text:
    IN THE MATTER OF The Estate of Jerome MORGAN, An Incompetent
    92-280
    833 S.W.2d 776
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Wilson & Associates, by: J.L. Wilson, for appellant.

      Richard B. Dalgren, for appellee.
   Steele Hays, Justice.

This is an appeal from probate court, where the Arkansas Department of Human Services sought reimbursement for medicaid payments made to Jerome Morgan. Morgan counterclaimed in tort against another branch of the state, the University of Arkansas at Pine Bluff. The trial court ordered the medicare reimbursement to DHS and dismissed the counterclaim for lack of subject matter jurisdiction. On appeal, Morgan challenges both the reimbursement order and the dismissal of the counterclaim as improper. We find no merit in appellant’s argument.

Jerome Morgan, appellant, was a student athelete at UAPB and sustained a spinal cord injury in a football game on September 21, 1985. Morgan was left a quadriplegic. During treatment Morgan received medicaid benefits from the State of Arkansas of approximately $34,000. One of the conditions of receiving those payments was a right to reimbursement by the state, where there was a third party liability, from any settlement or recovery by the medicaid recipient from that third party. Arkansas Code Ann. § 20-77-302 (1987).

In 1986 Morgan was made a ward of the state and a guardian was appointed in Probate Court of Phillips County, Arkansas, to handle Morgan’s affairs and estate. Suits stemming from the 1985 injury were filed in Morgan’s behalf, and damage awards resulting from those suits were deposited under a supervised account under the directives of the county probate court.

In May 1991, the Arkansas Department of Human Services, Third Party Liability Unit, filed a petition asserting a claim against Morgan’s estate pursuant to Ark. Code Ann. § 20-77-301 et seq. (1987) for reimbursement of medicaid expenses paid in the amount of $33,932.73. Morgan answered and also counterclaimed, asserting a negligence action against the University of Arkansas at Pine Bluff as a result of his injury. DHS responded with a motion to dismiss on the ground that probate court had no subject matter jurisdiction of tort claims and that an identical claim was pending before the State Claims Commission, the only forum with jurisdiction to hear the claim.

A hearing on the matter was held and the trial court issued an order dismissing Morgan’s counterclaim because it found it had no subject matter jurisdiction; it further found that DHS had an absolute statutory lien on Morgan’s estate and ordered the requested payment. From that judgment, Morgan brings this appeal.

Appellant first argues that because a probate court is not devoid of discretion, the trial court erred in determining appellee had an absolute lien. Our statutes, Ark. Code Ann. § 20-77-301 et seq., clearly provide that when a medicaid recipient receives an award or settlement from a third party which is liable for the injuries covered by the medicaid payments, the DHS has an absolute right to those proceeds for the amount of the medicaid payments made. It was on this basis that the trial court awarded reimbursement to DHS from the settlement received by appellant.

Appellant does not dispute that these statutes purport to create an absolute lien as a matter of law. Rather, he argues that in spite of that legislation, the power of the probate court over a ward’s estate is exclusive, and the probate court has the power to deny reimbursement if it finds it would not be in the best interest of the ward. Appellant relies on the case of In the Matter of Kimberly Porter, 298 Ark. 124, 765 S.W.2d 944 (1989).

But Porter does not support the argument. Porter does state that probate court has exclusive jurisdiction to determine how the funds of a ward should be used, but that was in response to whether a circuit court had any jurisdiction in the matter, and the funds in question were not derived from third party liability covered by statute, as in this case.

The constitutional provision on probate jurisdiction reads:

In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.

Ark. Const. art. 7, § 34.

We interpreted the above provision recently in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989), and said:

The italicized words [or may be hereafter prescribed by law] distinguish the jurisdiction of the probate courts from that of the county courts in the critical sense that the jurisdiction which may be vested in the probate courts can be altered by act of the legislature.

Clearly, the court below was proceeding properly in following the dictates of the statute.

Appellant also contends that the trial court erred in refusing to transfer his counterclaim to circuit court. The probate court had found it was without jurisdiction and dismissed the counterclaim. The trial court was right.

The constitution provides that probate courts shall have “exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates. . . .” Ark. Const. art. 7, § 34.

In a recent case we ruled on this question and held that probate court had no jurisdiction over torts. In Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987), the appellant filed a contingent tort claim against an estate for damages as a result of sexual abuse, with the merits of the case to be tried by the probate court. The probate court ruled that the statute of limitation had run on the claim and dismissed the case. We reversed because we found that the probate court did not have jurisdiction to rule in the tort action. We said:

In Arkansas the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). Nothing is said about the trial of tort cases in the probate court in the constitutional provision. See Ark. Const. art. 7, § 34, as amended as by Ark. Const. amend. 24. The decision on the tort claim was without the jurisdiction of the probate court, and, therefore, void. See Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984); Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931).

It should be clear from Eddleman that not only is probate court without jurisdiction of tort claims, but that once the trial court has made that determination, it has no authority to proceed further or to take any other action in the case. This is the general rule. See 20 Am. Jur. 2d Courts § 97 (1965); Burbridge Foundation, Inc. v. Gardner, 496 F.2d 326 (8th Cir. 1974).

Appellant does not dispute the trial court’s finding on this point, but argues that the trial court should have transferred the case rather than dismiss it. Appellant has cited no authority however, as to why the case should be transferred rather than dismissed. Nor has appellant demonstrated or even suggested what prejudice he suffered by having the case dismissed rather than transferred.

While we have recognized that a transfer be granted over dismissal when prejudice results to a party upon a dismissal, see Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988), appellant has failed to demonstrate any prejudice resulting from the dismissal. The burden is on appellant to demonstrate prejudical error.

Appellant raises an additional point. During the proceedings below, and prior to any final order on the disposition of the claims of either appellee or appellant, appellee filed a notice of appeal from an interlocutory order by the trial court entered on July 18, 1991. The order directed that certain distributions be made from Morgan’s estate, and also noted there were sufficient funds in the estate to pay the claim of DHS, should that become the ruling. On July 19, 1991, DHS filed a notice of appeal from that order, evidently interpreting the order as constituting a denial of its contention that the funds be held in escrow pending a hearing. The appeal was rendered moot, however, as on the same day, July 19, 1991, the trial court entered an amended order of distribution which differed only in the fact that the amount of funds claimed by DHS were to be held in escrow.

Appellant argues that because of the notice of appeal filed by appellee on July 19, 1991, the trial court lost jurisdiction to make any further orders, hence, the final order now before us on appeal was void. Appellant relies on holdings such as Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958), where we said:

[A]fter notice of appeal is filed the trial court retains jurisdiction of the case until the record ... is filed with this Court and the appeal is docketed in this Court. . . .

While we agree with that statement of the law, it is inapplicable here because even though a notice of appeal was filed, there is nothing to show the appeal was ever docketed in this court. Furthermore, the July 18, 1991 order, not being final, was not appealable. Ark. R. App. P. 2.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    WESTARK SPECIALTIES INC. v. The STOUFFER FAMILY LTD. PARTNERSHIP, d/b/a Automotive Components, Inc.
    92-84
    836 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Warner & Smith, by: Joel D. Johnson, for appellant.

      Stephen M. Sharum, and William J. Kropp, III, for appellees.
   David Newbern, Justice.

This is a rather complicated negligence case in which the principal question is whether evidence should have been admitted about a previous event in which the defendant, now the appellant, Westark Specialties, Inc. (Westark), paid a claim similar to the one made here by the appellee, The Stouffer Family LTD. Partnership, d/b/a Automotive Components, Inc. (Automotive). Our holding is that Automotive did not comply with its duty to produce evidence of the similarity of the claims, and thus the case must be reversed and remanded. Other issues which may arise upon retrial will also be addressed.

Westark owns a warehouse complex in Fort Smith which was built early in this century and purchased by Westark in April, 1988. It is equipped with an aging sprinkler system for fire prevention. The system operates on a dry line principle. The portions of sprinkler pipe located inside the warehouse buildings contain air holding back the water until the system is triggered and air released. The pipes then fill with water and the sprinkler heads spray. Routine maintenance of the system included periodic pressure checks to insure pressure was adequate and that the pipes inside the warehouses were drained of water.

Automotive leased several buildings encompassing 119,000 square feet in the complex. The lease required Westark to maintain the sprinkler system. It also provided that Westark was not liable for any damages due to malfunctions unless Automotive gave written notice of a need for repair. Finally, the lease provided that Automotive was to carry insurance on the warehouse contents with a waiver of subrogation clause sufficient to protect Westark from loss.

Sometime between December 24 and 26 of 1989, during a period of extremely cold weather, water trapped in the sprinkler pipes froze in the warehouse areas leased by Automotive. The pipes cracked, and more than 3,000,000 gallons of water sprayed on Automotive’s inventory, resulting in damage from rust and freezing.

