author: ROBERT L. Brown, Justice.

text:
    William MASHBURN v. MEEKER SHARKEY FINANCIAL GROUP, INC., d/b/a Kurmin Marine Insurance Agency, and Margaret Sadowski
    99-583
    5 S.W.3d 469
    Supreme Court of Arkansas
    Opinion delivered December 9, 1999

      Slagle & Gist, by: Richard L. Slagle, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Scott M. Strauss and Glenn W. Jones, for appellees.
   ROBERT L. Brown, Justice.

Appellant William Mashburn appeals cgrant e. summary judgment in favor of appellees Meeker Sharkey Financial Group, Inc. d/b/a Kurmin Marine Insurance Agency (Meeker Sharkey), and Margaret P. Sadowski, an employee of Meeker Sharkey. Mashburn contends that the trial court erred when it premised summary judgment in favor of the insurance agents, Meeker Sharkey and Sadowski, on a subrogation receipt which released the insurer, American Eagle Insurance Company. We affirm the trial court, but we do so for a different reason.

Mashburn alleged the following facts in his amended complaint. On October 31, 1996, Mashburn purchased a 35-foot Ericson yacht/sailboat in Miami, Florida. In order to obtain financing for the boat, he had previously purchased an insurance binder from the insurance agency, Meeker Sharkey. The binder showed American Eagle as the carrier. He had informed Margaret Sadowski, the agent he dealt with at Meeker Sharkey, that he planned to sail the boat from Miami to Destín, Florida by taking a route around the Florida Keys and through the Gulf of. Mexico. The boat would then be trucked to Lake Ouachita in Garland County. His application for insurance to American Eagle dated October 31, 1996, confirms the navigation route. However, the binder that was issued on October 28, 1996, only showed coverage in the waters along the eastern United States from Georgia to Maine.

On November 11, 1996, Mashburn set sail from Miami. On November 14, 1996, his boat was caught in a severe storm which disabled the steering gear, and the boat was blown off course and ended up beached on a coral head off the coast of Cuba. That same day, Mashburn called Meeker Sharkey from Cuba and left a message on its answering machine that his boat had been wrecked. On November 15, 1996, Mashburn talked direcdy to Sadowski by telephone and was informed by her that his boat was not covered in Florida waters or Cuban waters, but only in the waters along the east coast from Georgia to Maine. According to Mashburn, he attempted to convince Sadowski that this was incorrect and that a clerical error had been made. He was told, according to his complaint, that he was out of his coverage area and that no benefits would be forthcoming.

Mashburn next took steps to salvage the boat by having it removed from the coral head and placed in a marina in Cuba where repairs began. Over the course of the next month, Mashburn missed time from his job, incurred living expenses in Cuba, incurred traveling expenses from Cuba to the United States, and became financially obligated for the marine repairs. In his complaint, he claimed that these expenses were in excess of $67,000.

On February 11, 1997, the insurer of the boat, American Eagle, acknowledged that the boat was covered and settled with him for the policy value of the boat and personal property. The complaint stated that the settlement amount was $48,000.

Mashburn further claimed in his complaint that Meeker Sharkey and Sadowski owed a duty of care to him to issue the correct insurance binder and to act in good faith. He asserted that they were negligent in issuing the wrong binder and in telling him he had no coverage after the wreck at sea. He prayed for damages in excess of $67,000.

Meeker Sharkey and Sadowski had moved for summary judgment following Mashburn’s original complaint, and that motion was denied. After additional discovery, Meeker Sharkey and Sadowski moved for reconsideration and the motion for summary judgment was granted. The trial court ruled that Meeker Sharkey and Sadowski were entitled to summary judgment because Mash-burn had released American Eagle and a release of the insurer also released the agents of the insurer. This was a reference to the subrogation receipt signed by Mashburn on February 14, 1997, where he subrogated and released to American Eagle all rights against any entity with respect to his loss and damages.

On appeal, Mashburn claims that the trial court erred in granting summary judgment because factual issues remain to be resolved and because the release of an insurance company does not release its negligent agents unless that release so specifies.

Our standard of review for summary judgment has been often stated by this court:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994).

Renfro v. Adkins, 323 Ark. 288, 296, 914 S.W.2d 306, 310 (1996) (quoting Cash v. Lim, 322 Ark. 359, 361-362, 908 S.W.2d 655, 656-657 (1995)).

The trial court in its letter opinion and summary-judgment order relied on the fact that the subrogation receipt signed by Mashburn released his rights to American Eagle and that this receipt also had the effect of releasing Meeker Sharkey and Sadowski. We do not reach that issue because we agree with the appellees that they owed no duty to Mashburn regarding his claim for insurance benefits.

Mashburn first contends that Meeker Sharkey and Sadowski were negligent in preparing the insurance binder, which contained the wrong coverage area. Despite that error, we are at a loss to see how the incorrect binder by itself resulted in any damage to Mash-burn. The Yacht Application signed by Mashburn and sent to American Eagle three days later showed the correct region to be navigated. And Mashburn forthrighdy admits that American Eagle honored the insurance binder and paid the policy limits. In fact, according to his deposition, Mashburn knew his claim was covered by American Eagle as early as December 2, 1996. Damages are a necessary element for one to prevail in a cause of action for negligence. See Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996). Without proof that any damages were incurred solely due to Sadowski’s erroneous preparation of the insurance binder, Mash-burn’s claim based on this ground must fail.

The gravamen of Mashburn’s complaint is his claim that Sadowski negligendy advised him after the shipwreck that he had no coverage for his boat in Cuban waters and that he suffered damages as a direct result of this erroneous advice. In resolving this claim of negligence, we first must explore whether a duty to use ordinary care was owed by Meeker Sharkey and Sadowski to Mash-bum in settling his insurance claim. If no duty of care is owed, the negligence count is decided as a matter of law in favor of the defendant, and summary judgment is appropriate. See Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996).

We first take note of the fact that the trial court found that Sadowski acted as a “sales agent” for American Eagle. A sales or soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them on to the carrier or its general agent, to deliver the policies when issued, and to collect premiums. See Columbia Mut. Cas. Ins. Co. v. Ingraham, 320 Ark. 408, 896 S.W.2d 903 (1995); Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W.2d 707 (1958).

The affidavit of William Embry, Senior Liabilities Specialist for American Eagle, attests to the fact that Meeker Sharkey had no authority to settle or deny claims arising under American Eagle policies. Sadowski’s affidavit confirms that fact. These affidavits were not contested by Mashburn. Indeed, he acknowledged in his deposition that he knew that insurance agents sell policies and insurance companies handle and pay claims, although he also was resting on the mistaken belief that Sadowski was part of American Eagle. Substantiating this point is the fact that, according to his affidavit, Mashburn had his office in Arkansas contact American Eagle about his claim after he talked to Sadowski.

In short, Margaret Sadowski had no authority to settle Mash-burn’s claim. She was a sales agent who did not handle claims for American Eagle, and there is no contention by Mashburn that she was holding herself out as one who did. Moreover, American Eagle paid Mashburn’s claim under its policy in full, and Mashburn did not contest the manner in which the insurer processed and paid his claim

We affirm the trial court for the reason that no duty was owed by Meeker Sharkey or Sadowski to Mashburn regarding the payment of his claim.

Affirmed.

       According to the affidavit of William Embry, Senior Liabilities Specialist with American Eagle, the settlement was for policy limits in the amount of $49,000 less a $2,100 salvage retention deduction and $1,350 for personal items less a $250 deductible.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    STATE of Washington, et al. v. William Gordon THOMPSON
    99-612
    6 S.W.3d 82
    Supreme Court of Arkansas
    Opinion delivered December 9, 1999

      Barbara Morris Williams, for appellants.

      John D. Garnett, for appellee.
   ANNABELLE Clinton Imber, Justice.

