is the one that actuaEy suspended the license and so on December the 6th I mailed a petition and notified her of this court date to make sure that all parties were informed about it.” Based on Boone’s absence, Johnson moved that the court reinstate her license “pending adjudication concerning the charges against her unless Toni Boone can produce some kind of a statement that she had no knowledge of this hearing.” The trial court examined the letter that Johnson had sent to Boone, and then stated the following:

Based upon the facts that you have provided here with notice of this hearing and based upon the fact that as I read this 5-65-104C [sic] the Office of Driver Services has the burden at this hearing to establish by preponderance of the evidence that a revocation was appropriate, by failing to appear and prosecute I don’t think I have got any choice but to find that the burden, that they have not met their burden and that the driver’s license should be reinstated pending a final adjudication.

On January 23, 1997, the trial court entered an order reinstating Johnson’s driver’s license, finding that the Office of Driver Services had failed to appear even though it had received notice through the December 6 letter and that it had “failed to meet its burden in this case.”

On February 18, 1997, the Department of Finance & Administration filed a motion to set aside the order on the grounds that Johnson failed to name the Director of DF&A as a defendant as required by Ark. R. Civ. P. “4(8A)” [sic], and that Johnson failed to deliver a copy of the summons and complaint to the Chief Executive Officer of DF&A as required by Ark. R. Civ. P. “4(7)” [sic]. DF&A further alleged that it did not receive notice of “this action” until it received the trial court’s order directing reinstatement of Johnson’s license, and that DF&A should be granted additional time to file an answer.

On March 20, 1997, following a hearing on DF&A’s motion, the trial court entered an order denying the motion and finding as follows:

1. That the de novo review conducted in circuit court pursuant to Ark. Code Ann. § 5-65-104 is a “special hearing.”
2. That the hearing officer, Toni Boone, was an authorized agent of the Office of Driver Services, and that “notification received of the hearing date by her under the facts of this case was service made to [DF&A].”
3. That Johnson properly served DF&A with notice of the de novo review and that DF&A failed to meet its burden of proof.

DF&A brings the present appeal from the order denying its motion to set aside.

DF&A’s sole argument on appeal is that the trial court abused its discretion in denying its motion to set aside because service of Johnson’s petition for review failed to comply with the provisions of Ark. R. Civ. P. 4. Specifically, DF&A contends that service of the petition and a summons should have been made on Richard Weiss, the chief executive officer of DF&A, under Ark. R. Civ. P. 4(d)(7), and that Weiss should have been named as a party to the action under Ark. R. Civ. P. 4(d)(8).

Act 802 of 1995, codified in part at Ark. Code Ann. § 5-65-104 (Repl. 1997), generally governs the temporary suspension of driver’s hcenses held by those persons arrested for driving while intoxicated. The statute directs the arresting officer to seize the arrestee’s license, subject to that individual’s right to a hearing before the Office of Driver Services of the Revenue Division of the Department of Finance & Administration. Ark. Code Ann. § 5-65-104(a)(1). This hearing “shall cover the issues of whether the officer had reasonable grounds to believe that the person had been operating a vehicle while intoxicated. . . and whether the person was placed under arrest.” Ark. Code Ann. § 5-65-104(a) (8) (A). “At the hearing, the burden of proof shall be on the state, and the decision shall be based on a preponderance of the evidence.” Id. Following an adverse determination, a person may file a “de novo petition for review” within thirty days in the circuit court in the county in which the offense took place. Ark. Code Ann. § 5-65-104(c). “The administrative hearings held pursuant to this section shall be exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq.” Id. On review to circuit court, the trial court is directed to hear the case de novo “to determine whether, based on a preponderance of the evidence, grounds exist for revocation, suspension, or denial of the person’s privilege to drive.” Id.

Noticeably absent from the statute is any indication whether the service provision of the Rules of Civil Procedure apply on review to circuit court, except to say that the APA does not apply at the administrative level. One notice or service provision that is found in the statute deals with the requirement that the arresting officer give the driver a receipt form serving as a notice of suspension or revocation and the right to a hearing. Ark. Code Ann. § 5-65-104(a)(2). Furthermore, “[a]ny notices from the Office of Driver Services required under this act which are not personally delivered shall be sent by certified mail. . . . Refusal of the addressee to accept delivery or attempted delivery of the notice . . . shall not constitute nonreceipt of notice.” Ark. Code Ann. § 5-65-104(a)(3). Once a person’s privilege to drive has been revoked, denied, or suspended under the statute, the person is entitled to a hearing with the Office of Driver Services upon “written request.” Ark. Code. Ann. § 5-65-104(a)(7).

Rule 1 of the Arkansas Rules of Civil Procedure, governing the scope of the Rules, provides in part that “[t]hese rules shall govern the procedure in the circuit, chancery, and probate courts in all suits or actions of a civil nature with the exceptions stated in Rule 81.” The Reporter’s Note to Rule 1 explains that “ Rule 81 makes exceptions to the applicability of these rules for special statutory proceedings.” The Rule 81(a) exception provides as follows:

(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

Ark. R. Civ. P. 81(a). The Reporter’s Note explains that the Rule 81(a) exception “would be those proceedings established by statute and the statute prescribes a different procedure. Except to the extent that these rules are modified by statute, however, they shall apply in all cases.” (Emphasis added.)