Automotive sued Westark alleging negligence and breach of contract for not maintaining the sprinkler system. Westark answered that Automotive failed to cooperate in maintaining the system, and that Automotive breached the lease agreement by failing to maintain insurance on the contents. Prior to trial, Automotive withdrew the breach of contract claim and elected to proceed on negligence.

The jury returned a verdict for Automotive for $700,000. Westark filed a motion for new trial which was denied.

1. The prior incident

Westark defended on two bases. First, it argued that Automotive stacked its inventory from floor to ceiling and refused to move it to allow Westark employees to maintain the sprinkler system properly. Second, Westark contended Automotive breached the lease by failing to have content insurance.

After Automotive rested and the defense began its case David Ashby, Controller and Secretary-Treasurer of Westark, testified. On cross-examination by Automotive’s counsel, questions about an earlier water loss incident involving another of Westark’s tenants, a furniture company owned by a Mr. Stanley, were asked. Counsel for Westark objected on relevancy grounds, and the objection was sustained. A bench conference ensued at which Automotive argued that the earlier loss was to a tenant who had the same lease and the same kind of loss, and thus Automotive was entitled to show that Westark had paid a similar claim. Counsel for Automotive stated, “they are contending that they should not be obligated because of this content but this is a similar event that happened just like this that their Company paid. We are entitled to show that to the jury that in one case they paid it.” Westark’s counsel argued that there were different facts and circumstances in the other incident to which Automotive responded that Westark had the same duty to maintain the system. The Court ruled that the evidence was highly relevant but was too prejudicial to come in. Automotive then asked to make a record of proffered testimony, and the jury was excused.

Counsel for Automotive then asked Ashby about the other incident. Ashby testified that the incident had occurred in 1988 when a defective sprinkler system valve triggered but stated he did not know whether the leases were similar in requiring the tenant to have insurance on the contents to cover any loss. Westark again objected to Ashby continuing to testify on the other incident, and the Court again sustained saying “unless you can show something else I’m going to sustain the objection.” Counsel for Automotive then stated “I guess I can subpoena Mr. Stanley in rebuttal and have him bring his lease.” Counsel for Automotive asked the Court if he would permit him to put Mr. Stanley on the stand if he was called and the Court stated “I am inclined if we are going on the theory that this clause takes you out and you can show the lease [s] are identical then I would be inclined to show that at least from some reason they have either waived that — I think if you can show that the leases are identical at this point I’d be inclined to let him show that or ask him that.”

After further discussion the Court stated “as far as this witness is concerned I’m going to preclude you from going into it Mr. Sharum [counsel for Automotive]. You get your witness here that knows about it.” Mr. Sharum replied “[w]e will subpoena and have him bring all of his leases.”

After Mr. Sharum finished questioning Ashby without further reference to the prior incident the Court called counsel to the bench and stated:

I think that I have created some confusion. I do not intend to let Steve [Sharum] bring this rebuttal witness unless this witness — you ask him under identical circumstances if he hasn’t paid and if he denies it or says that he doesn’t know I think the identical circumstances — I’m assuming that he is going to say since the lease is different he will say nothing and perhaps no. I think you are going to at least broach this enough that you can rebut it. You don’t have anything now to be in the nature of a rebuttal. And I think it is something that you will need to bring up so you can rebut it — but you have to be careful.

Over continuing objections from Westark, Ashby was questioned about the prior occurrence and the fact that Westark wound up paying the claim. Automotive did not ask Ashby if the circumstances of the prior payment were identical and did not call the other tenant or present his leases.

At the close of all evidence Westark moved for a mistrial on the ground that Automotive had been allowed to introduce evidence regarding the prior incident without showing its similarity. Westark also sought a ruling prohibiting Automotive from referring to the other incident in closing argument. Both motions were denied by the Court stating:

[T]here was an in camera hearing in which the witness testified before the Court permitted the witness to testify before the jury, and in that hearing the witness indicated that there was damage to the sprinkler system prior to that. He indicated that he did not know whether or not he had the same contract. Counsel for the defendant failed to cross examine as the Court expected on that issue to show the jury that the contracts were not the same, and it was not developed, but that’s why that was permitted. The Court felt it was relevant and at least based on the theory that the defendants were claiming that they were not relying on the provision about the Lease on the insurance requirement. That’s why it was let in.

The foregoing shows that Automotive made no effort to bring in the prior occurrence during its case in chief but sought to bring it in during the defense case or to at least create an allegation for rebuttal. Automotive argues in its brief and oral presentation that this evidence was relevant and should have been before the jury to rebut the comparative negligence assertions of Westark.

The general rule with respect to admissibility of evidence of similar occurrences is that it is admissible only upon a showing that the events arose out of the same or substantially similar circumstances, and the burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Fraser v. Harp’s Food Stores, Inc., 290 Ark. 186, 718 S.W.2d 92 (1986); Carter v. Missouri Pacific Railroad Co., 284 Ark. 278, 681 S.W.2d 314 (1984); Houston General Ins. Co. v. Arkla Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980); Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976); Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 681 (1971). The burden on Automotive was to show the similarity in the events, and that burden did not shift to Westark, contrary to the implication of the final ruling.

The ultimate purpose of the evidence was to show that Westark had paid for water damage to a tenant’s inventory. From that evidence the jury was left to draw the negative inference that Westark had waived the content insurance requirement for that tenant. Absent presentation of that lease and testimony concerning the basis for the prior payment there is no way of reaching that conclusion without rampant speculation. The fact that there was a valve malfunction may have been due to a faulty valve alone and may only peripherally implicate maintenance. It could also have occurred after notice and a failure to act, thereby triggering Westark’s obligation under the contract.

As there was no showing by Automotive that the occurrences were similar, admission of the testimony enabled the jury to conclude Westark’s refusal to pay in the case now before us was unjustified. It may well have been that Westark’s payment in the prior case was a part of their obligation under the lease, or it could have been pursuant to a waiver of the requirement as postulated by Automotive, but it was Automotive’s burden to prove the facts.

2. Election of remedies

Westark filed a pre-trial motion requesting the Court to require Automotive to elect between breach of contract and negligence. Automotive chose to proceed on the negligence cause of action. Westark objected and argued that the only “remedy” available to Automotive was a breach of contract cause of action. The argument is without merit as the doctrine of election of remedies applies to remedies, not to causes to action. Henderson Methodist Church v. Sewer Improvement Dist., No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987); Butler Bros. v. Hames, 193 Ark. 77, 97 S.W.2d 622 (1936). Quoting from Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W.2d 392 (1921), we wrote in the Henderson case:

[W]ithin the general doctrine of election of remedies, . . . it is the duty of the party, where he has two remedies, one of which is limited in scope and the other general in scope, to adopt, in the first instance, the remedy which will give complete relief; otherwise he is bound by his election to pursue the limited remedy.

This is simply a prohibition against more than one recovery on inconsistent remedies and not a requirement that a plaintiff choose only one cause of action. There is no such requirement. See Ark. R. Civ. P. 8(e)(2) and 18(a).

Westark also argues that our decision in Quinn Companies, Inc., v. Herring-Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989), requires that a plaintiff not transform a breach of contract action into a tort action. That only partially states the holding of the case. We stated, “if the facts warrant, a party to a contract may sue on an independent tort claim. But a plaintiff may not transform a breach of contract action into a tort claim by alleging the breach was motivated by malice. The breach itself simply is not a tort.”

The distinguishing characteristic which transforms a breach into a tort was defined in L.L. Cole & Sons, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984) where we said:

Generally, a breach of contract is not treated as a tort it it consists merely of a failure to act (nonfeasance) as distinguishable from an affirmatively wrongful act (misfeasance). [citations omitted] The courts, however, have tended to extend the tort liability for misfeasance whenever the misconduct involves a foreseeable, unreasonable risk of harm to the plaintiff’s interests.

Westark argues in a parenthetical fashion that there were no allegations of foreseeability or unreasonable risk of harm and that Automotive did not prove foreseeability. There is no requirement that a party plead foreseeability in a complaint, and water damage from a poorly maintained sprinkler system is obviously foreseeable. The jury clearly found the evidence sufficient to support the showing of breach of the duty to maintain the system. There is no error in the case proceeding on a tort theory.

3. Inconsistent verdict

The two employees of Westark responsible for the day to day maintenance of the sprinkler system were sued along with the corporation. The law on this issue is clear:

If the employer’s liability is attributable solely to the employee’s negligence, a verdict in favor of the employee exonerates the employer as well. But if there is independent actionable negligence on the part of the employer then he may be held liable even though the employee is found to have been free of fault. Thus the question is whether the evidence establishes a cause of action against the [employer] . . . without regard to any negligence of its [employee]. . . . C.R.I. & P. Railroad Co. v. Davis, Adm’r, 239 Ark. 1059, 397 S.W.2d 360 (1965).

In this case the expert witness for Automotive testified that the water trapped in the pipes was 100% the fault of the sagging of the warehouse roof, not any failure of maintenance by the employees of Westark. Nothing suggests that it was the obligation of the employees to replace the roof of the warehouse in connection with maintaining the system. There is evidence supporting an independent cause of action against Westark.

