author: W.H.“Dub” Arnold, Chief Justice.

text:
    CITY of RUSSELLVILLE v. Sharon (Reynolds) HODGES
    97-152
    957 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Dunham & Faught, P.A., by: Jame Dunham, for appellant.

      Young & Finley, by: Dale W. Finley, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This is a zoning case. The appellant, the City of Russellville, appeals the decision of the Pope County Chancery Court that it was estopped from enforcing its zoning ordinance due to the actions of its building official. Because we agree with the City that the building official was not authorized to waive the zoning requirements, we reverse and the chancellor’s decision remand.

The City of Russellville annexed the Bishop Addition residential subdivision in 1985.. On January 23, 1986, it amended Ordinance No. 859, thereby rezoning the area R-2, a classification that prohibits mobile homes or trailers. At that time, there were no mobile homes on lots 13, 14, 15, and 16 of Block G or East Sixth Street, the subject of this dispute. Sometime after annexation and rezoning, appellees Sharon Reynolds Hodges, Tom Reynolds, Billy Bowman, Roy Turner, and others placed mobile homes on the lots at issue. On May 9, 1995, the City filed suit for injunctive relief to enforce its zoning ordinance. Though it named eleven defendants in its complaint, only five answered or appeared, which included the appellees, who affirmatively pleaded that the City was estopped from enforcing its zoning ordinance due to the conduct of its building official, Gearl Cooper, who had issued electrical permits and power tags for the mobile homes.

At trial, Mr. Cooper testified that he had issued electrical and other types of inspection permits to the structures. However, as building official, he stated that he was not authorized to alter the City’s zoning classifications. According to Mr. Cooper, he had been aware that there had been mobile homes in the Bishop Addition “since the first one moved in.” It was his testimony that, Joe Vinson, the chairman of the planning commission, had told him that he was going to allow mobile homes to be placed in the area.

City Clerk Helen Price testified that she served on the planning commission. According to Ms. Price, an individual member of the commission did not possess the authority to make a decision for the group. It was her testimony that if Mr. Vinson told Mr. Cooper in 1985 or 1986 that mobile homes would be allowed in Bishop Addition, he would have done so without proper authorization, as there had been no vote by the planning commission and city council making such an allowance.

Mayor Phil Carruth testified that neither the building official, his employees, nor the city engineer had authority to change zoning laws or to allow the placement of structures that are in violation of the city’s zoning laws. It was his testimony that, if there were any actions taken by city employees to allow the placement of mobile homes in the Bishop Addition, they were not official authorized acts of the City.

After hearing all the evidence, the chancellor issued written findings of fact. These findings included that the city’s building official, Mr. Cooper, along with his assistants, had at times issued permits for electrical power hookups and had inspected and tagged the hookups for the mobile homes while knowing that the placement of these homes in the area might be improper. According to the chancellor, Mr. Cooper’s acts were authorized acts of the city. The chancellor further found that the chairman of the planning commission, Joe Vinson, was also aware that some mobile homes had been placed in Bishop Addition after annexation. It was also the chancellor’s finding that, while none of the appellees had ever applied for or received a building permit to place mobile homes in the area, they were unaware that Bishop Subdivision was zoned R-2, and had relied on the inspections and the budding official’s approval. After making these findings, the chancellor concluded that, while the City had made a prima facie entitlement to the injunctive relief requested in its complaint, the defendants who appeared had proved by a preponderance of the evidence that the City should be estopped from enforcing its zoning ordinance, and that the defendants who had not appeared or answered were entitled to the benefit of this affirmative defense.

Four elements are necessary to establish estoppel. They are: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance. State v. Wallace, 328 Ark. 183, 941 S.W.2d 430 (1997); Foote’s Dixie Dandy, Inc. V. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). Additionally, we have specifically held that a sovereign is not bound by the unauthorized acts of its employees. Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993); Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990); Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W.2d 231 (1950). On appeal, we do not reverse a chancellor’s findings of fact unless they are clearly against the preponderance of the evidence. Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996).

We need not decide whether the four elements are met because we conclude that the chancellor erred in finding that Mr. Cooper was authorized to waive the City’s zoning requirements. While the chancellor found that Mr. Cooper’s issuance of electrical permits and power tags constituted authorized acts of the City, this finding disregards the testimony of both Mayor Carruth and Mr. Cooper himself that he had no authority to authorize the placement of mobile homes in the Bishop Addition in violation of the zoning ordinance. We can find no testimony in the record that refutes the City’s proof on this issue. As in Miller v. Lake City, supra, the appellees did not meet all the requirements necessary to prove estoppel, as “the building inspector . . . was not authorized to waive the zoning requirements.” 302 Ark. at 270. Therefore, we must conclude that the chancellor’s finding that the budding official was authorized to waive the City’s zoning requirements was clearly against the preponderance of the evidence. Accordingly, the chancellor’s ruling that the City was estopped from enforcing its ordinance was in error.

Reversed and remanded.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Brian John WHITE v. STATE of Arkansas
    CR 96-1233
    957 S.W.2d 683
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Sam Sexton III, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Brian John White appeals from a January 25, 1996 judgment revoking his probation and sentencing him to serve six years concurrently on each of four felony charges to which he pleaded guilty in February of 1993. On February 19, 1993, the Benton County Circuit Court placed Brian John White on supervised probation for five years based on two separate cases. In CR 91-544-1, Mr. White was charged with terroristic threatening, theft of property, and fraudulent use of a credit card. In CR 92-339-1, Mr. White was charged with forgery in the second degree. In White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997) (White I), Mr. White appealed the revocation of his probation in CR 92-339-1, and this Court affirmed the revocation. Mr. White raises the same points on the appeal in this case, CR 91-544-1, and we affirm.

In his first point, Mr. White, citing Ark. Code Ann. § 5-4-310 (Repl. 1993), again argues that because his probation-revocation hearing was not conducted within the requisite sixty-day period after his arrest, the probation revocation petition should have been dismissed. On July 10, 1994, Mr. White was arrested and charged with the June 24, 1994 rape of a twelve-year-old girl. That felony charge resulted in a revocation petition, but the record does not disclose if or when Mr. White was arrested on the revocation petition. Mr. White was ultimately tried on the rape charge and the probation revocation on January 23, 1996.

In White I, this Court, affirming the Trial Court, held that Mr. White waived his argument for dismissal, when at an October 17, 1994 hearing, he agreed to having the revocation hearing with the substantive proceedings. This Court, citing Barnes v. State, 294 Ark. 369, 742 S.W.2d 369 (1988), stated that “[w]hen a defendant prefers that the revocation matter be deferred until disposition of an underlying charge, he cannot then turn around and complain of delay.” White I, 329 Ark. at 489; 951 S.W.2d at 557.

Mr. White argues that his constitutional right to a speedy trial was violated due to a delay in hearing the revocation petition. In White I, we held that we had no basis upon which to address that argument because Mr. White had not received a ruling in the Trial Court on the applicability of Ark. R. Crim. P. 28.1 to a revocation proceeding. We reiterate that ruling here. Additionally, we have recently recognized that the constitutional right to a speedy trial does not apply to probation revocations. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997).

Mr. White also argues that he was not sentenced properly in accordance with Ark. Code Ann. § 16-93-303 (Supp. 1995), which requires that the court enter a judgment and commitment order. As noted in White I, the Trial Court entered such an order on January 25, 1996, on the charges for which Mr. White had been placed on probation.

Affirmed.

Corbin, J., not participating.


author: Tom Glaze, Justice.

text:
    Phillip PETRUS, et al. v. The NATURE CONSERVANCY and the Arkansas Natural Heritage Commission
    97-156
    957 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Green, Henry & Green, by: David G. Henry, for appellants.

      Marian M. McMullan, P.A., for appellees.
   Tom Glaze, Justice.