This is a child-support tice. Support Enforcement Unit (CSEU) appeals the trial court’s decision staying enforcement of a foreign support order on the basis of lack of personal jurisdiction. Specifically, CSEU argues that the trial court erroneously allowed Mr. Thompson to present defenses which were barred when he failed to request a hearing to contest the validity of the order under Ark. Code Ann. § 9-17-606 (Repl. 1998). CSEU asserts that the trial court erred in considering these defenses and declaring the statute unconstitutional. We affirm in part and reverse in part for the reasons stated below. This case arises out of a child-support order entered by the Superior Court of Washington on August 9, 1990. The order was entered by reason of default due to Mr. William Gordon Thompson’s failure to respond or appear. The Washington court found that Mr. Thompson was the father of Stephen Uhler, who was age eight at the time, and ordered Mr. Thompson to pay child support in the amount of $474.00 per month. A judgment for arrears was granted in the amount of $30,353.00 for the period April 1985 through July 1990, and Mr. Thompson was ordered to pay an additional $253.00 per month toward that arrearage. Satisfaction of this judgment was pursued by the garnishment of Mr. Thompson’s wages and the withholding of his income-tax refunds during 1991 and 1992, with credit for an overpayment of $1,250 for the year of 1991. No other payments on the judgment were made after 1992.

On May 21, 1998, a child-support enforcement transmittal from the State of Washington was filed in the Pulaski County Chancery Court, seeking registration and enforcement of the Washington order under the provisions of the Uniform Interstate Family Support Act (UIFSA), Ark. Code Ann. § 9-17-101 et seq. (Repl. 1998). Mr. Thompson was personally served on June 10, 1998, with this transmittal and attachments, including a UIFSA packet, notice of registration, summons, and motion for contempt. Twenty days later, on June 30, 1998, Mr. Thompson filed a pro se response stating simply “I deny everything.” On July 16, 1998, Mr. Thompson’s attorney filed an amended answer denying all of the material allegations in the motion for contempt, and pleading the affirmative defenses of estoppel, laches, unclean hands, waiver, set-off, unjust enrichment, lack of in personam jurisdiction, and failure of consideration.

Mr. Thompson also filed a motion to dismiss on July 16, 1998, asserting that he was improperly served with notice of the Washington proceedings. In support of that assertion, he filed several affidavits. An affidavit of service by the process server for the State of Washington reflected that a twenty-six-year-old male with a broken leg who claimed to be Mr. Thompson’s ex-roommate (although the process server suggested that he fit Mr. Thompson’s description perfectly) was served on February 16, 1990, with the summons and petition for paternity at the address given for Mr. Thompson in the town of Puyallup, Washington. An affidavit by Mr. Thompson averred that he was living with his parents in Graham, Washington, from November 1989 until May 1990, that he was not domiciled at the Puyallup address on February 16, 1990, and that he was never served with the complaint or any pleadings in the Washington proceedings. Affidavits by Mr. Thompson’s mother and a family friend corroborated his residency with his parents in Graham, Washington, during the pertinent time period. Mr. Thompson additionally asserted in the motion to dismiss that his due process rights had been violated because he was entitled to a hearing to contest the validity of the registered order pursuant to Ark. Code Ann. §§ 9-17-606 and 607 (Repl. 1998).

On August 19, 1998, the chancery court issued an order and citation directing Mr. Thompson to appear for hearing on September 16, 1998. During that hearing, Mr. Thompson testified that at the time he was personally served on June 10, 1998, he was only given the summons for the Arkansas proceeding. He claimed that the child-support enforcement transmittal and attachments were mailed to him at a later time, and that he never received service of the notice of registration. Mr. Thompson also reiterated the information previously submitted by affidavit in support of his assertion that he had never been served with notice of the Washington proceedings against him. Although he claimed that his ex-roommate never forwarded the Washington court papers to him, Mr. Thompson admitted that he became aware of the child-support action in 1991 after his income taxes were withheld and his wages garnished. CSEU argued that Mr. Thompson was precluded from asserting any defenses since he did not request a hearing within twenty days of being served with process. The trial court then continued the hearing until October 21, 1998, in order to allow CSEU to present testimony rebutting Mr. Thompson’s assertions that he was improperly served with Arkansas process.

On September 30, 1998, Mr. Thompson filed a second amended answer restating all previous defenses and answers, and adding that Ark. Code Ann. § 9-17-606 violated his due process rights pursuant to the Fifth Amendment as applied through the Fourteenth Amendment of the United States Constitution and Art. 2, § 8, of the Arkansas Constitution on the basis that a party would be precluded from any hearing and raising any defenses if he only filed an answer. On October 1, 1998, Mr. Thompson sent notice to the Attorney General’s office of his challenge to the constitutionality of Ark. Code Ann. § 9-17-606.

On October 21, 1998, CSEU presented the testimony of Mr. Ken Williamson, a process server, who stated that he had reviewed the papers to be served prior to actual service on Mr. Thompson on June 10, 1998. Mr. Williamson confirmed that the notice of registration was in the packet. He further testified that he completed the return of service and listed each document served, including the notice of registration. Mr. Thompson then amended his prior testimony, stating that he did receive the child-support enforcement transmittal and the motion for contempt on June 10, 1998, but that he never received the notice of registration.

On January 25, 1999, the trial court entered its order, finding that Mr. Thompson did receive the notice of registration and that service was proper insofar as it related to the Arkansas proceeding. However, the court found that Mr. Thompson was not precluded from contesting the validity of the Washington order despite his failure to request a hearing as directed by the notice of registration and Ark. Code Ann. § 9-17-606. Specifically, the court held that the hearing request requirement in section 9-17-606 violated due process and was fundamentally unfair in that it denied a defendant the right to challenge the underlying judgment simply for failing to request a hearing in a responsive pleading or a separate pleading. The court noted that in this case Mr. Thompson filed a pro se response within the twenty-day time limit which stated “I deny everything,” and that CSEU served notice of a contempt hearing at the time Mr. Thompson was served with the UIFSA packet. Based on these circumstances, the court also concluded that it would be fundamentally unfair in this case to deny Mr. Thompson the right to contest the order, even in the absence of a due process violation. Finally, the court found that the State of Washington lacked personal jurisdiction over Mr. Thompson based on improper service of process in that state’s proceeding. The court thereby stayed enforcement of the Washington support order, and this appeal was taken.

CSEU argues on appeal that the trial court erred in declaring section 9-17-606 unconstitutional as a deprivation of due process, and consequently erred in considering Mr. Thompson’s jurisdictional defenses as he failed to request a hearing within the twenty-day period mandated by that statute. Conversely, Mr. Thompson argues that the statute’s effect is to deny a nonregistering party due process by denying that party an opportunity to be heard, in contravention of the due process guarantees of the United States Constitution, and that his responsive pleading was sufficient to indicate that he desired a hearing.

The challenged statute, Ark. Code Ann. § 9-17-606, states in pertinent part:

(a) A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within twenty (20) days after notice of the registration. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to § 9-16-607 (Contest of registration or enforcement).
(b) If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

Pursuant to Ark. Code Ann. § 9-17-605(a) (Repl. 1998), the registering tribunal shall notify the nonregistering party when a foreign support order is registered. The notice of the registration must inform the nonregistering party:

(1) that a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal in this state;
(2) that a hearing to contest the validity or enforcement of the registered order must be requested within twenty (20) days after notice.
(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted; and
(4) of the amount of any alleged arrearages.

Ark. Code Ann. § 9-17-605(b). Personal jurisdiction is specifically listed as a basis for contesting the validity of a foreign support order in Ark. Code Ann. § 9-17-607 (Repl. 1998), which states in pertinent part:

(a) A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one (1) or more of the following defenses:
(1) the issuing tribunal lacked personal jurisdiction over the contesting party;
* * *
(b) If a party presents evidence establishing a full or partial defense under subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the law of this state.
(c) If the contesting party does not establish a defense under subsection (a) to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.

Once a registered support order is confirmed, whether by operation of law or after notice and a hearing, further contest of the order is precluded. Ark. Code Ann. § 9-17-608 (Repl. 1998).

We agree with CSEU that the above-quoted statutory provisions prescribe the method for contesting the validity of a registered support order. Section 9-17-606 states clearly that a person “seeking to contest the validity” of an order “shall” request a hearing. Under our principles of statutory construction, “shall” is mandatory. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998); Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). Thus, under section 9-17-606, the only method for contesting the validity of a foreign support order is to request a hearing within twenty days after notice of registration. This requirement takes precedence over the Arkansas Rules of Civil Procedure because UIFSA creates a special registration proceeding for foreign support orders. Ark. R. Civ. P. 81(a) (1999).

Turning to the issue of due process, Amendment 14, section 1, of the United States Constitution reads in part as follows:

...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In considering any constitutional challenge to a statute, we begin with the axiom that every act carries a strong presumption of constitutionality. City of North Little Rock v. Pulaski County, 332 Ark. 578, 968 S.W2d 582 (1998). This presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality, and all doubts will be resolved in favor of the statute’s constitutionality if it is possible to do so. Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997). A statute will not be struck down unless it conflicts with the constitution clearly and unmistakably. City of North Little Rock v. Pulaski County, supra.

Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he is deprived of property by state action. Owings v. Economic & Med. Servs., 302 Ark. 475, 790 S.W.2d 438 (1990). In that regard, the concept of due process requires nether an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. See South Central Dist., Pentecostal Church v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980). Instead, what process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id.

The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319 (1976). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer great loss.” See Goldberg v. Kelly, 397 U.S. 254 (1970). It depends upon whether the interest in avoiding that loss outweighs the governmental interest in summary adjudication. Id. Thus, determining what process is due involves the consideration of three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Matthews v. Eldridge, supra, at pp. 334-335; McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).

With regard to the first factor, individuals certainly have a private property interest in funds that are being diverted for child support. However, under the second Matthews factor, the risk of erroneous deprivation of those funds is diminished by the fact that registration proceedings are secondary proceedings to enforce an already adjudicated right to support. Thus, there is a presumption that sufficient process has already been afforded in the preceding suit, and that the order is valid. In this particular case, we are dealing with a facially valid order. Under the second part of this factor, the probable value, if any, of additional procedural safeguards, in addition to affording a hearing upon request, is negligible. These proceedings are abbreviated specifically because there has already been a prior adjudication. To require that pleadings also be allowed for the assertion of any defenses would only draw out the process, and would not add any substantive protections. Furthermore, any defenses that might be asserted in a pleading may be asserted at the hearing, provided that the hearing is requested in a timely manner. Finally, we must consider the public interest in “striking the appropriate due process balance.” Matthews v. Eldridge, supra. The public interest here is to make sure that the primary obligation to support a child does not fall to the State, and that foreign support orders are quickly and efficiently enforced. The twenty-day limitation is crucial to ensuring that a child not go without support any longer than necessary. By eliminating the requirement for responsive pleadings, the process is abbreviated so that the matter is resolved quickly and efficiently for the benefit of the child.

Our own case law establishes the propriety of this conclusion. In Owings v. Economic & Med. Servs., supra, we upheld a similar statute restricting the opportunity for a hearing to a specific time frame. In that case, the appellant brought a due process challenge to the notice and hearing procedures used by the Economic and Medical Services Department. According to the challenged procedures, a notice of termination of AFDC (Aid to Families with Dependant Children) benefits was mailed to the appellant at least ten days before the effective date of termination, and the appellant was required to respond to that notice before the termination date in order to secure a hearing on the matter. Id. The appellant failed to respond within the allotted amount of time. Id. We held that due process was afforded when the appellant was provided with both notice that her benefits would be terminated within ten days and the opportunity, if she responded in a timely fashion, to have her benefits continued pending a hearing. Id. In doing so, we pointedly observed that “[t]he lack of due process allegedly suffered by the appellant is not the result of a defect in the appellee’s notice and hearing procedures; it is the result of the appellant’s dilatory response. A pre-termination hearing was, so to speak, there for the asking.” Id.

Likewise, a hearing and the opportunity to contest were “there for the asking” in this case. Mr. Thompson was provided with notice of the opportunity for a hearing to contest the registration and enforcement of the Washington order if he requested the hearing in a timely manner. We therefore hold that the notice and hearing procedures set out in Ark. Code Ann. § 9-17-605 through 9-17-607 do not contravene the due process guarantees of the United States Constitution. Accordingly, we conclude that the trial court erred, and we reverse its holding on the constitutionality of Ark. Code Ann. § 9-17-606.

Notwithstanding this conclusion, we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999); Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Marine Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132 (1996). In that regard, we are not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. Heagerty v. State, 335 Ark. 521, 983 S.W.2d 908 (1998); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993).

The record in this case reflects that the documents served upon Mr. Thompson on June 10, 1998, gave him inconsistent information about the appropriate course of action to take in responding to the proceedings against him. Specifically, Mr. Thompson was served with a summons, which stated that he must file a responsive pleading within twenty days or suffer a default judgment. However, the notice of registration served on him at the same time quoted the language of Ark. Code Ann: § 9-17-605, which states that a hearing to contest the validity of the registered order must be requested within twenty days after personal service of the notice. This notice, however, did not include the language of Ark. Code Ann. § 9-17-606(a), which specifically places the burden of requesting a hearing on the nonregistering party. Simultaneously, Mr. Thompson was served with the motion for contempt, which stated that CSEU had already requested a hearing in the case. These documents all bear the same case number, yet one states that a hearing must be requested, another states that an answer must be filed, and finally another advises the recipient that a hearing has already been requested. In light of this conflicting information, it would not have been unreasonable for Mr. Thompson to believe that all of the actions required by the summons and the notice of registration had been taken; that is, a hearing had been requested, albeit by CSEU, and a responsive pleading had been timely filed. Based upon these particular circumstances, we hold that Mr. Thompson should not be barred from presenting any defense allowed under Ark. Code Ann. § 9-17-607. Accordingly, we affirm the result reached by the trial court, but we do so for different reasons.

Affirmed in part; reversed in part.

       The record actually reflects that Mr. Thompson was served with a motion for contempt which requested that “the defendant be cited to appear at a hearing for contempt .

       It should be noted that the Arkansas Rules of Civil Procedure do apply to proceedings under the Uniform Enforcement of Foreign Judgments Act, Ark. Code Ann. §§ 16-66-601 — 608 (Supp. 1999), which provides an optional procedure for the enforcement of foreign judgments. When this procedure is used to enforce a foreign judgment, the judgment is subject “to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.” Ark. Code Ann. § 16-66-602.


author: RAY THORNTON, Justice.

text:
    Ellis Charles BUTLER v. STATE of Arkansas
    CR 97-1363
    5 S.W.3d 466
    Supreme Court of Arkansas
    Opinion delivered December 9, 1999

      Bowden Law Firm, by: David O. Bowden; and Mays, Byrd & Hicks, P.A., by: Rickey H. Hicks, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant Ellis Charles Butler stice. alleging numerous points of error in his multiple convictions for rape and violation of a minor in the first degree. We agree that there is merit in his contention that the trial court abused its discretion in declining his motions for a continuance, and we remand for a new trial on the seven counts for which appellant was convicted.

Butler, who does not contest the sufficiency of the evidence, is a minister who came to Shirley from Georgia to establish a branch of the Universal Church of God and a boarding school. The school recruited both local students and troubled youths from other areas who boarded with church families or at the school dorms. In February 1997, one of his students, A.W, called her mother in Nebraska to report that Butler had sexually abused her. An investigation led to similar charges by four other female students, F.B., B.J.M., K.H., and T.T., and on February 18, 1997, an information was filed accusing Butler of multiple counts of rape and violation of a minor in the first degree by a person in authority or a position of trust. The felony information was amended and new charges were added on March 27, April 10, and April 24, 1997.

The record reveals that of the several amended informations filed by the State, none included identification of the names of victims associated with each count charged. Furthermore, the dates of the occurrences were listed as broadly as “during the 1990 to 1991 school year” or “between January and December, 1996.” Butler first appeared with retained counsel Kent Tester, who filed standard discovery motions. At the pretrial hearing on April 23, 1997, Tester moved to withdraw. Attorneys Charles Suphan and J. Fred Hart acknowledged having received Tester’s file that morning and moved to become substitute counsel, stating to the court that there was “no way, coming in at this date, that we could adequately be prepared for trial” by the scheduled date, twenty days hence. Noting that supplemental discovery from the State was yet to be received, Suphan requested additional time to prepare for such a complex case if the court permitted the withdrawal and substitution of counsel. The trial court granted Tester’s motion to withdraw, but denied the request for a continuance. Although the trial judge did not require a stated reason for Tester’s desire to be relieved of representation, we are left with the impression that he and Butler were unable to agree on a fee. Later, a third attorney, Buddy Troxell, was permitted to join as co-counsel.