4. Subsequent remedial measures

Westark argues that the fact the sprinkler system was turned off, and remained off after the damage to the inventory, was evidence of a subsequent remedial measure to be excluded. A.R.E. Rule 407. Automotive responded that the evidence was offered to explain that certain tests could not be conducted due to the shut-off. Automotive also responded that testimony could be admissible to suggest that, if the system had been shut-off as a precautionary measure before the cold weather hit, the amount of damage would have been limited.

The shut-off of the system was not a remedial measure in the sense of Rule 407. It is clear from the testimony that the system was ruptured in several places and could not be turned back on. The system obviously was still broken and the situation had not been “remedied” at all.

5. Offer of compromise

Shortly after the incident, Automotive wrote to Westark and offered to settle the matter without litigation for the sum of $145,000. Automotive’s letter stated that the sum did not include all the damages and was submitted for the purpose of a quick settlement without litigation. The letter was proffered by Westark to show bias and prejudice in the enlargement of the damages, but the Court excluded it as an offer of compromise pursuant to A.R.E. 408. The letter clearly stated there was no final damage estimate and that it was an offer predicated on not going to court. It is an offer of compromise.

Westark relies on Enterprise Sales Co. Inc. v. Barham, 270 Ark. 544, 605 S.W.2d 458 (1980), in which the appellant sought to show an offer to purchase property they had damaged for a price greater than the estimated value of the land in the plaintiffs complaint. The testimony was excluded at trial but this Court thought the testimony would be admissible as impeachment in view of the plaintiffs assertion that the property he purchased was not worth the amount of the offer. We said the question would not have been permissible if it had been for the purpose of showing the value of the property rather than discrediting the plaintiffs assertions. The Enterprise Sales case supports the decision of the Trial Court in this case because the offer was submitted to show the amount of damages differed from the original estimate. There is nothing impeaching about the letter. It clearly stated undiscovered damages would be greater than those sought. It shows nothing more than a partial estimate of damages and has no probative value on the question of bias. The Court was correct in excluding the evidence.

Reversed and remanded.

Brown, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Brian Keith BANGS v. STATE of Arkansas
    CR 91-283
    835 S.W.2d 294
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Kinney & Snowden, by: William G. Snowden, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Brian Keith Bangs, appeals from the revocation of his suspended sentence. He makes three arguments on appeal, one of which requires our interpretation of Ark. Code Ann. § 5-4-104 (Supp. 1991). Our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. 29 (1) (c). We find no merit to appellant’s arguments and affirm.

On June 6, 1989, appellant pleaded guilty to theft of property, a Class C felony. He was ordered to pay the victims restitution and was sentenced to the Arkansas Department of Correction for three years, and an additional sentence of three years was suspended subject to specific conditions. Two of the conditions of suspension are pertinent to this appeal; the first condition is that appellant report regularly to a probation officer and the second is that appellant not commit any offenses punishable by imprisonment.

After appellant paid approximately one-half of the restitution, the trial court modified appellant’s sentence to one and one-half years in the Arkansas Department of Correction with an additional four and one-half years suspended. The trial court entered the modified judgment on September 27, 1989, and incorporated by reference the previously entered conditions of suspension.

In June 1991, appellant was arrested for kidnapping and rape. He was held in the Stone County Jail and escaped from there on June 30, 1991. On August 20, 1991, the trial court held a hearing on the state’s petition to revoke appellant’s suspension and entered a judgment finding that appellant had violated the terms of his suspended sentence by committing the offense of escape, revoking his suspended sentence, and sentencing appellant to eight years in the Arkansas Department of Correction. It is from this judgment that appellant appeals.

Appellant’s first argument is that the trial court erred in sentencing him to suspension and also requiring that he report regularly to a probation officer. He claims that by requiring him to report to a probation officer as a condition of his suspended sentence, the trial court imposed what amounted to de facto probation. Thus, appellant claims that pursuant to Ark. Code Ann. § 5-4-304 (1987), the trial court imposed an illegal sentence by sentencing him to probation following a term of imprisonment. Appellant’s claim is that the de facto probation rendered his sentence void ab inito and therefore not subject to revocation by the trial court.

Appellee first responds to this argument with two theories why we should not reach the merits of appellant’s claim. First, appellee argues appellant’s abstract is flagrantly deficient such that we should affirm pursuant to Ark. Sup. Ct. R. 9. It is true that neither appellant’s abstract nor his supplemental abstract includes the conditions of his suspension, a material part of the record which is necessary to an understanding of the questions presented to us for decision. See Ark. Sup. Ct. R. 9(d). However, appellee cured the deficiency by including the pertinent conditions of suspension in its supplemental abstract. See Ark. Sup. Ct. R. 9(e)(1). Second, appellee responds by asserting that appellant did not preserve this argument for appellate review because he did not raise an objection in the trial court concerning the imposition of the condition that he report to a probation officer. It is true that no objection was made below. However, we treat allegations of void or illegal sentences similar to problems of subject matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). A sentence is void when the trial court lacks authority to impose it. Id. Here, appellant asserts that the trial court was without authority to impose a sentence of imprisonment followed by probation. Therefore, we address the merits of appellant’s argument.

Section 5-4-104(a) provides that a trial court’s disposition of a defendant is to be conducted in accordance with Chapter 4 of the Arkansas Criminal Code. Section 5-4-104(e) (3) provides that a trial court may sentence the defendant to a term of imprisonment and suspend imposition of a sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by section 5-4-304.

The distinction between probation and suspension is oneof supervision. Ark. Code Ann. § 5-4-101 (1987) defines both probation and suspension as release without pronouncement of sentence. However, probation is defined as “release without pronouncement of sentence but subject to the supervision of a probation officer” and suspension is defined as “release without pronouncement of sentence and without supervision.”

In an effort to explain section 5-4-104’s simultaneous authorization of suspension following imprisonment and prohibition of probation following imprisonment, the official commentary points out that suspension following imprisonment was authorized because of its widespread use by the Arkansas trial bench. The commentary also explains that probation was prohibited from following imprisonment because supervision by both the court and the Board of Pardons and Paroles is a needless duplication of effort conducive to jurisdictional disputes. Thus, section 5-4-104(e) (3) provides that if a trial court desires to sentence a defendant to both probation and incarceration, it may do so, but only in accordance with section 5-4-304. The incarceration authorized by section 5-4-304 is a period of “shock” confinement in a facility other than the Department of Correction to enhance the effectiveness of a subsequent period of probation or suspension. This shock confinement may be served intermittently but is limited to no longer than ninety days.

Thus, as appellee concedes in its brief, our statutes do not authorize a trial court to impose a sentence of imprisonment in the Arkansas Department of Correction followed by probation. The issue then is whether the trial court did just that — sentence appellant to imprisonment followed by probation. Appellant argues the trial court’s requirement that appellant report to a probation officer transformed the suspension into probation. He argues that such a transformation occurred and resulted in his de facto probation.

We have never recognized any doctrine or concept of de facto probation, and appellant has not cited us to any authority, in our jurisdiction or elsewhere, recognizing such a concept. We are not inclined to approve or disapprove such a doctrine in the absence of authority or convincing argument on the subject. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellee responds to the merits of appellant’s argument by asserting that, should we determine appellant was illegally sentenced to probation following imprisonment, he was not prejudiced because the trial court based the revocation on appellant’s violation of the condition that he not commit any offenses punishable by imprisonment. Had the trial court based the revocation on the grounds that appellant violated the condition requiring him to report to a probation officer, the state concedes appellant would have been prejudiced.

Although we do not reach a determination that appellant was illegally sentenced to a term of imprisonment followed by probation, we agree with appellee’s argument that appellant was not prejudiced by the trial court’s actions in this case. No matter how one views the sentence that was imposed in this case, there is no overlooking the fact that the trial court revoked appellant’s suspension because he violated the condition prohibiting him from committing any offenses punishable by imprisonment, and not because he violated the condition requiring him to report to a probation officer. Thus, the prejudice suffered by appellant, the revocation of his suspension, was a result of the escape, and not an allegedly illegally imposed probation.

Even if we were to determine that appellant was illegally sentenced to a term of imprisonment followed by probation, the remedy for an illegal sentence is not dismissal of all related proceedings in the trial court and release from imprisonment, as appellant requests. Neither is the remedy dismissal of the state’s petition to revoke. The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985) (citing In re Bonner, 151 U.S. 242 (1893)); see Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991). In addition, Ark. Code Ann. § 16-90-111 (Supp. 1991) specifically states that illegal sentences may be corrected at any time.