This case is a sequel to Nature Conservancy v. Kolb, 313 Ark. 110, 853 S.W.2d 864 (1993). In Kolb, this court determined that the Nature Conservancy and Arkansas Natural Heritage Commission’s predecessors-in-title had obtained a 100-foot-wide easement, not a fee simple interest, in a strip of land across the north half of a section of land in Lonoke County, so long as that land was used for railroad purposes. Kolb and others who owned property adjoining the disputed easement filed suit to quiet title, alleging that, when the right-of-way was no longer used for railroad purposes, all interest in the right-of-way reverted to them. The Kolb court upheld the trial court’s ruling, adopting Kolb’s and the adjoining landowners’ contention.

The Kolb decision was relied on by Phillip and J. D. Petrus and six other Prairie County landowners (collectively Petruses) when filing this quiet title suit against appellees, Nature Conservancy and Arkansas Natural Heritage Commission (ANHC). The Petruses claimed that, in 1985, when the appellees’ predecessors-in-title abandoned their railroad right-of-way easement located in Prairie County, the disputed easement automatically reverted to them as adjoining property owners. However, Nature Conservancy and ANHC counterclaimed, stating that, even if the Petruses’ reliance on Kolb was correct, they had acquired title by adverse possession to the strip of land after it was abandoned in 1985.

After trial on the parties’ respective issues, the trial court dismissed the Petruses’ reversionary interest claim, and ruled the Nature Conservancy and ANHC had sustained their burden of proof, showing they had acquired title by adverse possession to the abandoned easement except for those portions of the old railroad right-of-way being used by the Petruses for farming, drainage, roadways, and wells under, across, and on the right-of-way. During trial, Nature Conservancy and ANHC stipulated that they did not intend to lay claim to those portions of the right-of-way the Petruses had continued to use after the easement had been abandoned for railroad purposes. In addition, they agreed to underwrite the expenses of conducting a survey to identify and legally describe those portions of the right-of-way the adjoining appellant landowners continued to use.

The Petruses filed their appeal in the court of appeals, arguing only that Nature Conservancy and ANHC’s proof was insufficient to show adverse possession, but the court of appeals certified the appeal to us, raising the question as to whether the trial court’s decree was a final appealable order. The court of appeals suggests that, since the trial court purportedly quieted title in Nature Conservancy and ANHC, the court’s decree should have specifically set out the legal description of the property, or portion thereof, to which each party and landowner had title. The court of appeals is right.

Under Rule 2(a) 1 and 2 of the Appellate Procedure ■— Civil, an appeal may be taken from a final decree entered by the chancery court and an order which in effect determines the action and prevents a judgment from which an appeal might be taken from, or discontinues the action. We have interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Doe v. Union Pac. R.R. Co., 323 Ark. 237, 914 S.W.2d 312 (1996). The order must be of such a nature as to not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Id.

In a long line of cases, this court has held that a chancery court’s decree must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); see also Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991); Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970); McEntire v. Robinson, 243 Ark. 701, 421 S.W.2d 877 (1967). In the present case, the chancellor entered a decree captioned “Final Order” which purported to dismiss the Petruses’ claims and found ANHC had prevailed on its adverse possession claim. Instead of identifying the boundary lines of the properties in dispute, the trial court’s decree merely made the following relevant findings:

ANHC filed its claim of adverse possession only to those lands which were not actually being cultivated as farmlands by the [Petruses].
ANHC announced at the trial that it did not intend to lay a claim to the continued use of portions of the old railroad right-of-way presently being used by the [Petruses] including cultivation, drainage outlets, roadways, and wells under, across, and on the railroad right-of-way.
ANHC further announced at trial that in the event ANHC prevailed in its action for adverse possession, it would bear the expense of conducting a survey to adequately identify and legally describe the [Petruses’] respective uses of the right-of-way and [Petruses’] uses will be specifically reserved.

Nowhere in the chancellor’s decree is the property awarded to ANHC identified along with the portions excepted and reserved to the Petruses. Ordinarily, one who enters adversely under color of title and actually possesses any part of the tract is deemed to have possession of the entire area described in the document constituting color of title. St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S.W.2d 882 (1944); Bailey, Trustee v. Martin, 218 Ark. 513, 237 S.W.2d 16 (1951). Obviously, neither the chancellor nor the respective parties intended for this settled rule of property to apply to the circumstances here, since ANHC claimed only the disputed right-of-way minus those portions the Petruses continued to farm and use. While the chancellor and the parties apparently intended to resolve the boundary fines via a future survey, the permanent record in z boundary-line decision should describe the fine with sufficient specificity that it may be identified solely by reference to the order. See Harris, 306 Ark. at 261; Riddick, 313 Ark. at 712. Otherwise, leaving those fines to be established by a future survey may likely result in additional disputes, litigation, and appeals. Again, the case law that requires a chancery decree to fix and describe the boundary fines in a dispute between landowners discourages piecemeal litigation. McEntire, 243 Ark. at 704.

The suggestion has been raised that this court’s more recent case of Riddick v. Streett, supra, might represent a departure from this court’s exacting rule that requires the trial court’s decree to set out boundary line descriptions when deciding such landowner disputes. The suggestion is without merit. In Riddick, the court did factually distinguish that case from earlier cases, noting that Riddick involved a dispute between a multitude of landowners, rather than just adjoining landowners. Such a distinction, however, has no legal significance, since irrespective of the number of landowners involved, any such landowner dispute must be resolved by fixing and defining boundary lines. Unlike the case at hand, the chancellor in Riddick made over two hundred findings pertaining to ownership of properties. Although the Riddick court determined all surveying angles, distances, and points of reference were not fully described, it remanded the case for the chancellor to instruct the survey or to use the chancellor’s and this court’s findings pertaining to easements and ownership of the disputed area and from them, establish an official replat to be incorporated into an amended decree which would remove the various clouds on the landowners’ titles to their respective real estate.

In sum, we hold this court’s rule is well settled, and requires the chancellor to modify his decree to fix and define the boundary lines, including those establishing ' the Petruses’ encroachments. Because we hold the appeal is premature and the decree lacks finality, we dismiss without prejudice. See Doe, 323 Ark. at 242.

Newbern, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Jake WHEELER and Bobby Wheeler v. Gary MYERS and Donna Kerns
    97-396
    956 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Joseph H. O’Bryan, for appellants.

      Malcolm Smith, for appellees.
   Donald L. Corbin, Justice.

Appellants Jake and Bobby-Wheeler appeal the orders of the Prairie County Chancery and Probate Courts, finding that Appellees Gary Myers and Donna Kerns are the heirs of Ervin Myers to the exclusion of Appellants. This appeal was certified to us from the court of appeals on the basis that it presents an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d). Appellants’ sole point for reversal is that the trial court erred in holding that the right of adopted children to inherit from their natural ancestors is dependent upon the laws on adoption and inheritance in effect at the time of the natural ancestors’ deaths. We find no error and affirm.

The essential facts are not in dispute. Appellants and Appellees are the four surviving natural children of Ira Myers. Ira Myers was the sole child of Ervin and Mae Myers. Appellants were adopted by their stepfather Robert James Wheeler in 1961. Ira Myers died in 1973. Ervin Myers died on September 28, 1980, and was survived by his wife Mae. Mae Myers held possession of the property at issue from the time of Ervin Myers’s death until her own death in 1995.

Appellants filed a petition in the Prairie County Chancery Court on December 27, 1995, requesting that the court declare and adjudicate the rights to the possession and rental income from the property at issue. Appellees denied all material allegations contained in the petition and filed a counterclaim stating that Appellants had no interest in the property because they had been adopted and had thus ceased to be heirs of Ira Myers. While that action was pending in the chancery court, Appellees filed a petition in the Prairie County Probate Court requesting the court to conduct a hearing to determine the decedent’s heirs.