Butler’s attorneys brought another motion for a continuance on May 6, 1997, a week prior to trial, arguing that they had not been given sufficient time to prepare for the case. Although the court indicated that it did not think appellant had sought a substitution of counsel for the purposes of delay, the motion was still denied. The day before trial, appellant made yet another request for a continuance, on the grounds that one of his attorneys, Mr. Troxell, was the subject of a pair of felony warrants for hot check law violations issued by the prosecutor’s office. Appellant argued that under these circumstances, Troxell could not be charged with vigorous representation of his client where he was distracted by his own legal troubles and in a position to possibly seek to curry favor with the prosecutor to protect his own interests in obtaining leniency. This motion too was denied. As a second ground in support of a continuance, appellant argued to the court that he was unable to adequately prepare his defense because the State had not alleged the name of each victim connected with each count charged, and had failed to respond to the defense request for a bill of particulars. That motion was denied when the prosecutor agreed to respond before noon that day, the day before trial. However, this information was not provided by the agreed time. Following the court’s continued denial of appellant’s request for additional time to prepare, Butler asked to be allowed to serve as co-counsel and participate with his retained attorneys. This was permitted.

Trial was set to begin the next morning, but Troxell was the only one of the three defense attorneys to appear. Hart was apparently at a ceremony in Little Rock in honor of his parents’ wedding anniversary. Suphan’s whereabouts were unknown, but it was eventually determined that he was “unable to function” due to a nervous condition and he was ultimately hospitalized for the first week of the trial.

Troxell told the court that he was severely handicapped without the presence of Hart and Suphan, having come into the case in the previous two weeks with the understanding that they were primarily responsible for trial preparation. Butler personally requested a continuance to find new counsel. The court denied the request, but offered to allow Troxell to be relieved and appellant to represent himself. Butler strenuously objected to the suggestion that he proceed pro se. Troxell begged for at least a postponement of jury selection until one o’clock, when Hart was expected, but that was denied as well.

That afternoon, Hart joined the defense following jury selection and again moved for a continuance, because the State had not yet provided the defense with the names of each victim for each count charged. The court required the State to respond immediately, and, following the disclosure of the requested information in open court, again denied the continuance request. The jury having already been selected, examination of witnesses began approximately one half-hour later. Butler acted as his own lead counsel, questioning most of the witnesses. Appellant’s brief charges that this was necessary because Butler was the only member of the defense team with even a “nodding acquaintance with the facts” of the case. When the jury returned its verdict following almost two weeks of testimony, he was convicted of seven of the fourteen counts alleged: three counts of rape and four counts of violation of a minor in the first degree. He was sentenced to sixty years in prison.

In order to prevail upon his allegations that the trial court’s refusal to grant a continuance was reversible error, Butler must show that the trial court abused its discretion in denying the continuance, and that the denial of a continuance constituted prejudice to his defense. See Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). We note that a last-minute change in counsel may occasion, or require, a continuance in order to give the attorney time to prepare. A factor to be considered by the trial court in making the determination whether to grant a request to substitute counsel is whether the change in counsel will necessitate a continuance. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Once the trial court has determined that a change in counsel is to be permitted, the new counsel must be accorded sufficient time to prepare for trial. We have previously gone so far as to look beyond whether the appellant specifically requested a postponement of his trial, approving a trial court’s treating a request for substitution of counsel as a motion for a continuance, “since a change of attorneys so close to trial would have required the granting of one.” Id., (citing Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980)).

Here, as in Greene, we must conclude that, once the change in counsel was permitted, it was an abuse of discretion to deny new counsel adequate time to prepare. This is especially true where appellant and his counsel were not provided full discovery of the names of the victims related to the specific counts until the day of the trial. We conclude that prejudice to Butler’s defense resulted. We have previously held that when the State fails to furnish the defense with the name of a witness, this is a violation of our pretrial discovery rules. Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981). In such a situation, a continuance should be granted or other appropriate sanctions imposed; if not, a new trial is in order. Id. In the circumstances of this case, where the individual victims have not been connected to specific charges, we see the violation as even more egregious .than that in Nelson, and hold that the trial court abused its discretion in failing to take appropriate action to cure the prejudice created by the State’s failure to timely provide the requested information. The facts clearly establish that Butler was not provided this information until noon of the first day of the trial, and we conclude that the trial court abused its discretion in denying Butler’s repeated requests for a continuance.

We therefore reverse and remand this case for a new trial on the charges for which Butler has been convicted. His other claims of error alleged in this appeal appear to flow from and be the result of the prejudice created by the trial court’s granting the substitution of counsel and denial of Butler’s requests for a continuance. With the appointment of competent counsel to represent Butler, who has now been deemed indigent, and with adequate time to prepare his defense, we anticipate that these claims of error should not arise at a new trial, and we decline to further address them.

Reversed and remanded.


text:
    Ronnie D. FORD, Individually and as Personal Representative of the Estate of Ernie C. Ford, Deceased, and Terry G. Ford v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott M. Kelly
    99-587
    5 S.W.3d 460
    Supreme Court of Arkansas
    Opinion delivered December 9, 1999

      Blair Arnold; and William T. Bernard, for appellant.

      Barrett & Deacon, by: D.P. Marshall Jr. and James D. Bradbury, for appellee St. Paul Fire & Marine Insurance Company.

      Friday, Eldredge & Clark, by: William M. Griffin III and Joseph P. McKay, for appellee Internal Medicine Associates, P.A.

      Womack, Landis, Phelps, McNeill & McDaniel, by Paul D. McNeill and Jeffrey L. Singleton, for appellee Surgical Clinic of Northeast Arkansas, P.A.

      Lyons, Emerson & Cone, P.L.C., by: Jim Lyons, for appellee Dr. Scott Kelly.
   RAY THORNTON, Justice.

Appellants Ronnie D. Ford and Terry ice. bring this wrongful-death action individually and on behalf of their deceased father, Ernie C. Ford, against the four appellees: St. Paul Fire & Marine Insurance Company, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott Kelly. Appellants contended that the appellees’ delay in performing surgery on Mr. Ford’s ruptured aneurysm constituted a “lost chance” and should be recognized as an alternative theory of recovery for medical malpractice. The trial court granted summary judgment in favor of all four appellees because there was no expert testimony that Mr. Ford would have survived had medical intervention been rendered earlier, and therefore, the element of proximate cause was not established. Absent a showing of proximate cause, we do not decide the question of the applicability of the “lost chance” doctrine. We affirm the trial court’s ruling.

On January 3, 1996, at approximately 8:30 p.m., Mr. Ford suffered the onset of lower abdominal pain. At approximately 10:00 p.m., he arrived at the emergency room at St. Bernard’s Regional Medical Center. Upon admission to the hospital, Mr. Ford was examined by appellee, Dr. Scott M. Kelly. After talking with Mr. Ford and after initial x-ray testing, Dr. Kelly diagnosed several medical problems as material to the abdominal pain. These diagnoses included an abdominal aortic aneurysm, dehydration, renal insufficiency, and an active infection.

At approximately 2:30 a.m., the patient was transferred to the care of Dr. Robert Burns, the on-call physician for Mr. Ford’s primary-care physician and agent of appellee, Internal Medicine Associates of Jonesboro, P.A. Dr. Burns ordered Mr. Ford’s admission and proceeded to the emergency room to evaluate him. After noting that the patient was in less pain than reported on admission, Dr. Burns consulted with Dr. Russell Degges, an agent of appellee, Surgical Clinic of Arkansas P.A., who agreed with a plan of action, which included a further assessment of the abdominal aortic aneurysm by ultrasound.

At approximately 5 a.m., Dr. Burns ordered an ultrasound for Mr. Ford, who had been placed in the Women’s Diagnostic Center wing at the hospital where his blood pressure and pulse rate continued to be monitored. While awaiting the ultrasound, Mr. Ford’s leaking aneurysm burst, sending him into shock. He was rushed to the emergency room where surgery was performed to repair the ruptured aneurysm. Mr. Ford, who was seventy-three years old, survived the surgery but died later that day.

Summary judgment is appropriate when there is no genuine question of material fact to be litigated. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 660 (1997). Once the moving party established a prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet “proof with proof’ and demonstrate a genuine issue of material fact. Sanders v. Bailey Community Human Services Public Facilities Board, 330 Ark. 675, 956 S.W.2d 187 (1997). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). Any doubts and inferences must be resolved against the moving party. Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997).

The Arkansas Medical Malpractice Act is codified at Ark. Code Ann. § 16-114-201 through 209 (1987). In Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991), we stated:

Section 16-114-206(a) specifies that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiff’s injuries.

Id. The statute implements the traditional tort standard of requiring proof that “but for” the tortfeasor’s negligence, the plaintiff’s injury or death would not have occurred.