This court has historically recognized the distinction between two types of proceedings — civil actions and special proceedings — and considered whether or not the rules of civil procedure are applicable to certain types of special proceedings. Recently, in In re: Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997), we were presented with the issue of whether the voluntary nonsuit provisions of Ark. R. Civ. P. 41(a) were applicable to adoption proceedings. Adoption proceedings, created by statute and unknown at common law, were special proceedings “with appropriate and necessary special procedures enacted to protect significant public policy concerns such as the rights of adoptive parents and minor children to establish a stable and secure family relationship.” Id. Applying the voluntary nonsuit provisions of Rule 41 (a) to adoption proceedings would have effectively nullified the plain meaning of the Arkansas Revised Uniform Adoption Act’s one-year statute of limitations, and ignored the legislative intent behind the statute of limitations. Thus, the trial court in Martin-dale erred in granting a dismissal without prejudice and allowing the subsequent refiling of a petition to set aside an adoption outside of the statutory limitations period.

By way of comparison, Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995), presented the similar issue of whether Rule 41(a) allowed a nonsuit and the subsequent refiling of an appeal to circuit court outside of the seventy-five day time limit for such appeals under the Arkansas Teacher Fair Dismissal Act. In determining whether the Act was a “special proceeding” as that term is used in Rule 81 (a), the Sosebee court began by noting that “[t]he Rules. . . apply to a proceeding unless a statute, which creates a right, specifically provides for a different procedure.” Id. The Act was lacking in “special rules” concerning appeals to circuit court, while the court found “very thick and long breach of contract roots extending from the Teacher Fair Dismissal Act.” Id. Moreover, the nature of the circuit court’s review was not in substance that of an “appeal,” but instead encompassed the taking of evidence beyond the record of the administrative proceeding. For these reasons, the rights pursued under such an “appeal” were not created by the Act, as that term is used under the Rule 81(a) exception. Given the lack of procedures found in the Act once the matter reached the circuit court level, the Rules of Civil Procedure applied.

In the present case, like the adoption proceedings in Martindale, the right to judicial review of an administrative agency’s temporary suspension of a driver’s license is clearly a right created by statute as that term is used in Rule 81(a). Such a right to review has no origins in the common law. Driving itself is a privilege, not a right. See Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). Thus, in that sense, the right to review in circuit court under Ark. Code Ann. § 5-65-104(c) is a statutory “special proceeding.”

However, the analysis under Rule 81(a) does not end there. Not only must the statute create a “right, remedy or proceeding,” but it must also “provide [] a different procedure in which event the procedure so specified shall apply.” Ark. R. Civ. P. 81(a). See also Reporter’s Note to Rule 81 (“the [Rule 81(a)] exception would be those proceedings established by statute and the statute prescribes a different procedure”) (emphasis added); Martindale, supra, (“The Arkansas Revised Uniform Adoption Act’s one year statute of limitations provides a special procedure which cannot be annulled by Rule 41(a).”); Sosebee, supra, (“The Rules thus apply to a proceeding unless a statute, which creates a right, specifically provides for different procedure”) (emphasis added); Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), limited on other grounds, 316 Ark. 366, 872 S.W.2d 370 (1994) (“What this court intended when it adopted. . . Rule 82 [sic] in particular, was to except from the rules special proceedings created by statute which established different procedures from those applicable to civil actions”) (emphasis added). On this point, Ark. Code Ann. § 5-65-104(c) provides nothing “different” from the Rules in the way of notice or service of process at the circuit court level. By the statute’s express terms, the APA does not apply, thus extinguishing a potential source for guidance. Given the silence of Ark. Code Ann. § 5-65-104(c) on the subject of notice or service of process, and therefore the lack of a “different procedure” which conflicts with the Rules, we are left with no choice but to conclude that the Rules govern because the Rule 81(a) exception does not apply.

This conclusion is bolstered by the nature of the review sought in circuit court. While labeled a “petition for review,” the statute explains that the circuit court hears the case de novo. Thus, the circuit court is in no way bound by the administrative decision below and assumes the case as if it were originally filed in circuit court. Given the “original” character of the circuit court action due to the de novo review, it seems consistent to require the challenging party to give DF&A notice through traditional means of service of process. Compare In re: Proposed Annexation to Town of Beaver, 282 Ark. 516, 669 S.W.2d 467 (1984) (challenge of county court annexation proceeding in circuit court pursuant to statute was not an “appeal” but an “independent attack” requiring service of process under Rule 4) with Fulmer v. Board of Commissioners, 286 Ark. 419, 692 S.W.2d 246 (1985) (challenge of commissioner’s sale pursuant to statute did not require notice under Rule 4 where the statute at issue was a “special statutory action which contained] its own provisions for notice”).