The trial court found that Jake and Bobby Wheeler were legally adopted by Robert James Wheeler in 1961 and that the temporary and final orders of their adoption were not subject to collateral attack. The trial court determined that the right to inherit property does not vest until the death of the owner and that the law in effect at the time of the owner’s death is controlling as to matters of inheritance. The court concluded further that Ark. Code Ann. § 9-9-215 (Supp. 1995), which was passed in 1977 and was in effect at the time of Ervin Myers’s death, provides that all legal relationships between the adopted individual and his or her natural relatives, including the right of inheritance, are terminated upon the final decree of adoption. Accordingly, the trial court ruled that the application of section 9-9-215 precluded Jake and Bobby Wheeler from inheriting from their natural grandfather, Ervin Myers.

Appellants do not dispute that the law in effect at the time of Ervin Myers’s death would preclude them from inheriting any part of his estate. Thus, the sole issue for our review is whether the trial court erred in ruling that the law in effect at the time of Ervin Myers’s death is controlling as to Appellants’ rights to inherit from his estate. For the reasons outlined below, we conclude that the trial court’s ruling was correct.

Appellants rely heavily on this court’s decisions in Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938), and Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950), for the proposition that the law in effect at the time of adoption is controlling. Appellants’ reliance is misplaced, however, as both those cases addressed factual situations involving challenges to the validity of the adoption orders themselves. This court held in both cases that the law in effect at the time of the adoption must be applied when attempting to test the validity of the adoption order. Were Appellants questioning the validity of their adoptions in the present case, we would be required to apply the law that was in effect at the time of their adoptions. We decline, however, to extend this legal principle to their assertion that they should be recognized as heirs of their natural grandfather’s estate. Furthermore, Appellants concede that the analogy between the Smith case and the present one is weak due to the fact that in Smith, all of the relevant events, including the children’s adoptions and the death of both ancestors, occurred prior to the enactment of the law sought to be applied. Hence, the holdings in those cases are not dispositive of the issue at hand. We thus turn to our case law on the rights of inheritance in general.

This court has long recognized the principle that a living person has no heirs. In Wallace v. Wallace, 179 Ark. 30, 13 S.W.2d 810 (1929), this court held:

In the strictly proper sense of the word, no one is an heir until after the death of the ancestor, and the word signifies one who has succeeded to a dead ancestor; it is used to express the relation of persons to some deceased ancestor, and cannot be applicable to one whose ancestor is living.

Id. at 34-35, 13 S.W.2d at 812 (quoting 29 C.J. 290). Similarly, in Purinton v. Purinton, 190 Ark. 523, 80 S.W.2d 651 (1935), it was observed that the rights of the decedent’s family to inherit from the decedent were fixed and vested as of the date and time of the decedent’s death. More recently, this court has reiterated that the right to inherit property is a right that accrues upon the owner’s death and that “[o]n a person’s death, the rights of his heirs become vested and may not be impaired by subsequent legislation.” Lucas v. Handcock, 266 Ark. 142, 153, 583 S.W.2d 491, 496 (1979).

Correspondingly, in Estate of Caisson, 289 Ark. 216, 710 S.W.2d 211 (1986), upon which the trial court relied for its ruling, this court was presented with the issue of whether the adoptive or blood heirs of an intestate decedent may inherit the estate of an adopted child. As is true in the present case, in Caisson, the trial court determined that the law pertaining to descent and distribution at the time of the decedent’s death was controlling. This court agreed with the trial court, stating:

We do not hesitate to hold that the law in effect at the time of the death of the adopted child is controlling on matters of inheritance. To hold otherwise would create a myriad of problems and confuse the law.
The right to inherit property does not vest until the death of the owner and the devolution of property is controlled either by common law or statute.

Id. at 217, 710 S.W.2d at 212 (emphasis added). Appellants attempt to distinguish this holding on the basis of the relationship of the parties to one another. In effect, they argue that because the facts presented in Caisson involved the estate of an adopted child, as opposed to the present facts where the estate is that of a natural ancestor, the holding of that case cannot be applied to the issue at hand. Although, arguably, the holding in Caisson was necessarily tailored to the facts of that case, we believe that same rationale should be extended to the present case.

Thus, notwithstanding whether the adopted person is the heir or the ancestor or, correspondingly, whether the natural relative is the claimant to the estate or the decedent, the law in effect at the time of the death of the ancestor is controlling on matters of inheritance. As was stated in Caisson, “[t]o hold otherwise would create a myriad of problems and confuse the law.” Id. at 217, 710 S.W.2d at 212. We have found much support for this conclusion amongst the holdings of other jurisdictions. See, e.g., Black v. Washam, 421 S.W.2d 647 (Tenn. Ct. App. 1967); Hamilton v. Butler, 397 S.W.2d 932 (Tex. Civ. App. 1965); In re Williams, 144 A.2d 116 (Me. 1958); In re Trainor’s Estate, 256 N.Y.S.2d 497 (N.Y. Surr. Ct. 1965).

Accordingly, because Appellants’ rights to inherit from their natural relatives could not have possibly vested until the time of Ervin Myers’s death in 1980, the law in effect at the time of his death is controlling. The trial court thus correctly concluded that section 9-9-215, which had been in effect since 1977, prohibited Appellants from inheriting from Myers’s estate.

Affirmed.

       This section was previously codified as Ark. Stat. Ann. § 56-215 (Supp. 1977). There have since been changes in that provision, however, they are not relevant to the issue presented in this case.


author: Annabelle Clinton Imber, Justice.

text:
    Charles DEPEW v. James L. JACKSON
    97-553
    957 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Bernard Whetstone, P.A., by: Bernard Whetstone and Kevin Odum, for appellant.

      Anderson & Kilpatrick, L.L.P., by: Joseph E. Kilpatrick, Jr., and Penny B. Wilbourn, for appellee.
   Annabelle Clinton Imber, Justice.

The appellant obtained a $1,600 jury verdict on a negligence claim brought against the appellee. The appellant moved for a new trial and argued, among other things, that the verdict was clearly against the preponderance of the evidence and that the jury erred in assessing the amount of the recovery. The motion was deemed denied, and the present appeal ensues. We find no error and affirm.

On August 1, 1995, Charles Depew was a passenger in a vehicle that was struck from behind in an automobile accident. Depew filed a complaint against James Jackson, alleging that the accident and his resulting injuries were due to Jackson’s negligence. Jackson admitted liability, and the case was submitted to the jury on the issue of damages only. At trial, Depew testified that the collision snapped or popped his neck back. A few days later, he developed increasing pain and soreness in his neck area. X-rays taken after a visit to the emergency room revealed a possible fracture in Depew’s spine, and Depew was referred to a neurosurgeon, Dr. Anthony Russell.

Dr. Russell examined Depew and recommended surgery. According to Dr. Russell, Depew had a bone that was not properly connected to another bone in his neck — this resulted in the possibility that the floating bone might be driven into his brain stem, rendering Depew a quadriplegic. This condition, known as an os odontoideum, was either a congenital abnormality where the bone fails to fuse properly, or a fracture that had occurred several years earlier and had failed to fuse and heal properly. Dr. Russell stated that it most likely “formed way back in the embryonic stage.” Cables were used in the surgery to fuse the floating bone with another piece of bone. As a natural consequence of this procedure, Depew lost range of motion in his neck, including a degree of stiffness. Constant pain was also consistent with the surgery, in addition to headaches. Depew later went to another physician to receive treatment for his pain, which included injections and other medications.

Depew’s medical bills amounted to over $15,000. Depew’s expert witness projected total damages in the amount of $345,794, which figure included past and future medical expenses, loss of household services and pain and suffering.

The jury returned a verdict for Depew in the amount of $1,600. Depew filed a motion for new trial, which was deemed denied. While Depew articulates a number of points on appeal, his argument consists of two primary components — that the verdict was clearly against the preponderance of the evidence, and that the jury erred in the assessment of the recovery.