Thus, had appellant presented this argument to the trial court, the trial court could have easily corrected the alleged illegality in the original sentence. It is true that appellant was not required to present his argument to the trial court in order to receive appellate review. However, on appeal, we cannot dismiss the petition to revoke and thereby allow appellant to benefit from his failure to seek the appropriate remedy by petitioning the trial court for correction pursuant to section 16-90-111. Where an error has nothing to do with the issue of guilt or innocence and relates only to punishment, it may be corrected in lieu of reversing and remanding. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980). Therefore, we affirm the trial court’s revocation based on the escape and modify the conditions so that appellant is no longer required to report to a probation officer.

Appellant’s second argument on appeal is that the trial court erred in denying his motion to dismiss at the revocation hearing. The basis of this second point on appeal is that the trial court was not authorized to sentence appellant to a term of imprisonment followed by suspension. Such a sentence, argues appellant, is prohibited by the cases of Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), and Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Appellant cites Hunter for the proposition that a trial court is without authority to modify a sentence in a criminal case once it is put into execution. Appellant also argues that the sentence he received is a multiple sentence and Easley prohibits multiple sentences in criminal cases.

Appellee correctly points out that the sentence appellant received, a term of imprisonment in the Department of Correction followed by an additional suspended sentence, is expressly permitted by section 5-4-104(e) (3). See Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988). That statute is very clear and unambiguous. We recognize the existence of prior case law interpreting prior sentencing statutes that are not applicable to this case. Hunter and Easley, the two cases relied upon by appellant, are two such cases. They were written prior to the effective date of section 5-4-104(e)(3). In addition, since those cases, section 16-90-111 was enacted giving trial courts express authority to correct an illegal sentence at any time.

The sentence appellant received was within the applicable time limitations for a Class C felony and was expressly authorized by section 5-4-104(e) (3). Appellant was sentenced legally. There was no error in the denial of appellant’s motion to dismiss. In addition, we wish to reiterate our previous statement that dismissal is not a remedy for an illegal or invalid sentence.

Appellant’s third argument on appeal is that the trial court erred in applying Ark. Code Ann. § 5-4-309(d) (1987) when it revoked his suspension. Section 5-4-309(d) provides that “[i]f the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.” Specifically, appellant asserts the trial court erred in finding that he “inexcusably” failed to comply with the conditions of his suspension. Appellant’s theory is that he was badly influenced by other inmates of the Stone County Jail and fell victim to the excitement of their escape, so he joined them. Appellant claims this is the only reason he attempted the escape, that he made a “dumb mistake,” and therefore it was an excusable violation of the condition of his suspension that he not commit a punishable offense.

Appellant’s argument is without merit. It is well settled that we will not overturn a decision in the trial court to grant a petition to revoke unless it is clearly against the preponderance of the evidence. Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). The petition to revoke appellant’s suspension alleged that he had violated the conditions of his suspension by committing third degree battery, rape, kidnapping, and escape from jail. At the hearing to revoke, evidence was presented that while housed in the Stone County Jail, appellant and other inmates escaped. Appellant participated in the escape by wrestling with an officer and holding him while another inmate attempted to handcuff the officer. There was no evidence of any legitimate excuse by appellant for his participation in the escape.

We do not accept appellant’s theory that he was overwhelmed by the bad influences of the other inmates. If we were to accept such a theory as an excuse for violation of the conditions of suspension and probation, we would very likely be excusing most criminal behavior. This we will not do. The preponderance of the evidence at the revocation hearing indicates appellant committed the crime of escape. We affirm the trial court’s decision to revoke his suspension because of this conduct which violated a condition of his suspension.

Affirmed as modified.


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    Oliver Eugene KELLY v. Gwendolyn L. KELLY
    91-233
    835 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992
    [Rehearing denied September 14, 1992.]

      Joe O’Bryan, for appellant.

      Hubert W. Alexander, for appellee.
   Donald L. Corbin, Justice.

Appellant Oliver E. Kelly attempts to bring this appeal from two orders directing him to execute a quitclaim deed to property at Fairfield Bay to appellee Gwendolyn L. Kelly. We do not address the merits of appellant’s arguments because appellant failed to properly perfect his appeal under Ark. R. App. P. 4.

The first order at issue was entered on November 29, 1990. This order found that appellant had failed to execute a deed to property which was previously awarded to appellee. The order directed appellant to execute a quitclaim deed to appellee or appear on a later date to show cause why he should not be held in contempt or why a commissioner’s deed should not be entered by the court. On December 27, 1990, appellant filed a motion to set aside the November 29 order. On December 28, 1990, appellant filed a notice of appeal from the November 29 order and “any further order entered on December 28, 1990.” Following a hearing on December 28, 1990, the chancellor ordered appellant to execute a quitclaim deed and the chancellor awarded attorney fees to appellee. This order was entered on January 8, 1991. On January 17, 1991, appellant filed a motion to set, aside the order entered on January 8. Appellant never filed a subsequent notice of appeal.

The appeal from the November 29, 1990 order is ineffective because that order was not a final, appealable order. Ark. R. App. P. 2. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). To be final, an order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). See also Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987).

Obviously, the November 29 order was not a final, appealable order. The order provided for a later hearing at which appellant could appear and show cause why a commissioner’s deed should not be entered. This provision prevented the November 29 order from concluding the parties’ rights to the property in controversy. In fact, the court held two hearings subsequent to the November 29 order, and the court did not enter its final order until January 8, 1991.

The appeal from the order entered on January 8 is ineffective because appellant’s notice of appeal was filed prematurely. Ark. R. App. P. 4(a) provides that “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order [.]” [Emphasis added.] Subsection (e) of Rule 4 provides that “ [a] judgment, decree or order is entered within the meaning of this rule when it is filed with the clerk of the court in which the claim was tried.” In this case, appellant filed his notice of appeal on December 28, 1990; however, the final order from which appellant appeals was not entered until January 8, 1991. We cannot accept appellant’s appeal because our procedural rules, in particular ARCP Rule 58 and the amendments to Ark. R. App. P. 4, clearly indicate that an appeal filed prior to entry of final judgment is ineffective.

ARCP Rule 58 provides in part:

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2.

Administrative Order No. 2 provides for the act of filing orders and judgments in the docket book. In Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), we relied on Rule 58 to hold that a decree that had been announced from the bench did not become effective until the date of filing. “The purpose of Rule 58 was to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. The rule tells clearly what that point is.” Id. at 498, 769 S.W.2d at 14. Reporter’s Note 4 to Rule 58 explains the rule’s significance for appeal purposes:

This rule provides that a judgment or decree shall not be effective unless and until it is entered pursuant to [Administrative Order No. 2]. Thus for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition.

Appellant argues that his appeal is timely because we have previously given force to notices of appeal filed prior to entry of judgment yet subsequent to rendition of judgment. See Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984); Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981); Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). However, appellant’s reliance on the afore-cited cases is misplaced since these cases were decided prior to the 1988 amendments to Ark. R. App. P. 4(c) and (d).

Subsections (c) and (d) of Rule 4 govern the timeliness of appeals from judgments challenged by post-trial motions. Subsection (c) now explicitly provides that a notice of appeal is ineffective if it is filed prior to the date of disposition of the post-trial motion, or, if no order is entered, prior to the date that the motion is deemed denied. In order to maintain consistency with 4(c)’s timeliness requirement for an effective appeal, we are compelled to overrule those cases in which we deemed premature appeals to be filed on the date judgment was entered. We also overrule our more recent opinion in State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991) to the extent that it is inconsistent with this opinion.

Rule 4 now requires strict compliance in order for an appeal to be effective. The purpose of the amendments to Rule 4 was to simplify appellate practice and eliminate confusion as to the time for filing the notice of appeal. Surely, it would defeat the purpose of the amendments to Rule 4 if we were to accept appeals filed prior to entry of final judgment yet dismiss appeals filed prior to disposition of a post-trial motion. As appellant filed his notice of appeal prior to the entry of final judgment, we dismiss the appeal.


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    Johnny Ray SMITH v. STATE of Arkansas
    CR 91-233
    837 S.W.2d 279
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Potter and Veon, by: Thomas A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Johnny Ray Smith, appeals a judgment of the Miller Circuit Court convicting him of the first degree murder of Robert Lollis and sentencing him to life imprisonment in the Arkansas Department of Correction. He assigns four points of error in his jury trial. We find no merit to his arguments and affirm the judgment of conviction.

The last of the four arguments raised in appellant’s brief is that the trial court erred in denying his motion for directed verdict based on insufficient evidence. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Based on the holding in Burks v. United States, 437 U.S. 1 (1978), that the double jeopardy clause precludes a second trial when a conviction in a prior trial was reversed solely for lack of evidence, we have determined that preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Therefore, we consider appellant’s last argument, his challenge to the sufficiency of the evidence, prior to considering his other arguments concerning trial errors.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, we need only ascertain that evidence which is most favorable to appellee and, if there is substantial evidence to support the verdict, we affirm. Lukach, 310 Ark. 119, 835 S.W.2d 852; Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

We recite the evidence presented at trial in the foregoing light. Matthew Nard, a paid informant for the Miller County Sheriffs Office, testified that approximately a week and a half before the murder occurred, he had seen appellant with a .45 automatic similar to the one used in the murder of Lollis.