We have held that the proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). It is simply not enough for an expert to opine that there was negligence which was the proximate cause of the alleged damages. Aetna Casualty & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W.2d 181 (1968). The opinion must be stated within a reasonable degree of medical certainty or probability. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992).

When summary-judgment motions are at issue, we must view the evidence in the light most favorable to the party opposing the motion, but there is nothing before us to suggest that any genuine issue of material fact was left unanswered. Two surgeons, Dr. Degges and his colleague, Dr. Ken Jones, supplied affidavits with the following information:

1. Repairing an abdominal aortic aneurysm is risky at best;
2. Mr. Ford’s age, active infection, renal insufficiency, and hypertension make his risks even higher than normal.

Both experts further testified by affidavit that Mr. Ford probably would not have survived the surgery had it been performed earlier.

The testimony from appellants’ expert witness, Dr. Charles Van Way, may be summarized as follows:

1. He could not say with any degree of medical certainty that, if operated on when he arrived at the hospital, Mr. Ford would have survived;
2. Mr. Ford had higher risks than usual because of his age, renal impairment, and other medical problems;
3. The overall success rate is 50/50 for surgery on patients whose aneurysm has ruptured, and the chances of survival dechne the longer the aneurysm bleeds;
4. He did not think that anyone could determine the risks of Mr. Ford, or whether he would have survived if operated on sooner.

Dr. Van Way concluded that he could not state with any reasonable degree of medical certainty or probability that Mr. Ford would have survived an earlier surgery.

Appellants did not offer any additional affidavits or evidence in opposition to the summary judgment. Under Arkansas case law concerning the opposing party’s burden in summary-judgment proceedings, appellants did not meet the “proof with proof’ as to a genuine issue of material fact left unanswered. Rather, they relied solely on the testimony of Dr. Charles Van Way, who could not say with a reasonable degree of medical certainty that, but for the delay of the surgery, Mr. Ford would have survived. Although Mr. Ford did not undergo surgery for a ruptured aneurysm for approximately eight hours after his admittance to the hospital, no evidence was provided that Mr. Ford’s eight-hour delay was unusual, or that appellees failed to meet the appropriate standard of care.

Dr. Van Way further testified that Mr. Ford’s condition was much worse than that of an average patient. Dr. Van Way testified that Mr. Ford had hypertension, a history of atherosclerosis, prior carotid artery surgery, the possible presence of a urinary tract infection, a prior history of smoking, a possible chronic obstructive pulmonary disease, and renal impairment. According to Dr. Van Way, the renal impairment alone would have doubled the risk of surgery. Under these circumstances, there was no proof that a delay in performing surgery was the proximate cause of Mr. Ford’s death.

Given appellants’ failure to meet “proof with proof,” coupled with three expert witnesses who did not establish proximate cause, the trial court correctly granted summary judgment in favor of appellees. Accordingly, the trial court’s order awarding summary judgment is affirmed.

Affirmed.


author: TOM Glaze, Juscase because

text:
    Joseph DEAN, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs v. Honorable Randall L. WILLIAMS, Gene Schieffler, and Arnell Willis, Individually and as Chairman and Vice-Chairman of the Helena-West Helena-Phillips County Port Authority, and Turk Corder, Individually, and the Helena-West Helena-Phillips County Port Authority
    99-1353 and 99-1364
    6 S.W.3d 89
    Supreme Court of Arkansas
    Opinion delivered December 10, 1999

      Wilson & Valley, by: J.L. Wilson, J.F. Valley, André K. Valley, Don R. Etherly, and E. Dion Wilson; and Simes Law Firm, by: Alvin L. Simes, for petitioners.

      Mark Pryor, Att’y Gen., by: Brian G. Brooks, Ass’t Att’y Gen., for respondent Honorable Randall L. Williams, Circuit Court of Phillips County.

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for separate respondents.
   TOM Glaze, Juscase because

Initially we had jurisdiction of this case because petitioners requested we issue a writ of prohibition to prevent the circuit court from exercising jurisdiction to hold a show-cause hearing as to whether petitioners should be found in contempt. See Sup. Ct. R. 1-2 (a) (3). Óur clerk accepted this petition and assigned it a case number of 99-1353. Before that petition and accompanying motion for stay could be addressed, the trial court held its hearing and the petition became moot. Because the petitioners filed a timely notice of appeal from the trial court’s contempt order, we assumed jurisdiction to decide that final order. That appeal was assigned number 99-1364. See Ark. R. App. P. 2(b); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). We also granted the stay and expedited the appeal. We have consolidated the petition for writ of prohibition and the appeal for purposes of decision making.

The original petitioners, now appellants, Joseph Dean, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs, and the six other Phillips County Quorum Court members were sued in their official capacity by a taxpayer and two members of the Helena-West Helena Port Authority to require the eleven-member quorum court to call an election, so the electors of Phillips County could vote for or against a county sales tax. After the circuit court issued a mandate ordering the quorum court to set an election date, five of the members (petitioners/appellants herein) refused to comply. The trial court then gave the petitioners/appellants time to obey its order or be incarcerated. When the petitioners/appellants failed to comply with the court’s directive, they were put in jail. However, petitioners previously filed their petition for a writ of prohibition here, asking us to stay the lower court’s contempt order and to hold that the circuit court acted outside its jurisdiction. They further asserted that the trial court’s orders was unconstitutional.

As has already been mentioned, besides their request for us to issue a writ of prohibition, petitioners subsequently filed a notice of appeal, and generally argue they pursued their request for a writ because they believed an appeal was an inadequate remedy. In sum, petitioners submitted that such inadequacy justified their request for an extraordinary writ. Because the circuit court’s contempt order was pending below and on appeal, we granted the petitioners’ motion to stay, and we expedited matters so we could consider at least those issues touching on the contempt order. We attempted to define those issues to be (1) whether the petitioners had a duty to call an election on the proposed sales tax, (2) whether they could be held in contempt for refusing to call an election, and (3) whether the circuit court had jurisdiction to enter the orders it issued. Before turning to those issues, we will set out a few additional details as to when and how this litigation got to this stage.

This case arises out of community and political discord attributed to the operation of the Helena-West Helena-Philfips County Port Authority and a project known as Slack Water Harbor. About ten years ago, the voters of Phillips County approved a one percent sales tax which aided in the industrial development of this area. That tax expires on or shortly after January 1, 2000.

In an apparent anticipation that the Phillips County voters would need to approve a new one percent sales tax to continue the port authority project and other important matters in January 2000, State Representative Arnell Willis sponsored a bill in the General Assembly which authorized the calling of an election to be held on a county sales tax upon the filing of initiative petitions by the legal voters of the county. That bill was passed, then approved on April 12, 1999, and subsequently designated Act 1357 of 1999. On August 23, 1999, Representative Willis and Eugene Schieffler, as members of the port authority, filed initiative petitions with the county clerk as required under Act 1357. Under the Act’s terms, the Phillips County Quorum Court is required to submit the question of the levying of the sales tax to the electors of the county, and in doing so, the quorum court must set the election to be held within 120 days from the fifing of the petitions. Using the August 23, 1999 date, the election could be held no later than December 21, 1999.

On September 14, 1999, a proposed ordinance — which would have referred the sales tax measure to the Phillips County voters at a special election to be held on October 26, 1999 — was presented to the Phillips County Quorum Court, but the quorum court rejected the proposal by a vote of five in favor and six against. The ordinance was again considered at an October 12, 1999 meeting, and the same six-to-five vote rejected the calling and setting of an election by voting to table the ordinance indefinitely. The six members voting against the ordinance and in tabling it were Trudie Miller and the same five petitioners described above as the members who eventually were found in contempt for continuing their decision not to call an election.

On October 14, 1999, Willis, Schieffler, and Turk Corder, a Phillips County taxpayer, elector, and former quorum court member, filed a petition for a writ of mandamus against all the Phillips County Quorum Court members, seeking an order from the circuit court compelling the quorum court members, in their official capacity, to enact the ordinance previously submitted and rejected by them and to order them to provide for an election to be held prior to December 1, 1999. After holding a hearing on the matter on November 12, 1999, the circuit court, among other things, granted the requested mandamus relief, and ordered the quorum court to hold a hearing by November 15, 1999, and enact the proposed ordinance. When the Phillips County Quorum Court failed to have a sufficient number of its members meet to vote on the ordinance, the circuit court set a hearing to be held on November 18, 1999, so the members could show cause why they should not be held in contempt for their refusal to comply with the circuit court’s November 12 order.