1. Ark. R. Civ. P. 59(a)(6).

When a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence and is denied by the trial court, see Ark. R. Civ. P. 59(a)(6), this court will affirm if there is substantial evidence to support the verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Esry, supra. The evidence must force the mind to pass beyond suspicion or conjecture. Esry, supra. In examining whether substantial evidence exists, the verdict is given “the benefit of all reasonable inferences permissible in accordance with the proof.” Patterson, supra.

As controlling authority, Depew relies almost exclusively on Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), a case where the trial court granted the plaintiffs motion for new trial following a defendant’s verdict in a negligence case. Given that Young involved the appellate review of the grant of a motion for new trial, it provides us with littie guidance in the present case. Moreover, in Young there was no dispute that the plaintiff s injuries were sustained as a result of the accident. By contrast, the issue of proximate causation is the crux of the present case.

In attempting to show that the verdict was not supported by substantial evidence, Depew quotes extensively from Dr. Russell’s testimony concerning the stability of Depew’s spine both before and after the accident:

Q: [Y]ou can go on and have a fracture and still remain stable?
A: Yes.
* * *
Q: Then all at once you have some kind of insult or something happens to your body and it affects your stability at that point, then you start having trouble?
A: Yes.

When asked his opinion of Depew’s stability up until the time of the accident, Dr. Russell answered “stable with the potential for instability.” When asked about Depew’s stability given that he had no pain or dysfunction in the neck region up until the time of the accident, Dr. Russell testified “[i]t would tell you that most likely he was stable during that time although you could still be unstable.” Dr. Russell added that Depew’s pre-accident level of functioning did “not necessarily” indicate that he was stable, although in “almost all cases” the patient would have known about it sooner if he had instability. Ultimately, Dr. Russell opined to a reasonable degree of medical certainty that Depew was “[n]ot grossly unstable” before the accident. The fact that Depew had no pre-accident pain “could be an indicator that he had become unstable at the time of the collision.” When asked whether an “[os odontoideum] can remain stable all your life until you’re sixty-two years old,” Dr. Russell replied “True.” Plaintiff’s counsel then asked, “And you’ll never know you had it?”:

A: That’s true because you’ve still got all your ligaments in there holding it to this bone like it’s supposed to be there.
Q: That keeps it stable?
A: That keeps it stable, yes.

In operating on Depew, Dr. Russell wanted to “restore stability to [Depew’s] spine.” In a letter written to Depew’s attorney, Dr. Russell wrote that Depew’s “paraspinous muscle spasm” was a sequelae of his recent auto accident. In other deposition testimony Dr. Russell stated that it was his opinion within a reasonable degree of medical certainty that “the automobile accident aggravated the preexisting condition leading to [Depew’s] ultimate surgical procedure.” Dr. Russell answered in the affirmative when asked whether it was a reasonable assumption that Depew’s neck pain was caused by the collision, considering that he had no neck pain before but had persistent neck pain afterward.

The above-recited evidence does support Depew’s theory that the collision rendered his spine unstable, necessitating stabilizing surgery. However, other portions of Dr. Russell’s testimony are equivocal on the point, and tend to support Jackson’s position that the collision had nothing to do with aggravating or worsening Depew’s condition — the accident and resulting x-rays simply led to the discovery of the defect.

As quoted above, Dr. Russell testified that the os odontoideum condition was most likely congenital. Dr. Russell explained that “[t]he fracture was discovered by the emergency room physician at Southwest and then brought to my attention. Certainly, I commented on it, felt like it needed surgery.” When asked on cross examination whether he recommended surgery “[b]ecause of that condition where that is not fused,” and “because you thought that condition alone posed some threat to Mr. Depew,” Dr. Russell answered in the affirmative. Dr. Russell opined that the os odontoideum “certainly” occurred before the accident, and that the accident did not make the fracture any worse. At one point the following colloquy occurred:

Q: And this [is] a very similar thing. It showed a condition that was there?
A: Yes.
Q: Not caused by the accident?
A: No.
Q: Not made worse just shown to you, is that right?
A: Correct.

Thus, this above-recited evidence shows that Dr. Russell operated to repair a congenital defect that was not caused or even worsened by the accident. The accident had the incidental result of bringing Depew into the hospital for x-rays, which allowed the os odontoideum condition to be discovered. In reading from deposition testimony at trial, Dr. Russell was asked “Do you still stick with your statement that. . . [Depew] had a C-l, 2 instability aggravated by a motor vehicle accident?” Dr. Russell replied:

In the terms you’re asking for in a legal sense, I guess what I’ll have to say is no, you’re wanting me to say that the accident. . . When I said aggravated what I meant to say was, brought to our attention, that’s what I should have said. The accident brought this problem to our attention.

Dr. Russell could not say that it was “a hundred percent certain” that the accident aggravated a preexisting problem. In being asked whether he had changed his mind as to whether the accident aggravated a preexisting injury, Dr. Russell answered:

[Reading from deposition testimony.] “I haven’t changed my mind. I maintain the point that he had a preexisting condition, that due to the automobile accident, it was brought to our attention. And it ultimately led to his surgery, yes. I mean. . . I’ll never, ever dictate the word ‘aggravated’ in anything I do again because it seems to be a point of contention here. I don’t know. It’s suddenly changed meaning for me.” And I went on to state that due to the surgery, he will have permanent impairment, decreased range of motion, secondary to the operative procedure.

Depew makes much of the following statement contained in a letter written by Dr. Russell:

In my opinion it is more likely than not that had Charles Depew not been involved in the vehicle collision of August 1, 1995, and had not received any other injury to his neck then he probably would have lived the balance of his life in the same condition that he was in before the collision.

However, this statement does not necessarily establish that the collision proximately caused or aggravated the os odontoideum condition. Dr. Russell testified that a person with an os odontoideum condition could live “until you’re sixty-two” and not even know there was a problem. As a result of the collision, the os odontoideum condition was discovered and Dr. Russell recommended surgery to prevent the possibility, however remote, of the floating bone compressing the spinal chord and causing paralysis. As explained by Dr. Russell, “The surgery is not for those ninety-nine who don’t get injured it’s for that one that trips and become[s] Christopher Reeve.”

In summary, Dr. Russell’s testimony cuts both ways. While portions of it show that Depew’s spine was stable before the accident and unstable afterward, other portions establish that Depew had a congenital defect that was not caused or worsened by the collision. The incidental x-rays necessitated by the collision simply allowed the defect to be discovered and treated. Thus, the loss of mobility and pain due to the surgery, and the accompanying decrease in Depew’s ability to perform routine activities, were not proximately caused by Jackson’s negligence. Given the character of this testimony, the jury did not have to resort to conjecture or speculation to arrive at its verdict. This is especially true considering that we are to give the verdict “the benefit of ail reasonable inferences permissible in accordance with the proof.” See Patterson, supra. Because substantial evidence supports the verdict, we cannot say that the trial court erred in denying Depew’s motion for new trial on the ground that the verdict was clearly against the preponderance of the evidence.

2. Ark. R. Civ. P. 59(a)(5).

Generally, where the primary issue on appeal is the alleged inadequacy of the jury’s award, see Ark. R. Civ. P. 59(a)(5), this court will affirm the denial of a motion for new trial absent a clear and manifest abuse of discretion. See Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); National Bank of Commerce v. McNeill Trucking Co., Inc., 309 Ark. 80, 828 S.W.2d 584 (1992); Smith v. Petit, 300 Ark. 245, 778 S.W.2d 616 (1989). “An important issue is whether a fair-minded jury could have reasonably fixed the award at the challenged amount.” Luedemann, supra (citing Smith, supra).