Pearline White, an acquaintance of appellant’s, testified that on April 27, 1990, appellant, who is also known as “Boo,” John Paries, who is also known as “Little John,” and the victim, Robert Lollis, gave her and her sister a ride to a nightclub. She stated that Paries was driving the car, that appellant was on the passenger side, and that Lollis was in the back seat.

On April 28, 1990, at approximately 1:00 a.m., Officer Charles Wise, of the Miller County Sheriff’s Department, was dispatched to Highway 296 south of Highway 67 in Miller County. Officer Wise found Lollis lying on the left side of the road and concluded there had been a traffic accident. Officer Wise called an ambulance and then began asking Lollis who had done this to him. Lollis finally answered, “Little John done it.”

Officer Willie Huff, of the Texarkana Police Department, testified that the vehicle involved in the murder belonged to Clifford Gill, appellant’s uncle. Officer Huff located the vehicle at Gill’s apartment at about 5:30 a.m. on April 28, 1990. Officer Huff shined his flashlight in the window of the car and saw blood stains on the back panel and inside window. Officer Huff also saw a .45 shell casing in the car. Gill told Officer Huff that John Paries had disposed of the weapon near the Dunbar School in Texarkana, Texas. Officer Huff and Officer Blondell recovered a .45 semi-automatic pistol wrapped in a blue bandanna inside a trash dumpster at the Dunbar School.

The physical evidence presented at trial revealed that Lollis was shot with a .45 semi-automatic pistol and run over by a vehicle. The medical examiner testified that Lollis suffered three types of injuries. Lollis had been beaten on the back of the head with the butt of a pistol; he also suffered at least six gunshot wounds to his body and had a broken right thigh bone. In addition to these three main injuries, Lollis had scrape wounds, abrasions, and bruises on his body and his teeth had been loosened and knocked down. All of these wounds were said to be consistent with being hit by a moving vehicle.

The medical examiner testified the cause of death was a combination of these wounds but that, in his opinion, the most damaging wound was the gunshot wound to the right side of Lollis’ body which passed through the diaphragm and liver before exiting Lollis’ body on the left side. The medical examiner also testified that some of the bullets came from the right side, some came from the back, and some came from the front.

Berwin Monroe, a firearms, tool marks, and explosives analyst for the State Crime Laboratory, positively identified the expended shell casings found at the scene of the crime as being fired from the .45 semi-automatic which was recovered in the trash dumpster at the Dunbar School.

Bill Sillivan, crime scene investigator for the Texarkana, Arkansas Department of Public Safety, performed a blood stain investigation of the suspect vehicle. Sillivan determined there was blood present in almost all areas of the interior of the car as well as the exterior. He testified there was blood on the undercarriage between the right front wheel and the right rear wheel. He also testified there was a tremendous amount of blood that had been wiped up in the back seat. Sillivan also found two bullets and three bullet holes in the left rear seat. He testified that the bullets that made the holes in the seat all came from the right front side of the vehicle.

Margaret Grissom, a former girlfriend of appellant’s, testified that she saw appellant on the night of the murder. She also stated that when she visited appellant in jail, he told her he was at the crime scene when Lollis was murdered.

John Paries, III, also knows as “Little John,” pleaded guilty to Lollis’ murder. He testified at appellant’s trial that he was originally from Los Angeles, California, and a member of the 74 Hoover Crip Gang. Paries stated there were other gangs in California and that the various gangs had shootings and killings. Evidence of his membership in the 74 Hoover Crip Gang is tatooed on his right forearm and was shown to the jury. Paries stated that he and a friend, who is also a Crip, came to Texarkana to sell drugs and that he had the occasion to meet both appellant and the victim. He testified that neither appellant nor the victim were members of a gang, but that appellant sometimes held himself out to be a member of the gang in which Paries was a member. Paries testified that Frank Utsey offered him $ 1,000.00 to set Lollis up with some cocaine. When asked to explain this statement, Paries stated that the set up would be to discourage Lollis from testifying against Utsey in a trial in another city. Paries stated he did not accept the offer and told Lollis to “watch his back.” Paries also testified that a few weeks prior to Lollis’ murder, Paries witnessed a conversation between appellant and Utsey during which money was exchanged. On cross-examination, Paries testified that he knew Lollis’ shooting was supposed to happen but that he was not involved in the hit on Lollis and did not get any money for it. He explained his participation in the murder as a result of being high on beer and marijuana.

Paries explained the murder as follows. Paries was driving appellant’s uncle’s car, appellant was in the front passenger seat, and Lollis was directly behind Paries. They were driving, smoking weed, and drinking beer. When they were out on a rural highway looking for a particular nightclub, appellant began shooting Lollis while all three were still in the car. Paries stopped the car, Lollis and appellant jumped out and appellant began chasing Lollis. Paries then remembers beating Lollis over the head with the pistol, which did not have any shells in the receiver at that time. Paries testified he fled to California to escape the police.

Jerry Lee Hamilton, a cellmate of appellant’s at the Bi-State Justice Building and a friend of the victim, testified that he and appellant had discussed Lollis’ murder. Hamilton related their conversation as follows. Appellant was on the passenger side of the vehicle when he turned around and shot Lollis two or three times. Appellant said he could not shoot any more and jumped out of the car. Appellant then watched Paries and Lollis wrestle. Hamilton stated that he had no doubt appellant told him he was in the passenger seat and fired the first shots. Hamilton also related that appellant was going to change his story to reflect that appellant was driving the car and knew nothing about the murder at all.

In addition to making three statements to law enforcement officials which were admitted into evidence, appellant testified at trial. He testified that he was driving the car when they picked up Pearline White and her sister and that he was still driving when the murder occurred in a rural area. He testified that the murder occurred as follows. As the car approached a curve, Paries turned around and began shooting. It scared appellant and he jumped out of the car while it was still moving. Paries put the car in park, chased Lollis, and continued shooting him as Lollis exited the car. Paries then beat Lollis with the handle of the gun and returned to the car. Appellant tried to run away but Paries chased him and told him to get in the car. Paries threatened appellant by stating that either he or his “home boys” would kill appellant if appellant said anything about the murder. Appellant then drove the two of them back to town.

With respect to the issue of drug and gang activity, appellant stated that Paries was a member of the 74 Hoover Crip Gang and that Paries sold drugs. Appellant also stated that Paries gave him a hat with “74HCG” on it and that although he was not a member of the Crips, he wore the hat.

Appellant’s challenge to the sufficiency of the evidence has two prongs. First, he argues that the evidence presented was insufficient to sustain a conviction because it did not meet the requirement set forth in Ark. Code Ann. § 16-89-111(d) (1987) that a confession of a defendant, unless made in open court, be accompanied by other proof that the offense was committed. Second, appellant argues the evidence is insufficient because it fails to meet the requirements of section 16-89-111(e) that a felony conviction based on the testimony of an accomplice be corroborated by other evidence connecting the defendant with the commission of the offense.

We have stated that the evidence required to corroborate an appellant’s confession is evidence that the offense was committed. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). The state presented the foregoing testimonies of law enforcement officials, lay witnesses, and medical experts, establishing that Lollis died from gunshot wounds, a beating, and being run over by a moving vehicle. The foregoing evidence is sufficient to establish the Lollis’ murder was committed. Moreover, even though the foregoing evidence is circumstantial, it is substantial evidence and supports the jury’s verdict of guilt. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992).

The evidence required to corroborate the accomplice testimony of Paries must be sufficient standing alone to establish the commission of the offense and to connect appellant with it. David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). We have just established that the state proved the commission of the offense. The presence of an accused in the proximity of a crime, opportunity, and an association with a person involved in a crime in a manner suggestive of joint participation are relevant factors in determining the connection of an accomplice with a crime. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). As for the connection of appellant to the murder in question, the state offered the testimonies of Pearline White and Margaret Grissom who had seen appellant with Paries and Lollis hours before the murder. In addition, Grissom stated that appellant told her he was present when the murder occurred. Moreover, the state offered the testimony of Jerry Hamilton who stated there was no doubt in his mind that appellant told him appellant was in the passenger seat and fired the first shots into Lollis. All of the physical evidence presented by the state is consistent with Paries’ and Hamilton’s testimonies.

There is no distinction between the criminal responsibility of a principal and an accomplice. Wilson v. State, 301 Ark. 342, 783 S.W.2d 852 (1990). The jury was instructed on accomplice liability. The sufficiency of the corroborating evidence will frequently be a question of fact for the jury rather than a question of law for the court. See McClure v. State, 214 Ark. 159, 215 S.W.2d 524 (1948). Thus, on appeal, our inquiry is whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient; in making this determination, we need only consider testimony lending support to the verdict. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).