At the November 18 show-cause hearing, the five members identified as Dean, Simes, Davis, Myton, and Jacobs appeared, but after some controversy over whether they were represented by counsel and entitled to a continuance, they chose to invoke their Fifth Amendment rights, thereby refusing to offer any testimony justifying their continuing refusal to comply with the circuit court’s November 12 mandate. Accordingly, the trial court ordered that, if the five members did not enact the proposed ordinance beforel:00 p.m., November 19, 1999, they would be incarcerated until they complied with the court’s November 12 order. The five members went to jail, but prior to or at about the same time the members went to jail, they filed their petition for writ of prohibition, and a motion for stay with our court. They had previously filed a notice of appeal on November 12 from the lower court’s November 12 order, and later, a notice of appeal on November 18 from the trial court’s November 18 contempt order. By per curiam, we granted a stay on November 22, 1999, directed the transcript of the proceedings below be filed with us, and set a briefing schedule. From a reading of the parties’ pleadings and partial record, we identified three legal issues that we believed we could consider and decide. An oral argument was heard on November 30, 1999 — the day after the parties filed their respective, simultaneous briefs. The parties and this court at oral argument identified issues in addition to those we asked to be briefed, but upon review of the parties’ record and a study of their briefs and arguments, we find ourselves unable to fully decide all three issues contained in our November 22, 1999, per curiam.

The first issue is one we can address since the parties raised and developed the issue before or at the time of the November 12 hearing. That issue, restated, is whether petitioners had a duty to call an election under the provisions of Act 1357. In arguing this question, however, petitioners not only deny having such a duty, but also contend the trial court had no jurisdiction to issue a writ of mandamus against them because the Phillips County Quorum Court is a legislative body. Petitioners urge that mandamus lies only against a public official who has faded to perform a ministerial duty and such a remedy cannot prevail against a legislative body. Citing Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), they further claim that to permit a court to issue mandamus against a legislative entity like a quorum court would violate the separation of powers prescribed by Ark. Const, art. 4, § 1.

The Wells decision relied on by petitioners is one where a taxpayer sought a writ of mandamus against General Assembly officials ordering them to adjourn or compelling them to certify facts of their disagreement over their adjournment date to the Governor, so he could, under his constitutional authority, declare an adjournment. The Wells court denied the taxpayers’ writ request, stating that, under the common law, the writ of mandamus did not run to the legislative branch of government. Wells, 267 Ark. at 462, 592 S.W.2d at 104. The Wells court further determined that there was no statute that authorized the courts to issue the writ to the legislature and that the writ could not be issued to the legislature, even when the duty sought to be compelled is clear and unmistakable.

We certainly have no disagreement with the foregoing statements of the law. However, our difference with the petitioners on this matter is that the case now before us involves the reservoir of legislative power the people of Arkansas provided themselves when they passed Amendment 7 to the Arkansas Constitution, commonly known as the Initiative and Referendum or I & R Amendment. The Amendment in this respect provides as follows:

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill. (Emphasis added.)

In the instant case, it is not the Phillips County Quorum Court and its legislative power that respondents/appellees Schieffler, Willis, and Corder have asked the circuit court to control or force into some action. Rather, they merely are seeking to have the quorum court submit the county sales tax issue to the voters because the electors filed the required number of initiative petitions and signatures provided under the provisions of Act 1357 and Amendment 7.

Act 1357’s provisions are illustrative of the point we make. For example, the Act provides two avenues by which a countywide sales and use tax may be adopted by a vote of the people of Phillips County: (1) The quorum court may on its own volition call an election for such purpose or (2) electors may do so by initiative petition, like the situation now before us. Under the first method, the quorum court must exercise its legislative discretion when deciding if it wishes to call an election to refer a sales-tax question to the vote of the people in Phillips County. On the other hand, the second legal avenue to allow Phillips County voters to vote for or against a sales tax is solely within the power of the electors who correctly comply with the Act 1357 and Amendment 7 initiative-petition requirements. In these circumstances, we are simply not confronted with a separation-of-power question like the one posed in Wells.

The case before us is not unlike several cases this court has previously decided. While these earlier cases involved referendum petitions and the legislative functions of a city council, we find them controlling here. In the City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978), the issue centered on whether an ordinance increasing rates for electricity sold by the City of North Little Rock was a legislative measure that electors could refer to the city voters pursuant to Amendment 7, or if the ordinance was merely administrative in nature, making it an improper subject matter for a referendum. This court held the rate ordinance was a legislative measure which was subject to referendum, and once the electors of the city complied with the filing of the sufficient number of signatures and initiative petitions required by Amendment 7, the only function remaining to be performed was the city council’s ministerial responsibility and duty to call the election. The Gorman court concluded, stating the well-established rule that a failure to perform a ministerial duty is enforceable by a writ of mandamus. See also Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987); Lewis v. Conley, 258 Ark. 715, 529 S.W.2d 132 (1975).

For the foregoing reasons, we conclude that the duty imposed on the Phillips County Quorum Court in these circumstances was purely a ministerial one enforceable by mandamus. However, before leaving the first issue, we note petitioners’ claim that, under these facts, mandamus is a remedy that should be sought in chancery court. In support of their argument, they cite Ark. Code Ann. § 14-14-916(a) (Repl. 1998), and argue that jurisdiction is vested in the chancery court to hear and determine petitions for writs of mandamus, injunctions, and all other actions affecting the submission of any proposed county initiative or referendum petitions. Amendment 7 also provides that the sufficiency of all local initiative and referendum petitions must be decided first by the county or city clerk, as the case may be, subject to review by the chancery court.

The answer to which court, circuit or chancery, has jurisdiction of this matter is found in the case of Catlett v. Republican Party of Ark., 242 Ark. 283, 413 S.W.2d 651 (1967). There, this court explained the chancery court’s limited power in cases involving elections as follows:

Wherever the established distinction between equitable and common law jurisdiction is observed, as it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election can be held. These matters involve in themselves no property right but pertain solely to the political administration of government.

Catlett was cited more recently in Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992), where Amendment 7 was in issue. There, this court held chancery court had jurisdiction only to review the action of the county or city clerk in determining the sufficiency of the petitions, and further concluded that proper jurisdiction of a suit to question the validity of a proposed measure lies in circuit court. Moorman, 310 Ark. at 528, 837 S.W.2d 888. Thus, our case law is decidedly clear that chancery court does not have jurisdiction over the type of issues raised in the litigation now before us.

While we are able above to decide that the circuit court here has jurisdiction in this case and it has authority to mandate the Phillips County Quorum Court to perform a ministerial duty such as is required under Act 1357 and Amendment 7, we are unable to decide without additional argument whether the petitioners, as quorum court members, can be held in contempt for refusing to enact the ordinance needed for calling the election provided under the Act.

This case became particularly difficult after one of the eleven quorum court members, Eddie Schieffler, at the November 12 hearing, filed an objection to attorney J.L. Wilson representing the quorum court. Eddie Schieffler was one of the five members who had voted in favor of calling the sales tax election. Immediately after the November 12 hearing started, but before testimony was taken, Eddie Schieffler suggested Wilson had not been hired by the quorum court. The record also reveals Alvin L. Simes had a contract which authorized him to represent the entire quorum court. Although Simes and one of the petitioners, Mr. Dean, indicated the quorum court had approved Simes’ associating Wilson, the record shows that approval was done by a five-to-two vote and that six votes were needed to amend Simes’ contract. Moreover, the county judge apparently did not approve any modification of Simes’ contract.

After considerable exchange between the judge, Wilson, and Simes, the judge disqualified Wilson as an attorney, but Simes remained attorney of record even though he apparently did not continue his representation after Mr. Wilson was disqualified. Before departing, Mr. Wilson noted his disagreement with the judge’s ruling and stated that, under the rules, if the “court disqualifies an attorney, he’s entitled to an immediate appeal and a stay of the proceedings until that is determined.” The judge responded, “Well, take any action you think you need to take ... I don’t have any problem with that.” Wilson said that he wanted the record to show that he had been disqualified and that, by continuing with the hearing, his client’s rights would be prejudiced.

The November 12 hearing proceeded without Wilson or Simes being present, even though Mr. Simes had not been disqualified and had not asked to withdraw from the proceeding. Nor had opposing counsel objected to Mr. Simes’ representation. Respondents’ attorney, Mr. Waddell, proceeded with his case and at the conclusion of the hearing, the trial court granted the writ of mandamus requested by Schieffier, Willis, and Corder.