In the present case, a fair-minded jury could have reasonably fixed the award at $1,600. Obviously, the jury accepted Jackson’s theory of the case, and declined to award Depew damages for any of his surgery-related medical bills. As more fully discussed in the prior point, there was substantial evidence from which the jury could have decided that the surgery, and therefore the resulting pain and loss of mobility, were due to a preexisting condition and not proximately caused by the automobile accident. Thus, a fair-minded jury could have reasonably decided to exclude the surgery-related medical bills from its award. The record reflects that most of the $15,000 in medical bills incurred by Depew related to the surgery. The mere fact that a plaintiff has incurred medical expenses and the defendant has admitted liability does not automatically translate into a damage award equivalent to those expenses. See Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991). Based on the foregoing, we cannot say that the trial court clearly and manifestly abused its discretion in denying Depew’s motion for new trial on the ground that the jury erred in the assessment of the amount of recovery.

Affirmed.

         Depew also quotes from Young to make a number of other points regarding appellate review of the grant of a new trial that have little bearing in the present case. Here we are not concerned with the grant of a new trial. The same can be said for Depew’s assertion that when a new trial has been granted, it is “more difficult” to show an abuse of discretion on appellate review because the opposing party will have another opportunity to prevail. See, e.g., Diamond State Towing Co., Inc. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996); Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995).


text:
    Patricia (Langhard) SANDERSON v. Olen D. HARRIS
    97-423
    957 S.W.2d 685
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Office of Child Support Enforcement, by: William F Cavenaugh, for appellant.

      Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., for appellee.
   Annabelle Clinton Imber, Justice.

At issue in this case is whether the general ten-year statute of limitations for actions on judgments applies to actions to collect support arrearages payable through the registry of the court, which become final judgments as they accrue pursuant to Ark. Code Ann. § 9-14-234(b) (Supp. 1995). The trial court concluded that the ten-year statute of limitations did not apply, and barred the appellant’s action to obtain income withholding from the obligor’s employer following the twenty-third birthdays of the two children involved. We affirm the trial court’s ruling.

An August 27, 1987 judgment entered in Nevada County Chancery Court case number 4897-2 recited that on March 5, 1985, Olen Dale Harris was ordered to pay $15 weekly child support in two separate cases, chancery case number 4897-2 and county case number CC-82-5. The trial court assumed jurisdiction over CC-82-5, “merging” it with 4897-2 because the parties in both cases were the same. Since the entry of the 1985 order, the trial court found that $3,520 in total arrearage had accrued — $1,760 with respect to the minor child Amanda (date of birth February 23, 1972), and $1,760 as to the minor child Matthew (date of birth December 1, 1969). The trial court reduced this amount to judgment and ordered Harris to pay $10 weekly in each case, for a total of $20 weekly, towards satisfying this judgment. The trial court additionally found that the circumstances of the parties had changed and that following August 28, 1987, Harris would be obligated to pay $30 weekly in support in each case, for a total of $60 weekly. All support payments were ordered paid through the registry of the court. Patricia Harris, the mother of the children, agreed that Elizabeth Durham, apparently Matthew’s grandmother, would be entitled to receive the support payments as to Matthew.

On April 28, 1988, Patricia Sanderson (formerly Harris) petitioned the trial court for Harris to appear and show cause, alleging that he had failed to pay child support accruing since August 28, 1987, and that he had failed to pay on the judgment rendered against him on August 28, 1987. On October 5, 1988, the trial court entered an order finding Harris in contempt and $5,560 in arrears. The record then shows various notices of income withholding filed against two of Harris’s purported employers. A December 31, 1992 notice served on Dwayne Lee Logging shows $30 weekly withholding on a $2060 amount past due in case number 4897-2. This is followed by two notices served on Smackover Motors, Inc., on May 31, 1996. One shows $30 weekly withholding on a $1940 amount past due in CH48972, while the other reflects $30 weekly withholding on a $5570 amount past due in CH-4897.

On June 24, 1996, Harris petitioned the trial court in case number 4897 to enter an order relieving him and his employer, Smackover Motors, Inc., from paying additional support, claiming that the children involved in the proceeding had already turned twenty-three and that the limitations period had run. OCSE filed an answer and counterclaim in case number 4897-2. In its answer, OCSE clarified that the August 27, 1987 order merged 4897-2, involving Patricia Sanderson, and CC-82-5, involving Elizabeth Durham, into case number 4897-2. Under this order, both children were provided for, with $30 weekly going to Elizabeth Durham for Matthew and $30 weekly going to Patricia Sanderson for Amanda. While conceding that both children had reached the age of majority, OCSE argued that Ark. Code Ann. §§ 9-14-235 (Supp. 1995) and 9-14-236 (Supp. 1995) entitled it to collect the child-support payments, “which are in arrears from the initial order.” OCSE also counterclaimed on the $60 weekly support provided for in the August 27, 1987 order, alleging that Harris was $2,580 in arrears as of July 31, 1996.

A “Stipulation of Transcript” reflects that the trial court held a hearing on September 26, 1996, where Harris argued that since the children were older than twenty-three, the limitations period found in Ark. Code Ann. § 9-14-236 barred any attempt at collection. OCSE responded that the accrued arrearages “should be considered as final judgments” pursuant to Ark. Code Ann. § 9-14-234(b)-(c) (Supp. 1995). Following the submission of briefs, the trial court entered an order on October 30, 1996, granting Harris’s petition to terminate given “that actions to enforce child support are barred by a statute of limitations which runs five years after the eighteenth birthday of the child.” Sanderson appeals from this order.

For her sole point on appeal, Sanderson argues that the general ten-year hmitations period for actions on judgments, Ark. Code Ann. § 16-56-114 (1987), applies to accrued support arrearages under Ark. Code Ann. § 9-14-234, which provides that accrued support installments payable through the registry of the court become final judgments. This issue was decidedly resolved in a recent case involving the same obligor, Cole v. Harris, 330 Ark. 420, 953 S.W.2d 586 (1997). In Cole we determined that the enactment of Act 1057 of 1987, codified at Ark. Code Ann. § 9-14-234 and providing for the finality of accrued installments, was done to ensure state qualification for future federal funding, and was not accompanied by any legislative expression to revive the general ten-year limitations period. Cole, supra. Indeed, by repealing the former ten-year limitations period for support arrearages formerly provided for by Act 525 of 1989, see 1991 Ark. Acts 870 §§ 1-2 (codified at Ark. Code Ann. §§ 9-14-105 and 9-14-236), the General Assembly had “made clear its intention that a ten-year statute of limitations should not apply to actions for child-support arrearages.” Cole, supra. Thus, the specific limitations provision found in Ark. Code Ann. § 9-14-236 governed the accrued arrearages, and the appellant’s action to collect arrearages more than five years after the child’s eighteenth birthday was barred. Cole, supra.

We disagree with Sanderson’s contention that the General Assembly intended that the limitations period found in Ark. Code Ann. §9-14-236 apply only to arrearages not paid through the registry of the court. Such a distinction would leave the limitations period found in Ark. Code Ann. § 9-14-236 with practically no application. Notably, all orders requiring payments for child support are required to direct that payments be made through the registry of the court, subject to the trial court’s discretion in determining the best interests of the parties. Ark. Code Ann. § 9-12-312(d) (Supp. 1995). Given that almost all support obligations are ordered payable through the registry of the court, numerous practical problems would flow from the application of an individual limitations period to each accrued installment, and it would be difficult to ascertain the precise amount of the “judgment” at a given time. Significantly, the emergency clause to Act 870 provides that “it is in the best interest of the people of the State of Arkansas that child support be collected and enforced in the most expedient manner for all children of this state [.]” (emphasis added).