It is not clear whether the jury convicted appellant as a principal or as an accomplice. However, it is irrelevant as the criminal responsibility is the same and as there is substantial evidence to support both a determination that Paries’ testimony was sufficiently corroborated and that appellant was guilty as a principal. In light of this overwhelming substantial evidence, the trial court did not err in denying appellant’s request for a directed verdict of acquittal.

As his next assignment of error, appellant claims the trial court erred in allowing the state to amend the information the day before trial. On June 11, 1990, the state filed an information charging appellant with murder in the first degree. The information alleged that appellant, with the premeditated and deliberated purpose of causing the death of Lollis, caused the death of Lollis. On April 22, 1991, the date appellant’s trial was scheduled to begin, the state amended the information. The amended information still charged appellant with first degree murder, however it eliminated the requirement of premeditation and deliberation. The amended information alleged that appellant, with the purpose of causing Lollis’ death, caused Lollis’ death. Appellant objected to the amendment and argued, as he argues on appeal, that the amendment reduced the state’s burden of proof and that to proceed under the amended information would be improper and unfair.

Appellant’s argument is without merit. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991), the homicide statute in effect at. the time of Lollis’ murder, states that a person commits first degree murder if he purposefully causes the death of another. Thus, the mens rea for first degree murder at the time of Lollis’ murder was no longer premeditation and deliberation, and the state was never required to prove that appellant acted with such a mental state. Appellant does not dispute that section 5-10-102(a) (2) was in effect at the time of the murder.

We have held that the state may amend an information after the jury has been sworn but before the case has been submitted to it, so long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). As the state points out, the amendment in this case did not change the nature or degree of the offense. Both the original information and the amended information charged appellant with first degree murder. The amendment changed only the mens rea to conform to the homicide statute in effect at the time the crime was committed.

Furthermore, appellant made a strategic decision not to request a continuance so that he would not toll the time for speedy trial purposes. We have previously held that we will not presume prejudice when an appellant fails to move for a continuance after he is put on notice that the state plans to amend the information. Mitchell v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985). In this case, there is no indication that appellant knew of the intended amendment. However, when appellant objected to the amendment, the trial court asked appellant if he wanted a continuance and appellant responded in the negative. As the amendment did not change the nature or degree of the offense and as there was no prejudice demonstrated because of the failure to request a continuance, we cannot say the trial court erred in allowing the amendment.

As his next point of error, appellant asserts the trial court abused its discretion in restricting appellant’s cross-examination of Jerry Hamilton. Specifically, appellant asserts the trial court violated his right to confrontation by not allowing appellant’s counsel to question Hamilton about an alleged thirty-year plea agreement in an unrelated case offered in exchange for his testimony against appellant. There was some confusion between the two prosecutors as to whether or not the offer to Hamilton of the thirty-year agreement, which was extended prior to the state’s knowledge of Hamilton’s possible testimony against appellant, had been withdrawn by the state. However, there was no dispute, by either the state or the defense, that the withdrawal of the offer had not been communicated to Hamilton. Based on the foregoing information revealed in a bench conference, the trial court concluded the thirty-year plea agreement no longer existed and the defense could therefore not question Hamilton on that particular agreement. However, the trial court went on to suggest that appellant would be allowed to ask Hamilton if he presently had a plea bargain agreement with the state. Appellant chose not to ask such a question, but did ask approximately eight questions concerning Hamilton’s hope that his testimony be exchanged for leniency in his pending sentence.

In Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990), we recently reviewed the issue of a trial court’s restrictions on cross-examination. There we stated that the right to cross-examine the state’s witnesses is not unlimited and that trial courts have wide discretion in imposing reasonable limits on cross-examination. In order to determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, we must look to the record as a whole and resolve whether the restrictions imposed created a substantial danger of prejudice to appellant. Id. We have done so, and in light of the questions that were asked regarding leniency, we fail to see any prejudice to appellant.

As his final argument, appellant asserts the jury was prejudiced by the state’s repeated attempts to elicit from witnesses irrelevant evidence of drug and gang activity. Appellant relies on Sharron v. State, 262 Ark. 320, 565 S.W.2d 438 (1977), where we reversed and remanded for a new trial when the prosecutor withdrew six of eight questions that received sustaining objections.

Specifically, appellant complains of three occasions where such evidence was elicited. Two occasions occurred during Officer Huff’s testimony. On the first occasion, Officer Huff was asked how he was aware of who appellant and John Paries were. The officer then answered that he knew them through his investigations in drug trafficking in Texarkana. Appellant’s objection to the foregoing answer was sustained and the jury was instructed to disregard the testimony. On the second occasion, Officer Huff was allowed to testify, over appellant’s objection, about his specialized training in cult or gang activity in California and Texarkana. The third occasion appellant complains of occurred during John Paries’ testimony. Paries was asked if he ever knew appellant to deal drugs, appellant objected, and the trial court sustained the objection.

Appellant has not convinced us that the questions he objected to were improper. In Snell v. State, 290 Ark. 503, 516-17, 721 S.W.2d 628, 636 (1986), cert. denied, 484 U.S. 872 (1987), and 490 U.S. 1075 (1989), we held that testimony about Snell’s involvement with the organization entitled “The Covenant, The Sword, and the Arm of the Lord” was admissible under A.R.E. Rule 404 “to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. This will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, or his intention.” While the particular facts of Snell and the organizational connection involved there are arguably distinguishable from the facts of present case, there can be no doubt that the state is entitled to produce evidence “showing all circumstances which explain the act, show a motive for acting, or illustrate the accused’s state of mind.” Richmond v. State, 302 Ark. 498, 503, 791 S.W.2d 691, 694 (1990). The evidence appellant complains of is relevant to explain the circumstances of the murder and shows both a motive and appellant’s state of mind. Appellant has not demonstrated that any possible prejudice resulting from admission of this evidence substantially outweighs its probative value.

Assuming that we were to conclude that the evidence in question was inadmissible, we are not convinced that the present case rises to the level of Sharron, 262 Ark. 320, 556 S.W.2d 438. Generally, the error caused by admission of improper evidence is cured by sustaining an objection thereto, followed by an admonition to the jury to disregard it. Id. Here, appellant complains of only three instances where the questioned evidence arose; the objections to two of those instances were sustained and the jury was admonished once. We cannot conclude that such conduct put the prosecutor on notice that he was asking improper questions sufficient to warrant a new trial. See id. The sustained objections and admonitions to the jury were adequate to correct any error that may have occurred in the questioning.

In support of this final argument, appellant also relies on Dawson v. Delaware, _ U.S __, 112 S. Ct. 1093 (1992), which held that Dawson’s First and Fourteenth Amendment rights were violated by admission of evidence that he belonged to a white racist prison gang, because the evidence had no relevance to the proceedings. Appellant did not produce an abstract showing that he raised the violation of his First and Fourteenth Amendment rights below. We do not address arguments, even constitutional ones, which are raised for the first time on appeal. Collins v. State, 308 Ark. 536, 836 S.W.2d 231 (1992).

Pursuant to Ark. Sup. Ct. R. 11(f), appellee has made certain that all objections decided adversely to appellant have been abstracted. We have determined that no issues of prejudicial error existed.

Affirmed.


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    TRUCK CENTER OF TULSA, INC. v Norman AUTREY, d/b/a Autrey Trucking
    91-352
    836 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Roy & Lambert, by: Robert J. Lambert, Jr., for appellant.

      Jeff Slaton and Esther M. White, for appellee.
   Donald L. Corbin, Justice.

In December of 1986, appellee/cross-appellant Norman Autrey purchased a 1986 Freight-liner truck from appellant/cross-appellee Truck Center of Tulsa, Inc. (Truck Center). Truck Center retained a security interest in the truck pursuant to a retail installment contract and security agreement. This agreement included a choice of law provision, specifying that the contract would be governed by the substantive law of Oklahoma. In early 1988, Autrey defaulted in his payments and Truck Center repossessed the truck. This suit arose out of the events subsequent to the truck’s repossession.

At the time of default, Autrey owed $39,452.91 on his note to Truck Center. Truck Center eventually sold the truck and filed suit against Autrey for a deficiency of $21,452.91. Autrey counterclaimed, alleging that Truck Center was guilty of conversion for selling the truck in a commercially unreasonable manner. Autrey sought compensatory damages and punitive damages for the alleged intentional, wanton, malicious, and fraudulent conduct of Truck Center.

A jury trial was held in Washington County Circuit Court. Truck Center testified that, following repossession of the truck, notice was sent by certified mail to Autrey’s last known address to inform Autrey that the truck would be sold in a private sale on April 14, 1988. Autrey denied receiving such notice.