Having held that Rule 4 governs service of Johnson’s petition for review, it is clear that DF&A was not properly served under the Rule. The abstract reflects that Johnson simply mailed Boone a copy of her petition via United States Mail at Boone’s business address. Johnson also mailed Boone a letter informing Boone that the matter was set for a hearing on January 10, 1997. However, the record fails to show that the director of DF&A was ever named as a party to the lawsuit, see Ark. R. Civ. P. 4(d)(8) and 25(d)(2), or that DF&A was properly served with the petition and a summons. See Ark. R. Civ. P. 4(d)(7). Because Johnson failed to properly serve DF&A under Rule 4, the trial court lacked jurisdiction to enter an order reinstating Johnson’s license. We hold that the trial court abused its discretion in denying DF&A’s motion to set aside, and reverse and dismiss without prejudice.

Reversed and dismissed without prejudice.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree completely with the majority opinion but write only to highlight an inconsistency in procedures for two categories of judicial review. We hold today that Ark. R. Civ. P. 4 governs judicial review of driver’s license suspensions under Ark. Code Ann. § 5-65-104(c) (Repl. 1997), which includes issuance of a summons and personal service of the petition on the agency. Under the Administrative Procedure Act, service of the petition for judicial review by mail is all that is required. See Ark. Code Ann. § 25-15-212(b)(2) (Repl. 1996).

Conflicting procedures for administrative appeals to circuit court on basic points like service of process can create a procedural pitfall for attorneys and their clients. I invite the attention of the General Assembly to this matter.


author: Ray Thornton, Justice.

text:
    David HOOKER v. FARM PLAN CORPORATION
    97-605
    962 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998
    [Petition for rehearing denied March 19, 1998.]

      Appellant, pro se.

      Walker & Black, by: Kendell R. Black, for appellee.
   Ray Thornton, Justice.

Appellant David Hooker appeals the trial court’s grant of summary judgment in favor of appellee Farm Plan Corporation (FPC). Acting pro se, he raises ten points for reversal. Because Hooker submitted a flagrantly deficient abstract, and his brief contained numerous other deficiencies, we affirm the trial court’s order under Ark. S. Ct. Rifle 4-2(a), (b).

After a careful reading of appellant’s brief, we are required to affirm the trial court’s ruling without reaching the merits of the case for the reasons listed. Our review of a case on appeal is limited to the record as abstracted in the briefs. See Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); Kearney v. Comm. on Professional Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995). The reason for this rule is simple; there are seven judges on this court, and it is impossible for each of them to examine the one record. Jewell v. Arkansas State Bd. of Dental Examiners, 324 Ark. 463, 464, 921 S.W.2d 950, 950 (1996). The appellant carries the burden of producing an abstract that is an impartial condensation, without comment or emphasis, of material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented on appeal. Ark. Sup. Ct. R. 4-2(a)(5); Porter, 329 Ark. at 44, 945 S.W.2d at 377. When the abstract is flagrantly deficient, we will affirm the judgment or decree of the trial court. Ark. Sup. Ct. R. 4~2 (b)(2).

Hooker appeals from a summary judgment order in a case involving a written agreement. He fails, however, to abstract the summary judgment order. He presents us with an abstract that is written in argumentative and narrative form. Because he has not sufficiently abstracted the pleadings, proceedings, facts, or orders, we have neither an understanding of the issues, nor can we determine whether these issues have been preserved for appeal. Moreover, Hooker failed to abstract or photocopy the agreement that he is contesting. Our rules provide that a document, such as a contract, may be photocopied and attached as an exhibit to the abstract. Ark. Sup. Ct. R. 4-2(a)(5). The document or the necessary portions of the document, however, must be abstracted. Id. Here, Hooker refers to the agreement as “Exhibit ‘A’ attached to complaint as set forth in Vol. 1 of Record.” As expressly stated in Rule 4-2(a) (5), a notation that merely refers to the location of the document in the record is not sufficient. See also, Finnegan v. Johnson, 326 Ark. 586, 932 S.W.2d 344 (1996) (affirming judgment without reaching the merits of argument when the contract at issue was contained in the record but was not abstracted).

Not only is the abstract deficient, but the statement of the case is deficient as well. The statement of the case must be concise and devoid of argument. Ark. Sup. Ct. R. 4-2 (a) (2). This statement, ordinarily two pages in length, shall not exceed five pages without the court’s permission. Id. The purpose of the statement of the case is to give the court an impartial and factual summary of the nature of the case and the action taken by the trial court. Id. Hooker’s five-page statement speaks about a credit agreement and outstanding debt, yet we are not given information about the agreement’s basis. Hooker also describes some of the trial court actions but these descriptions are so interspersed with argument and citations to authority that it is difficult to determine what the record shows and what is purely argument. There are numerous other departures from Rule 4-2 (a) as well. We do not relax these rules for pro se appellants; they are held to the same standard as attorneys. Jewell, 324 Ark. at 464, 921 S.W.2d at 951. For these reasons, we affirm the trial court’s order without reaching the merits of the case.