The present case is essentially indistinguishable from Cole. While support installments payable through the court registry become final judgments as they accrue, see Ark. Code Ann. § 9-14-234, the general ten-year statute of limitations found at Ark. Code Ann. § 16-56-114 does not apply to actions to collect such arrearages. Cole, supra. Instead, the limitations period found at Ark. Code Ann. § 9-14-236(c) governs. Cole, supra. Given that Ark. Code Ann. § 9-14-236(c) controls, we do not reach Sander-son’s contention that purported partial payments tolled the ten-year statute of limitations. See Cole, supra. Because the appellant did not institute withholding on the accrued arrearage until after both children had turned twenty-three, the trial court did not err in granting Harris’s petition to terminate the collection of child support.

Affirmed.

       We are cognizant of the fact that, at least at the trial court level, this case involved two distinct claims. One to collect arrearages that had accrued since the August 27, 1987 judgment, and another to collect on the judgment that Sanderson had obtained on August 27, 1987. However, Sanderson’s argument on appeal is limited in scope to the accrued arrearages that became final judgments by operation of law under Ark. Code Ann. § 9-14-234, and contains no mention of the arrearage that had been reduced to judgment on August 27, 1987.

       In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), this court acknowledged the federal concern with state courts that could retroactively modify or nullify past-due obligations, given that some states had “accorded child support orders a lesser stature than other money judgments and have allowed child support awards to be modified retroactively.” Act 1057 of 1987 provides in part, “AN ACT to. . .Provide that Unpaid Child Support Becomes a Judgment; to Prohibit Retroactive Modification Thereof Until Notice is Served on the Other Party. . . .”


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

text:
    Djuane THOMPSON v. STATE of Arkansas
    97-339
    957 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997
    [Petition for rehearing denied January 15, 1998.]

      William R. Simpson, Jr., Public Defender, by: Jeffrey A. Weber, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This is an interlocutory appeal filed by Djuane Thompson from the circuit court’s denial of his motion to transfer his criminal case to juvenile court. We reverse and remand for transfer to the juvenile court.

Djuane Thompson, and two others, were charged as adults in the Pulaski County Circuit Court with aggravated assault, kidnapping, and theft of property. According to the information, a handgun was used in these crimes, and less than $500 was taken from the victim. At the time of the alleged offenses, Thompson was sixteen years of age. Thompson subsequently filed a motion to transfer the case to juvenile court.

During the transfer hearing, Thompson’s mother, Shirley Ford, testified that her son had no prior charges in either juvenile or circuit court, that he attended school regularly, and that he did not “run the streets.” Thompson’s mother explained that during the summer months her son took tutoring classes and mowed yards to earn money. She described Thompson as a “good kid” who was helpful around the house and got along well with his family. Finally, Ford testified that she never suspected that Thompson was involved in gang activity or used drugs or alcohol.

The State did not put on any evidence during the hearing, but instead relied upon the allegations asserted in the information. The prosecutor, however, admitted to the trial court that Thompson did not have a weapon, but his codefendants did. The trial court denied the motion to transfer, and Thompson timely filed this interlocutory appeal. We have jurisdiction pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1995).

On appeal, Thompson alleges that the trial court erred when it denied his motion to transfer. To determine whether a criminal case should be transferred to juvenile court, the trial court must conduct a hearing and consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Supp. 1995). Although the court must consider all of the above factors, it is not required to give them equal weight. Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997); Olgesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997). The trial court’s decision to try the juvenile as an adult must be supported by clear and convincing evidence, Ark. Code Ann. § 9-27-318(f), and we will not reverse the court’s determination unless it is clearly erroneous. Fleetwood, supra; Olgesby, supra.

I. Juvenile’s Participation in the Crime

It is well settled that a juvenile may be tried as an adult solely upon the serious and violent nature of the offense. Sims v. State, 329 Ark. 350, 947 S.W.2d 376 (1997); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). Although the charges against Thompson were serious, he claims on appeal that the trial court’s ruling must be reversed because the prosecutor conceded that violence was employed by the codefendants, but not Thompson. We, however, have previously held that:

[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.

Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996); see also, Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995); Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994). Thus, we find no merit to Thompson’s first argument.

II. Sufficiency of the Information Alone

Next, Thompson contends that the trial court’s ruling must be reversed because there was no evidence presented during the transfer hearing to substantiate the serious and violent nature of the charges contained in the information. We agree with Thompson’s argument, and accordingly we reverse and remand for transfer to the juvenile court.

For several years, we have held that the trial court could rely solely upon the allegations contained in the information to support its finding that a juvenile should be tried as an adult due to the serious and violent nature of the crime. See, e.g., Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). In Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), we began to question the soundness of this rule. Although the sufficiency of the information alone was not an issue in Sanders, we made the following admonition:

This case exemplifies the fact that, under our current interpretations of the code, prosecuting attorneys can file a serious charge against a juvenile in circuit court and do nothing more. It may be that there is no substantial evidence to support the charge, and a transfer may be denied. In this case the trial judge was apparently frustrated by a total lack of proof by the State. He even inquired whether the knife alleged to have been used was a butter knife or a butcher knife, and the State did not know. This type of proceeding was not envisioned by the drafters of the juvenile code, and we did not intend for our interpretations to do away with the need for a meaningful hearing. As a result, we issue a caveat that in juvenile transfer cases tried after this date [October 28, 1996], we will consider anew our interpretation of the juvenile code when the issues are fully developed and briefed.

Id. (emphasis added).

Less than six months later, the appellant in Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), accepted our invitation in Sanders to reevaluate our interpretation of the juvenile code by arguing that his conviction should be reversed because the trial court based its denial of his motion to transfer solely upon the allegations contained in the information. The record of Humphrey’s case, however, revealed that the allegations contained in the information were substantiated by two witnesses who testified during the transfer hearing about the serious and violent nature of the crimes. Id. Hence, we did not reach the issue.

A few months later, we announced once again that if the proper case was presented, we would reconsider the issue of whether a court could base its decision on a motion to transfer solely upon the allegations contained in the information. Ponder v. State, 330 Ark. 43, 953 S.W.2d 555 (1997) (Glaze, J., concurring). We find that this case presents the proper opportunity to consider this issue because there was no evidence to substantiate the allegations contained in the information, and the hearing was held after October 28, 1996, as required by Sanders.

The plain and unambiguous language of the transfer statute declares that:

Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

Ark. Code Ann. § 9-27-318(d) (emphasis added). If the State can merely rest upon the allegations in the information that the crime was violent and serious, there is no need to have such a hearing. In fact, the hearing in this case was far from “meaningful” as stated in Sanders.

Hence, we hold that from the date of this opinion forward, there must be some evidence to substantiate the serious and violent nature of the charges contained in the information. Accordingly, all prior decisions inconsistent with this opinion are hereby overruled. Furthermore, we reverse the trial court’s denial of Thompson’s motion to transfer and remand for transfer to the juvenile court. The dissenting and concurring opinions debate which party bears the burden of proof. We, however, refuse to address the issue at this time because it was not raised by either party.

Reversed and remanded for orders consistent with this opinion.

Newbern, J., concurring.

Corbin and Brown, JJ., concurring in part and dissenting in part.

David Newbern, Justice,

concurring. The majority holds

that the State must produce “some evidence to substantiate the serious and violent nature of the charges contained in the information.” That evidence relates to the first of the three factors on which proof is required in a “meaningful” juvenile transfer hearing according to Ark. Code Ann. § 9-27-318(e) (Supp. 1995). “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.” Ark. Code Ann. § 9 — 27—318(f) (Supp. 1995). By requiring that “clear and convincing evidence that a juvenile should be tried as an adult,” the General Assembly has obviously placed the burden of proof on the State. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991) (Newbern, J., dissenting.) In the Walker case, the opposite conclusion was reached.