Additional confusion continued after the November 12 hearing when Mr. Simes, with his clients, attended the November 18 show-cause hearing to determine if the petitioners had willfully violated the trial court’s November 12 order and therefore were in contempt. Simes pressed the judge to rule Simes disqualified on the basis that he had a conflict, but the judge refused to do so. Attorney John Walker also appeared at the November 18 hearing and, immediately prior to its commencement, Mr. Walker revealed he had been approached by the five petitioners regarding appearing on their behalf individually. Walker conceded he had not been hired by the Phillips County Quorum Court. He urged that the petitioners were entitled to notice served on their counsel and because Simes had a conflict in representing petitioners, petitioners should be entitled to other counsel. The judge countered, suggesting counsel had given the court no notice of Mr. Walker’s possible representation of the petitioners or of any need for a continuance. At the end of the counsels’ and judge’s exchanges, the trial court proceeded with the show-cause hearing and Walker and Simes chose not to participate in the proceeding. As mentioned earlier in this opinion, each of the five petitioners invoked the Fifth Amendment when asked questions by the respondents’ attorney, Mr. Waddell.

Because petitioners appeared at the November 12 and 18 hearings without counsel being present during the taking of evidence, the petitioners raised no objections or legal arguments concerning the merits of the case other than those their counsel had raised at pretrial. In fact, except for those arguments raised and ruled on at the November 12 proceeding, some of the issues now raised by the petitioners/appellants are being raised for the first time. Petitioners blame this inadequate and confused record on the trial court and respondents, and the respondents contend the petitioners were at fault.

What is clear in this case is that Mr. Simes was never disqualified, yet, he essentially abandoned his clients at crucial times at both hearings. Our Rule 64(b) of the Arkansas Rules of Civil Procedure provides a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Rule 64(b) further provides as follows:

Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefore to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.

Our court has held that provision (b) is aimed at protecting the client’s interests and the trial court must look at a motion to withdraw from the point of view of the client, not the attorney. Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996). In fact, in Hammett, the court held that appellant, Jones-Blair Co., was entitled to a new trial because its attorney was allowed to withdraw from the case in violation of Rule 64(b). 326 Ark. at 79-80. Significantly, the court further held that, in these attorney-withdrawal matters, the trial court must play an active role in determining whether the requirements of Rule 64(b) have been met. Id.

We also take note of Rule 64(a), which provides that, when additional counsel is employed to represent any party in a case, that counsel shall immediately cause the clerk to enter his name as attorney of record in the case and then shall notify the court and opposing counsel that he has been employed. Rule 64 was obviously not followed by Mr. Simes, and in these circumstances, he should never have been allowed to withdraw from either the November 12 or November 18 proceedings. As for Mr.Walker, it appears he had never been employed by petitioners, so Rule 64 could be said to be inapplicable to him. By the same token, Mr. Walker and his concerns over the conduct of the November 18 hearing are of no consequence, since he did not make a proper appearance on the petitioners’ behalf.

Next, with regard to Mr. Wilson’s disqualification and whether he may now challenge the trial court’s rulings, we note the record is bereft of any evidence showing he was properly hired by the quorum court, nor does it show he made any motion requesting the trial court to stay the November 12 proceeding so he could file a notice of appeal. The only notice of appeal filed concerning the November 12 order was entered by the quorum court members from the trial court’s order, and that notice contained no mention of the trial court’s ruling Mr. Wilson disqualified. For these reasons, we hold that any attempt to appeal the trial court’s disqualification ruling has not been properly preserved.

We are mindful of the fact that the petitioners had notice that the trial court had ruled at the November 12 hearing that they had the duty to call a special election under Act 1357. They also appeared at the November 18 show-cause hearing with Mr. Simes, even though Simes opined at the hearing that he had a conflict and should be disqualified. In sum, petitioners obviously had some knowledge that they could be without representation at the November 18 hearing. The question arises as to whether petitioners waived their right to counsel in those circumstances or whether they had played some part in having no representation at the hearing.

Neither the trial court nor the respondents explored the petitioners’ blame regarding their lack of representation, even though such was certainly in order, as we have indicated by our decision in Hammett. Because our Rule 64(b) is aimed at protecting the client’s interests when deciding if an attorney violated the Rule, thereby prejudicing his clients’ rights to a fair trial, we believe error occurred, which requires our remanding of this case for another contempt hearing.

In remanding this matter, we realize further delay will take place in resolving this matter. Nonetheless, this court is a deliberative body whose function in large part is to review records, consider legal arguments, and determine if error resulted in the trial court proceedings. It is also evident that much of the confusion and delay has ensued from Mr. Simes’ fading to comply with Rule 64(b), which failure enures to the advantage of the petitioners, who have collectively voted they do not wish to call a special election. Even so, our concern is in reaching a decision that fairly interprets Act 1357, which is the law that respondents/appellees claim requires the Phillips County Quorum Court to call a special election within a 120-day period. Respondents/appellees are well aware that if they are mistaken in their belief that Amendment 7 does not apply in this case, any special election date the quorum court sets, other than a regular or general election date, would conflict with Amendment 7 provisions, since the Amendment requires county initiated measures to be submitted only at regular elections. Obviously, this Amendment 7 issue bears on whether petitioners/appellants can be held in contempt when that part of the Act could be unconstitutional and any election held under the Act could be a nullity. See Phillips v. Rothrock, 194 Ark. 945, 109 S.W.2d 1254 (1937).

We acknowledge the respondents/appellees’ argument below and before us now that Amendment 7 is inapplicable. They cite McFerrin v. Knight, Clerk, 265 Ark. 658, 580 S.W.2d 463 (1979), to support their argument, and refer to language in McFerrin that says Amendment 7 has no application to local-option petitions, which are governed by statute. However, the correlative rule is that, once such local-option petitions are prepared under the provisions of the local-option statutes, and are filed with the county clerk, the subsequent procedure must be governed by Amendment 7. See Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77 (1962). Furthermore, this court in Brown v. Davis, 226 Ark. 843, 294 S.W.2d 481 (1956), stated the rule more definitively by saying after such petitions are filed with the county clerk, subsequent proceedings thereon shall be had and conducted in the manner provided for county initiative measures under Amendment 7 and its enabling acts. See also Ward v. Boone, 231 Ark 661, 332 S.W.2d 245 (1960).

In short, it is clear the statement of the law in McFerrin relied on by respondents/appellees does not necessarily decide whether the provisions of Act 1357 solely govern the county initiative petition now at issue here. In reversing and remanding this case, for the reasons discussed above, we specifically direct the parties to fully develop and argue this Amendment 7 issue which will permit the trial court the opportunity to rule on the Amendment’s applicability, and if it determines the Amendment is applicable, what effect such a holding would have on any contempt proceedings against petitioners/appellants. Meanwhile, this court continues its stay order until the contempt proceeding has been retried and concluded. If the losing parties appeal the trial court’s contempt ruling, we will expedite the appeal and have our clerk set an early briefing schedule. Regarding the petitioners’ request for a writ of prohibition, the relief is denied since such extraordinary relief is not a substitute for an appeal. See Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

Reversed and remanded.

IMBER, J., not participating.

       In writing this opinion, we at different times refer to petitioners as petitioners/ appellants and to respondents as respondents/appellees.

       Quorum court member Trudie Miller, who was one of the six members refusing to enact the ordinance calling an election, did not appear at the circuit court’s show-cause hearing and she was not incarcerated.

       At this point, we note that the respondents/appellees argued below and before us that this and the other initiative and referendum statutes do not apply here because Act 1357 is a special procedure like local-option statutes. They contend Amendment 7 and its enabling statutes are inapplicable. We discuss this matter later in this opinion.

       The record reflects that no question was raised by anyone concerning the sufficiency of the signatures or initiative petitions filed with the Phillips County Clerk in this case, so no chancery court review was necessary under Amendment 7.

       We note that, under the first issue, petitioners also submit that the mandamus action against them was premature, because they, as quorum court members, have merely témporarily postponed action on the proposed ordinance calling the election, and therefore have not as yet violated Act 1357. Petitioners’ actions (and failures to act) belie any contention that they have any intent to comply widi the Act, especially since while they theoretically could set an election to be held before the 120-day limitation expires, any election date now set in December 1999 will prevent many statutes bearing on election events, such as providing for absentee ballots and fixing precinct boundaries, from being complied with because those events must be done no later than thirty days before an election.