Troy Mills, Truck Center’s manager, testified that a sale did not “physically take place” on April 14, 1988, but that Truck Center obtained telephone bids on the truck. Mills testified that Truck Center sold the truck for $ 18,000.00 to Arrow Truck Sales, the highest telephone bidder. Following this alleged “telephone sale,” Arrow sent an $18,000.00 check to Truck Center. The next day, Truck Center sent an $18,100.00 check back to Arrow to repurchase the truck. Ultimately, Truck Center sold the truck to Ray Robinson, and Autrey introduced documentation indicating that Robinson paid $39,000.00 for a 1986 freightliner. However, Mills testified that Robinson paid only $18,200.00 for the actual truck, and explained that the $39,000.00 figure represented the price of the truck plus “credits” to purchase necessary parts for the truck.

Autrey introduced by deposition the testimony of Buzz Stanfield, Truck Center’s former sales manager. This deposition testimony included a recorded telephone conversation between Stanfield and Autrey in which Stanfield informed Autrey that Truck Center’s sale to Arrow and subsequent repurchase of the truck was a “set up deal” to establish a deficiency on the part of Autrey.

The jury returned a verdict on interrogatories, finding that the sale of the truck was commercially unreasonable, and that the fair market value of the truck was $28,000.00 at the time of the sale. The jury further found that the actions of Truck Center were willful, wanton, and malicious, and based on this finding, the trial court refused to enter a deficiency judgment for Truck Center. Finally, the jury awarded Autrey $7,000.00 punitive damages, and the court awarded Autrey $664.00 in costs. The court, however, denied Autrey’s request for attorney fees.

Appellant Truck Center raises six arguments for reversal, with Autrey cross-appealing the trial court’s denial of attorney fees. The arguments for reversal are: 1) the trial court erred in denying appellant a deficiency judgment including attorney fees and costs; 2) the trial court erred in allowing the recorded telephone call between Autrey and Buzz Stanfield to be read into the evidence; 3) the trial court erred in ruling that a finding of commercial unreasonableness constitutes conversion as a matter of law; 4) the trial court erred in refusing to instruct the jury that the law allows the creditor substantial flexibility in the disposition of repossessed collateral; 5) the trial court erred in submitting the issue ofpunitive damages to the jury; and 6) the trial court erred in awarding Autrey $664.00 in costs. We find no merit to any of the arguments raised on appeal, with the exception of the costs awarded to Autrey for a court reporter. Accordingly, we reverse the award of costs for the court reporter, and affirm on all other grounds.

Initially, we note that the trial court applied the substantive law of Oklahoma, and the evidentiary and procedural rules of Arkansas. As the parties do not dispute the trial court’s choice of law, we do not address the issue on appeal.

Appellant’s first argument is that the trial court erred in refusing to enter a deficiency judgment including attorney fees and costs against Autrey. The trial court interpreted Oklahoma law as depriving a creditor of the right to a deficiency judgment in cases where the creditor has acted maliciously.

In Beneficial Fin. Co. v. Young, 612 P.2d 1357 (Okla. 1980), the Oklahoma Supreme Court held that a creditor’s noncompliance with the Uniform Commercial Code generally does not deprive the creditor of his right to a deficiency judgment. However, the Oklahoma court expressly limited its holding to cases that do not involve “malice, fraud, or oppression”:

To hold that noncompliance deprived creditors of their right to a deficiency judgment would not only protect the debtor, but it would also penalize the creditor. In light of the fact that the sale of collateral is necessitated by the fault of the debtor, we hold that the punishment of creditors for noncompliance with the provisions of Part 5 of Article 9 would be unjustified, in the absence of malice, fraud, or oppression. [Emphasis added.]

Id. at 1359. The trial court relied on this language to hold that Oklahoma law does deprive a creditor of the right to a deficiency judgment when malice is proven.

Appellant argues that the trial court took out of context the qualifying phrase “in the absence of malice, fraud, or oppression.” According to appellant, Oklahoma law does not deprive a creditor of the right to a deficiency judgment, regardless of the creditor’s conduct. Under appellant’s interpretation of the Young case, the qualified holding does not limit the creditor’s right to a deficiency but allows for the imposition of punitive damages under non-code law in cases involving malice, fraud, or oppression.

We disagree with appellant’s interpretation of Oklahoma law. The afore-quoted language of the Young court appears in the section of the opinion addressing the narrow question of whether a creditor is entitled to a deficiency judgment when the creditor fails to act in a commercially reasonable manner. In this context, the phrase “in the absence of malice, fraud, and oppression” is only relevant as a condition on the creditor’s right to a deficiency. We therefore agree with the trial court that Oklahoma law does not allow recovery of a deficiency in cases involving malice, fraud, or oppression. As the jury in this case found that the actions of Truck Center were willful, wanton, and malicious, we find no error in the trial court’s refusal to grant a deficiency judgment including attorney fees and costs.

Appellant’s second allegation of error concerns the trial court’s admission of a partial transcript of a recorded telephone call between Autrey and Buzz Stanfield, the former general manager of Truck Center. Stanfield was not present at trial, but the trial court found that Stanfield was not amenable to process in Arkansas, and Autrey’s counsel was allowed to read into evidence Stanfield’s previously taken deposition.

During Stanfield’s deposition, Autrey’s counsel questioned Stanfield about the transaction between Truck Center and Arrow Truck Sales involving the repossessed truck. Stanfield was asked several .times whether he told Autrey during a phone conversation that the sale from Truck Center was simply a “wash sale” in which $18,000.00 checks were exchanged. Stanfield repeatedly denied making such statements, and maintained that he had always been under the impression that Truck Center repurchased the truck from Arrow for a price in excess of $18,000.00.

At this point in the deposition, Autrey’s counsel proceeded to play a tape recorded telephone conversation between Stanfield and Autrey. During the conversation, Stanfield informed Autrey that the truck was sold to Arrow “fictitiously,” and that Arrow had sent Stanfield a check for the truck, whereupon Stanfield “turned around and sent them one back for it and bought it back.” Stanfield also admitted in the course of the phone conversation that the transaction with Arrow was “a set-up deal” so that Autrey could be sued for the deficiency. Stanfield prefaced these statements by remarking that he did not “want to get in no goddamn lawsuit,” and Stanfield threatened to deny in court any statements he made to Autrey.

The sole argument raised by appellant regarding Autrey’s deposition testimony concerns the portion of the deposition containing the phone conversation transcript. Appellant argues that the phone conversation was inadmissible hearsay. Appellant also argues that Stanfield’s recorded statements were not admissible for impeachment purposes under A.R.E. Rule 613 because the recorded statements were not inconsistent with Stanfield’s deposition testimony.

ARCP Rule 32 governs the use of depositions in court proceedings. This rule provides in pertinent part:

(a) Use of Depositions. At the trial. . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; . . . or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena [.] [Emphasis added.]

In this case, the trial court prefaced the reading of Mr. Stanfield’s deposition by stating that Mr. Stanfield lived outside the State of Arkansas and was not amenable to subpoena. Appellant does not challenge this finding and, in fact, the record reveals that both parties anticipated that Stanfield’s deposition would be used as evidence at trial. Autrey’s pretrial Motion for Subpoena for Out of State Witnesses explicitly stated that Stanfield’s deposition would be taken “for the purpose of evidence in the trial[.]” The order granting Autrey’s motion also stated that the depositions of the out of state witnesses would be used as evidence at trial. As both parties anticipated that Stanfield’s deposition would be utilized as evidence at trial, we need only to consider whether the portion of the deposition containing the phone conversation transcript was admissible under the Arkansas Rules of Evidence, applied as though Stanfield were present and testifying at trial.

Under A.R.E. Rule 613, a prior inconsistent statement by a witness is admissible for impeachment purposes. While appellant argues that Stanfield’s deposition testimony is not inconsistent with Stanfield’s statements during the phone conversation, our reading of Stanfield’s testimony indicates otherwise.

At Stanfield’s deposition, Stanfield repeatedly denied stating that the sale to Arrow was a “wash sale,” in which the two truck companies merely exchanged checks. However, in the previously recorded phone conversation, Stanfield had unequivocally apprised Autrey that the transaction between Truck Center and Arrow Truck Sales was not a legitimate sale. In fact, Autrey had described the transaction as a “set up deal,” arranged so that Autrey could be sued for a deficiency. While we concede that Stanfield did not use the term “wash sale” in his phone conversation with Autrey, the question posed by Autrey’s counsel defined the term “wash sale” as the mere exchange of checks. This clarification put Stanfield on notice of the term’s definition, and gave Stanfield the opportunity to either explain or deny his prior statements to Autrey.

We have not limited the admission of prior inconsistent statements to those instances in which diametrically opposite assertions have been made. See Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985). Rather, we have adopted Judge Weinstein’s view that a witness’ prior statement is admissible “whenever a reasonable man could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.” Id. at 193, 697 S.W.2d at 116, quoting4 Weinstein’s Evidence ¶ 801 (d) (1) (A) [01]. In this case, a reasonable person could conclude that Stanfield’s deposition testimony contradicted his earlier recorded statements, and we perceive no error in the admission of his prior statements regarding the transaction between Truck Center and Arrow.