The majority now says the State must produce “some evidence” but refuses to recognize the error made in the Walker decision or to tackle again the burden of proof issue. That leaves the trial courts wondering who must produce the “clear and convincing evidence” of the factors supporting trial of a juvenile as an adult. We should hold that, although the juvenile may be the moving party, the statute clearly places the burden of proof on the State. Contrary to the concurring and dissenting opinion of Justice Brown in this case, the State would not be asked to “prove a negative.” Rather, the statute requires “clear and convincing evidence that a juvenile should be tried as an adult,” and that cannot be properly characterized as a negative proposition.

The majority opinion purports to be concerned about a “meaningful hearing.” Any hearing, meaningful or otherwise, in an adversary system of justice must proceed on the basis that one party or the other has the burden of proof with respect to the issue at hand. Although the parties may not have used the term “burden of proof” in their arguments, that is what this case is about. We should not duck the issue, and we should not create a hybrid, unclear situation that we or the General Assembly will have to undo later.

Robert L. Brown, Justice,

concurring in part; dissenting in part. Since our decision in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991), we have cited the principle that a criminal information may suffice as proof of the seriousness and violence of a charge in some nineteen cases. Now, after almost seven years of experience under the Walker holding, this court has determined that the prosecutor must do more than simply rely on the criminal information to establish seriousness and violence. I am amenable to requiring the prosecutor to offer some proof of the crime itself to meet the seriousness-and-violence criterion. Indeed, in Walker v. State, supra, we said that it was desirable, even preferable, for the prosecutor to present evidence at the hearing in addition to the charge itself.

What satisfies the requirement of “some proof” is not answered in the majority opinion. Evidence of a shooting or death should be enough to corroborate the criminal information on the seriousness and violent nature of the crime. More often than not, the investigating law-enforcement officer could establish that element. Robberies, assaults, and batteries might require the testimony of the victim, absent an agreement to permit hearsay testimony by the investigating officer. In this regard, I remain convinced that the Rules of Evidence should apply to juvenile-transfer hearings. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997)(Brown and Imber, JJ., concurring).

I disagree with the concurring opinion of Justice Newbern, however, that the State should have the full burden of proof in juvenile-transfer cases. Admittedly, these hearings present something of a hybrid situation, with both parties having some obligation to offer proof. It would be unreasonable, though, to hold that a juvenile who has been charged in circuit court could simply move to transfer an adult criminal charge to juvenile court and then sit back and force the State to prove a negative, that is, why the matter should not be transferred. It is the juvenile who seeks to change the status quo, and under such circumstances, he or she should have the burden of going forward with the proof.

The better course, in my opinion, was set in Walker v. State, supra, when we said that the juvenile has the burden of going forward with proof to show that the criteria are met. More precisely, the juvenile should have the burden of justifying a transfer based on his or her prospects for rehabilitation within the juvenile system, a showing that the current offense does not evidence a repetitive pattern, and perhaps even proof that the offense was not sufficiently serious and violent to warrant a circuit court trial. The prosecutor, however, must also offer some evidence of the seriousness and violence associated with the crime, if the matter is to remain in circuit court, since the circuit court must make that decision based on clear and convincing evidence. And that evidence, with today’s holding, must be more than the criminal information. Without such evidence by the prosecutor, a transfer to juvenile court becomes automatic. Thus, both parties are required to offer some proof.

Finally, I disagree with the majority when it holds that the charges against Djuane Thompson in circuit court should be transferred to juvenile court. The prosecutor undoubtedly relied on our line of cases in offering only the criminal information as proof of seriousness and violence in the instant case. With today’s decision, we are changing our caselaw, after citing the principle that a criminal information is sufficient to meet the seriousness- and-violence factor in nineteen cases. I would remand this matter for a juvenile-transfer hearing to be held forthwith, in light of today’s decision, bearing in mind that Thompson turns eighteen on February 28, 1998. Should a hearing not be conducted before that date in sufficient time for the juvenile court to assume jurisdiction over Thompson in the event of a favorable decision to transfer, then I agree that the matter should be automatically transferred.

Corbin, J., joins.

        Jones v. State, 326 Ark. 681, 933 S.W.2d 387 (1996); Carrol v. State, 326 Ark. 602, 932 S.W.2d 339 (1996); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996); Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996); Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996); McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995); Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995); Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994); Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994); Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991).


author: Ray Thornton, Justice.

text:
    CITY OF LITTLE ROCK v. PULASKI COUNTY CIRCUIT COURT
    97-480
    957 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Thomas M. Carpenter, Little Rock City Att’y, and Marshall L. Nash, Asst. City Att’y, for petitioner.

      Winston Bryant, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen., for respondent.
   Ray Thornton, Justice.

This petition for a writ of prohibition was brought by the City of Little Rock to prohibit the Pulaski County Circuit Court from considering an appeal from the Little Rock Municipal Court and from enforcing an order with respect to that appeal, because the notice of appeal was untimely. From the abstract and record provided to us by the City, we are unable to tell when the appeal was perfected. We deny the petition because the abstract is flagrantly deficient and the record is incomplete.

The judgment of the municipal court, the docket entries relating thereto, and the notice of appeal from that order are not reflected in the abstract presented to us for review. We will not belabor the insufficiency of the materials, but note that while some proceedings in the municipal court are described in the abstract, those proceedings are not reflected in the record before this court. In short, we have no clear record of exactly what took place and when.

The standard for a writ of prohibition is well settled. Such a writ is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). In deciding whether the writ will lie, we confine our review to the pleadings. Id. Here, the record does not contain the necessary pleadings to determine whether the circuit court had jurisdiction.

A petitioner bears the burden of producing a fair and accurate record and abstract that establish an entitlement to a writ. See Ark. Sup. Ct. R. 4-2 & 6-1; Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994); State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994); Oaklawn Jockey Club v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983). An ambiguous record, such as the one presented in the instant case, cannot satisfy the petitioner’s burden. Davis v. State, supra.

The record and abstract provided by the petitioner do not comply with Ark. Sup. Ct. R. 4-2. We deem them flagrantly deficient, and deny the petition.


author: Per Curiam.

text:
    Larry KEMP v. STATE of Arkansas
    CR 97-932
    956 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Appellant, pro se.
    No response.
   Per Curiam.

Larry Kemp was convicted of being a felon in possession of a firearm. Mr. Kemp sought postconviction relief pursuant to Ark. R. Crim. P. 37.1 which allows “[a] petitioner in custody under a sentence of a circuit court” to seek release from custody, a new trial, or modification of sentence upon a showing of one or more grounds listed in the Rule.

Mr. Kemp petitioned the Pope Circuit Court relief pursuant to the rule. The petition was denied. He has appealed from that decision. The State moves to dismiss the appeal on the ground that, although Mr. Kemp’s sentence included a fine, it did not include confinement so he is not a person “in custody.” The argument is that the Circuit Court was thus without jurisdiction to proceed pursuant to the Rule, and therefore, we lack jurisdiction as well.

Mr. Kemp’s response concedes he has no right to relief under Rule 37.1 unless it can be found that he is in custody. He contends, however, that “in custody” as used in Rule 37.1 should include a person who has been sentenced to a fine. That is so, says Mr. Kemp, because such a person is subject to incarceration in the event the fine is not paid. It is argued further that our Rule is, as we said in Mason v. State, 285 Ark. 484, 687 S.W.2d 849 (1985), modeled upon federal habeas corpus laws in which, Mr. Kemp argues, the concept of “custody” is expanded to include the situation in which a person has been fined.

While we decline to hold that we lack jurisdiction in this matter in view of the State’s failure to cite any law or case that says so, we dismiss the appeal because Mr. Kemp’s argument with respect to whether he is in custody is without merit. In support of his argument Mr. Kemp cites U.S. v. Keane, 852 F.2d 199 (7th Cir. 1988) (coram nobis petition seeking return of fine held improper after custody had ceased), U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970) (habeas corpus petition filed while petitioner was in custody held not moot after his discharge from custody), and Hanson v. Circuit Court of First Judicial Circuit of Illinois, 591 F.2d 404 (7th Cir. 1979) (habeas corpus held not available to a person subjected to a “fine-only” sentence). None of the cases is in point here.