       We are also aware of the facts and holding in Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987). There, the court held that Diebold’s attorney should not have been permitted to withdraw, but the default judgment against her was not set aside because she had not kept up with her case. Here, the petitioners/appellants obtained counsel and made their required appearances; it certainly has not been shown petitioners/appellants have not been diligent in keeping up with their case.

       Amendment 7 also requires such initiative petitions to be filed not less than sixty days nor more than ninety days before the regular election-which in the instant case made the respondents/appellees’ petition premature. Arkansas’s next regular election will be in November of 2000.


author: PER CURcourt’s

text:
    Dick BARCLAY, Director, Arkansas Department of Finance & Administration v. FARM CREDIT SERVICES, et al.

    99-1432
    5 S.W.3d 473
    Supreme Court of Arkansas
    Opinion delivered December 10, 1999

      Beth B. Carson, Chief Counsel, Revenue Legal Counsel; Martha Hunt, Revenue Legal Counsel, for petitioner.
    No response.
   PER CURcourt’s

On July 1, 1999, we affirmed the chancery court’s summary judgment ruling that the respondents, four Production Credit Associations, were entitled to immunity from state sales and income taxation by virtue of their status as “federal instrumentalities.” State v. Farm Credit Servs., 338 Ark. 322, 994 S.W.2d 453 (1999). On September 9, 1999, we granted the State’s motion for stay of the mandate in that case, in order to allow the State to file a petition for writ of certiorari in the Supreme Court of the United States. Ark. S. Ct. R. 5-3(c).

On November 23, 1999, the respondents filed a petition for writ of mandamus in the Pulaski County Chancery Court, Second Division, which sought to enjoin the Department of Finance and Administration (DFA) and its attorneys from filing a petition for writ of certiorari in the Supreme Court. The respondents alleged in the petition that the DFA’s actions violated Ark. Code Ann. Sec. 25-16-703(a) (Repl. 1996), which provides:

The Attorney General shall maintain and defend the interests of the state in matters before the United States Supreme Court and all other federal courts and shall be the legal representative of all state officers, boards, and commissions in all litigation where the interests of the state are involved.

On November 24, 1999, the chancellor issued a verbal order granting the respondents’ request for writ of mandamus to prohibit DFA and its attorneys from representing the State of Arkansas before the Supreme Court. Following the second division chancellor’s recusal on December 3, 1999, the case was transferred to the Sixth Division of Pulaski County Chancery Court. On that same day, DFA filed a motion for reconsideration and modification of the chancellor’s verbal ruling. On December 8, 1999, the sixth division chancellor issued a writ of.mandamus prohibiting DFA and its attorneys from taking any action on behalf of the State of Arkansas before the United States Supreme Court in State v. Farm Credit Servs., supra. The chancellor also denied DFA’s motion for reconsideration and modification.

DFA promptly filed a petition for writ of certiorari in this court on December 8, 1999, along with a motion for expedited consideration and an application for temporary relief. The motion to expedite consideration of this matter is granted. Pending our expedited review of DFA’s petition for writ of certiorari in this matter, we stay the writ of mandamus and the order denying reconsideration entered by the chancellor on December 8, 1999, in order to permit DFA and its attorneys to file a petition for writ of certiorari in the Supreme Court by the December 13, 1999 deadline in State v. Farm Credit Servs., supra. The parties are ordered to brief the issues raised in DFA’s petition for writ of certiorari, as well as the basis for the chancery court’s jurisdiction to issue a writ of mandamus in this matter.


author: WH. “Dub” Arnold, Chief Justice.

text:
    Elizabeth Gammon BROWN v. ARKANSAS DEPARTMENT of CORRECTION, and Larry Norris, Director, and Doe Defendants Nos. 1-5
    98-1012
    6 S.W.3d 102
    Supreme Court of Arkansas
    Opinion delivered December 16, 1999

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: M. Wade Hodge, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Justice.

Appellant, Elizabeth sticepro . litigant and inmate at the Arkansas Department of Correction, brings the instant appeal challenging the trial court’s dismissal of her complaint against appellees, Arkansas Department of Correction and Larry Norris, its director. According to her complaint, filed on April 7, 1998, Brown sought declaratory relief and a jury trial in relation to her failed attempts to pursue appeals of administrative decisions that resulted in her receiving four “disciplinaries.” After failing to receive responses to her “appeals” and after being informed that appellees never received the appeals, Brown filed the instant action claiming that appellees’ mailroom procedures violated her due-process rights. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(b)(6) (1999). After reviewing Brown’s complaint and the trial court’s decision dismissing her action pursuant to Ark. R. Civ. P. 12(b)(6) (1999), we conclude that appellant’s arguments lack merit, and we affirm.

Notably, Brown acknowledges that the trial court never considered the merits of her claim. She also concedes that she never challenged the “method” or “falsity” of the disciplinaries she received. Unfortunately, appellees devote a large portion of their brief to the merits of Brown’s claim. Also, many of the issues discussed by both parties are raised for the first time on appeal. It is well settled that we will not address arguments raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 655, 1 S.W.3d 20 (1999); see also McGhee v. State, 330 Ark. 38, 42, 954 S.W.2d 206, 208 (1997). In fact, the only issue before us on appeal is whether the trial court properly dismissed Brown’s complaint.

Although Brown contends that her prison setting deprived her of the ability to properly pursue her appeal, we disagree. Appellant claims that she is “ignorant of the law” but that she should be excused. She adds that she has “no way of knowing whether the citations cited in this appeal remain good law and binding....” Further, she states that she has limited access to case law and that she was unaware that recent statutory enactments may preclude the relief she seeks. Finally, she notes that her brief is “so cluttered with immaterialities because of [her] ‘forced’ ignorance.” In response to Brown’s request for indulgence, we have long held that a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and he receives no special consideration on appeal. Gibson v. State, 298 Ark. 43, 46, 764 S.W.2d 617, 619 (1989) (citing Philyaw v. State, 288 Ark. 237, 248, 704 S.W.2d 608, 613 (1986)), cert, denied, 491 U.S. 910 (1989). Accordingly, we now address appellant’s sole issue on appeal, namely, whether the trial court erred by dismissing her complaint.

Motion to dismiss

When this court reviews a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and we view them in the light most favorable to the plaintiff, here, Brown. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244, 246 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d 218, 219 (1989) (citing Battle, 298 Ark. 241, 766 S.W.2d 431 (1989))). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Hames, 332 Ark. at 441, 966 S.W.2d at 246 (citing Neal, 316 Ark. at 596, 873 S.W.2d 552 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205, 778 S.W.2d 218 (citing Battle, 298 Ark. 241, 766 S.W.02d 431))).

Moreover, in determining whether an action was properly dismissed pursuant to Ark. R. Civ. P. 12(b)(6), for failure to state a claim, we construe the complaint in light of the requirements of Ark. R. Civ. P. 8(a)(1). Specifically, we have noted that:

Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief. . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . .” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).

Shepherd v. Washington County, 331 Ark. 480, 487, 962 S.W.2d 779, 781 (1998) (quoting Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997) (internal citations omitted)).

Here, although appellant’s complaint is lengthy and references numerous statutory and constitutional provisions, it fails to set forth facts sufficient to state a claim. Brown merely claims in conclusory fashion that her due-process rights were violated, but she fails to set forth the facts necessary to support her claim. Additionally, the trial court may dismiss an action brought by an incarcerated person with respect to prison conditions if it believes that the claim, on its face, is frivolous, malicious, seeks monetary relief from an immune defendant, or fails to state a claim upon which relief can be granted. Ark. Code Ann. § 16-106-302(b) (Supp. 1999).

Also, much of appellant’s cited case law is not controlling precedent in our jurisdiction. Specifically, Brown fails to argue why case law from other jurisdictions should apply to the instant case. Mere citation of another jurisdiction’s authority is not singularly persuasive to prove that the State of Arkansas should interpret a case similarly. See Rockefeller v. Rockefeller, 335 Ark. 145, 153, 980 S.W.2d 255, 258 (1998). In any event, we have long held that we do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken. See Perryman v. Hackler, 323 Ark. 500, 508, 916 S.W.2d 105, 109 (1996) (citing Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)). In light of the foregoing, we hold that the trial court did not err by granting appellees’ motion to dismiss.

Affirmed.