The appeal is dismissed because Mr. Kemp has failed to demonstrate that he is a person “in custody” as required by Rule 37.1.


text:
    Altricia MUHAMMED v. STATE of Arkansas
    CR 97-1048
    957 S.W.2d 692
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Appellant, pro se.
    No response.
   Per Curiam.

On June 28, 1996, judgment was entered in the Circuit Court of Clark County reflecting that Altricia Muhammed had been found guilty by a jury of possession of a controlled substance and sentenced to 120 months’ imprisonment. Her retained attorney, Gregory Bryant, filed a timely notice of appeal from the judgment on July 8, 1996. Counsel subsequently sought in the trial court to have Ms. Muhammed declared indigent, or, in the alternative, to be relieved as counsel. The trial court declined to declare Muhammed indigent. The court also declined to relieve counsel, correctly noting that any motion to be relieved which Bryant desired to file must be addressed to this court because a notice of appeal had been filed in the case.

Mr. Bryant did not proceed here to be relieved, and the appeal has gone unperfected. Ms. Muhammed now seeks by pro se motion to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk rather than a motion for belated appeal and grant it.

The direct appeal of a judgment of conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to permit an appeal when the defendant’s counsel has failed to follow mandatory appellate rules. Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). Rule 16 of the Rules of Appellate Procedure— Criminal provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Once the notice of appeal was filed, attorney Bryant was obligated to perfect the appeal. If he desired to ask to be relieved of responsibility for the appeal or to have his client declared indigent, his course of action was an appropriate motion filed here with a partial record. In no event may counsel simply abandon an appeal, and Bryant remains responsible for representing the appellant. See Atkins v. State, 308 Ark. 675, 827 S.W.2d 636 (1992).

Attorney Bryant is directed to appear before this court on Thursday, January 8, 1998, at 9 a.m. and show cause why he should not be held in contempt for failure to perfect this appeal.

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

Motion for rule on clerk granted.

Arnold, C.J., not participating.


text:
    Wilbert MULDREW v. STATE of Arkansas
    CR 97-561
    957 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on November 13, 1997. Muldrew v. State, 330 Ark. 609, 954 S.W.2d 272 (1997). Attorney David Mark Gunter, counsel for appellant Wilbert Muldrew, was ordered to appear before this court on December 4, 1997, to show cause why he should not be held in contempt for his failure to file Muldrew’s brief in a timely manner. Mr. Gunter appeared on that date, entered a plea of guilty to the contempt citation, and accepted full reponsibility for failing to file Muldrew’s brief.

Based on the foregoing, we hold that Mr. Gunter is in contempt for failing to file Muldrew’s brief in a timely manner. We fine him $250.00 and will allow him to file a belated brief in this matter. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Steve CRISWELL v. Melyssa HOLLIDAY
    97-1327
    957 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Diana M. Maulding, for appellant.
    No response.
   Per Curiam.

Steve Criswell, by his attorney, has filed a motion for a rule on the clerk.

The Pulaski County Chancery Court entered an order on July 3, 1997, regarding appellant’s visitation with the minor child. Pursuant to Ark. R. Civ. P. 60, appellant filed a motion to set aside that order on July 8, 1997. Before the trial court ruled upon appellant’s motion to set aside, he filed a first notice of appeal on August 6, 1997, and an amended first notice of appeal on August 7, 1997. The first notice of appeal and amended first notice of appeal reflected that appellant was appealing from the July 3, 1997 order.

On August 26, 1997, the Pulaski County Chancery Court denied appellant’s motion to set aside the July 3, 1997 order. Appellant filed a second notice of appeal on August 29, 1997, which reflected that he was appealing from the August 26, 1997 order and the July 3, 1997 order.

Pursuant to Ark. R. App. P. — Civ. 4(a), a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. The deadline for filing a notice of appeal is not extended by the filing of a motion under Ark. R. Civ. P. 60. See, Ark. R. App. P. — Civ. 4(b). Therefore, the first notice of appeal and first amended notice of appeal, filed by appellant on August 6 and August 7, 1997, were not timely with regard to an appeal from the July 3, 1997 order.

However, the second notice of appeal filed by appellant on August 29, 1997, was timely with regard to an appeal from the August 26, 1997 order. Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988). Notwithstanding the fact that (a) appellant has not filed a timely appeal from the July 3, 1997 order and (b) the July 3, 1997 order is not an “intermediate order” under Ark. R. App. P. — Civ. 2(b), his timely appeal from the August 26, 1997 order will necessarily involve a review of the trial court’s references to the July 3, 1997 order, in the August 26, 1997 order.

The motion for rule on the clerk is, therefore, granted with regard to appellant’s appeal from the August 26, 1997 order.


text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    955 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997
   Per Curiam.

On October 9, 1997, the Honorable Steele Hays was appointed the master to conduct the hearing in this contempt proceeding. It is necessary that a substitute master be appointed, and we hereby appoint the Honorable Robert Dudley to succeed Justice Hays as the master in this matter. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Nila J. Keels should be held in contempt.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Lawrence BROWN v. DEPARTMENT OF HUMAN SERVICES
    97-479
    956 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Law Offices of Treeca J. Dyer, P.A., by: Treeca J. Dyer, for appellant.

      Joel P. Landreneau, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellants, Lawrence Brown and Charles Murdock, appeal an order of the Pulaski County Circuit Court upholding the decision of the Office of Hearing and Appeals of the Arkansas Department of Human Services that there was some credible evidence to support allegations that they had abused a juvenile at a youth facility in North Little Rock. Finding no merit to the appellants’ three arguments for reversal, we affirm the trial court’s judgment.

The appellants first argue that the trial court erred in rejecting their argument that their due process rights were violated because OHA did not complete its hearing process within ninety days from the date that it received their request for a hearing. Under the Arkansas Administrative Procedures Act, particularly Ark. Code Arm. § 12-12-512 (Repl. 1995), the administrative hearing process must be completed within ninety days from the date of receipt of the request for a hearing. Appellants filed their request for a hearing on January 31, 1996, but OHA did not conclude the hearing until May 21, 1996.

We need not decide whether this delay prejudiced the appellants’ due process rights because they did not present this argument to OHA. It is well-settled that we do not set aside an administrative determination on a ground not presented to the agency. Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985). The trial court correctly rejected the appellants’ argument for this reason.

Next, the appellants assert that the trial court erred in rejecting their argument that the continuance of the hearing from May 2, 1996, to May 21, 1996, on DHS’s motion so that it could secure the presence of its key witness in the case, violated their due process rights. We cannot reach this argument because the record reveals that no objection was made below to the granting of a continuance. Because the appellants failed to present this argument at the administrative hearing, we do not consider it on appeal. Riverways Home Care v. Ark. Health Serv. Comm’n, 309 Ark. 452, 831 S.W.2d 611 (1992).

Finally, the appellants contend that because the trial court found that there was some credible evidence of abuse, it erroneously felt compelled to reject their due process arguments, as it reasoned that it “must affirm the DHS decision.” Arkansas Code Annotated § 25-12-212(h) (Repl. 1996) provides in part that the trial court “may” reverse or modify an agency’s decision if it determines that the substantial rights of the petitioner have been prejudiced due to an agency’s decision that is in violation of constitutional or statutory provisions. Thus, under our statute, even if we were to agree that the appellants’ due process rights were violated, it would have been within the trial court’s discretion to reverse and remand their case. When reviewing the trial court’s order, it appears to us that he made separate findings with respect to the substantive evidence of abuse and the appellants’ due process claims. In any event, we cannot say that the trial court erred.

For the foregoing reasons, we affirm the trial court’s decision.