Stanfield’s statements were also admissible as substantive evidence under A.R.E. Rule 801(d)(1). This rule provides that a witness’ prior inconsistent statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement. When deposition testimony is utilized at trial pursuant to ARCP Rule 32, subsection (a) of that rule provides that the rules of evidence be applied “as though the witness were then present and testifying.” As we have already determined that Stanfield’s statements during the phone conversation were inconsistent with his deposition testimony, and Stanfield was subject to cross-examination about these statements at the deposition, we find no error in the substantive admission of Stanfield’s prior statements.

Appellant next argues that the trial court erred by refusing to instruct the jury on the elements of conversion. The trial court ruled that under Oklahoma law, a commercially unreasonable sale constitutes a conversion as a matter of law.

We agree with the trial court’s interpretation of Oklahoma law. In Davidson v. First Bank & Trust Co., Yale, 609 P.2d 1259 (Okla. 1976), a creditor bank rightfully repossessed the collateral at issue, yet subsequently failed to proceed in a commercially reasonable manner. The debtor sued for conversion, and the Oklahoma Supreme Court upheld a stipulation of actual damages, and affirmed an award of punitive damages. The court’s reasoning is set out on page 1261 of the opinion:

If repossessed property is sold in a commercially unreasonable manner there is a conversion, the actual damages being the difference between the value of the property and the proceeds of the sale. If there is a conversion, and the actions are malicious or willful, punitive damages may be awarded by the jury under existing statutory and case law. [Emphasis added.]

Id. at 1261. The following statement also appears in the Davidson opinion: “In its brief Bank admits that conversion may be the result of either wrongful repossession or wrongful sale, and we agree.” Id. at 1261.

Based on the explicit language set out in the Davidson opinion, we agree with the trial court that a finding of commercial unreasonableness constitutes conversion as a matter of law under Oklahoma law. Accordingly, we find no error in the trial court’s refusal to instruct the jury on the elements of conversion.

Appellant’s fourth amendment for reversal is that the trial court erred in refusing to instruct the jury that Oklahoma law allows a creditor “substantial flexibility” in the disposition of repossessed collateral. The trial court refused the instruction proffered by appellant, and dealt with the disposition of collateral in Instructions 11 and 13.

Instruction No. 11 informed the jury of the commercial reasonableness limitation on a creditor’s disposition of collateral. This instruction provided as follows:

Sale or other disposition of the 1986 Freightliner may be made at any time and place and on any terms but every aspect of the disposition, including the method, manner, time, place, and terms must be commercially reasonable.

Instruction No. 13 defined the commercially reasonable standard:

As to the issue of whether this sale was conducted in a commercially reasonable manner, the law states that Truck Center of Tulsa, Inc. acts in a commercially reasonable manner when, in the process of disposing of the repossessed collateral, it acts in good faith and in accordance with commonly accepted commercial practices which afford all parties fair treatment.

Instruction No. 13 essentially quotes the standard of commercial reasonableness set out in Wilkerson Motor Co. v. Johnson, 589 P.2d 505 (Okla. 1978). The Oklahoma Supreme Court explained the standard as follows:

Generally, the secured party acts in a commercially reasonable manner when the process of disposing of repossessed security he acts in good faith and in accordance with commonly accepted commercial practices which afford all parties fair treatment.

Id. at 509.

Both the Wilkerson case and Instruction No. 13 incorporate the standard for commercial reasonableness set out in 12A Okl. Stat. Ann. § 9-507(2) (Supp. 1992). However, the Wilkerson opinion prefaced its analysis of the commercial reasonableness standard by stating, “The clear intent of the applicable provisions of the UCC is to allow the repossessing secured party substantial flexibility as to the method chosen to dispose of the collateral.” Id. at 507. Appellant cites this language in support of his argument that a “substantial flexibility” instruction was necessary to give the jury a complete definition of “commercially reasonable sale.”

We disagree. The trial court instructed the jury on the commercial reasonableness limitation as that limitation has been defined by Oklahoma statute and case law. The Wilkerson court’s recognition of the substantial flexibility afforded to a creditor in disposing of collateral is not a definition of the commercial reasonableness limitation but a broad interpretation of the purpose of the U.C.C.’s default provisions. As the instructions given by the trial court did not mislead the jury on the commercial reasonableness limitation as defined under Oklahoma law, we find no error in the refusal of appellant’s proffered instruction.

Appellant’s fifth argument is that the trial court in submitting the issue of punitive damages to the jury because the evidence was insufficient to show that the actions of Truck Center were willful, wanton, or malicious. In order for punitive damages to be awarded under Oklahoma law, two requirements must be met: first, actual damages must be shown; second, the secured party’s acts must be wanton, malicious, and intentional. Davidson, supra. Appellant’s specific challenge is to the second of these requirements. However, we discuss the actual damages prerequisite in order to clarify our ultimate disposition of this case.

Under Oklahoma law, the measure of actual damages for a commercially unreasonable sale is the difference between the value of the property and the proceeds of the sale. Beneficial Fin. Co. v. Young, 612 P.2d 1357 (Okla. 1980); Davidson v. First Bank & Trust Co., Yale, 609 P.2d 1259 (Okla. 1976). In this case, Truck Center sold the repossessed truck to Arrow for $18,000.00. The jury found that the sale was commercially unreasonable, and that the fair market value of the truck was $28,000.00. Accordingly, Autrey sustained actual damages in the amount of $10,000.00.

Generally, under Oklahoma law, the damages sustained in a commercially unreasonable sale are set off against a deficiency. Young, supra. In this case, however, the finding of malicious conduct on the part of Truck Center negated the possibility of a set-off situation by depriving Truck Center of its right to a deficiency judgment. Therefore, Autrey did not actually receive compensatory damages for the commercially unreasonable sale.

We do not interpret Oklahoma law as depriving the wronged debtor of his right to seek punitive damages in such situations. Such an interpretation would allow a secured party to shield itself from punitive damages behind its own wrongful conduct. The Oklahoma Supreme Court addressed a similar situation in the Davidson case, supra. In that case, the court held that a secured bank could not escape liability for punitive damages by virtue of the bank’s earlier stipulation that the value of the collateral equaled the debt. In so holding, the court indicated that it would not allow secured creditors to exploit the actual damages requirement:

Bank may not extricate itself from liability for punitive damages by admitting the amount of actual damages sustained and then claiming because it has made this concession there are no actual damages on which to base a punitive award.

Id. at 1262.

Based on the rationale expressed in the Davidson opinion, we interpret Oklahoma’s actual damages prerequisite as a requirement that such damages be shown rather than awarded in conversion actions based on commercially unreasonable sales. As the jury in this case found that the fair market value of the truck exceeded the proceeds of the commercially unreasonable sale, Autrey’s right to seek punitive damages was unaffected by his failure to actually receive compensatory damages.

The evidence amply supports the jury’s finding that the actions of Truck Center were willful, wanton, or malicious. The testimony and exhibits relating to the transactions between appellant and Arrow indicate that appellant simulated a sale of the truck in order to establish an excessive deficiency. Troy Mills, the owner of Truck Center testified that Truck Center sold the truck to Arrow for $18,000.00, yet Arrow never received title to the truck. Appellee introduced documentation showing that Truck Center sold the truck to Arrow for $18,000.00 on June 1, 1988, and that Truck Center repurchased the truck on the following day for $18,100.00. Appellee introduced additional documentation indicating that the truck was ultimately purchased by Ray Robinson for $39,000.00. The difference in the $18,100.00 repurchase price and the sale price in the sale to Robinson supports a finding that Truck Center acted willfully in its original “sale” to Arrow.

The statements of Buzz Stanfield, Truck Center’s former general manager, provide the most compelling evidence of malice and willfulness. Stanfield stated that appellant’s transaction with Arrow was “a set up deal” so that appellant could sue Autrey for a deficiency. Stanfield also stated that the exchange of checks between appellant and Arrow was for the purpose of arranging a fictitious sale. These statements, combined with the progressive documentation of appellant’s transactions involving the truck, provided sufficient evidence for the jury to be instructed on punitive damages.

Appellant’s final argument is that the trial court erred in awarding Autrey $664.00 in costs. Specifically, appellant objects to the $477.00 in costs awarded to the court reporter who took the depositions of Buzz Stanfield and Ray Robinson. Appellant also objects to the award of $34.00 each to William Lash and Susan Fox for witness fees.

We affirm the $68.00 awarded as witness fees. Under ARCP Rule 45(d), trial witnesses are entitled to $30.00 per day for attendance, and $0.25 per mile for travel from the witness’ residence to the place of the trial or hearing. At the post-trial hearing in this case, counsel for appellee informed the trial court that the $34.00 figures included $4.00 allotted as mileage based on the rate of $0.25 per mile. Under ARCP Rule 54(d), costs are allowed as of course to the prevailing party unless the court otherwise directs. As Rule 45 (d) provides for trial witnesses to be paid $30.00 for attendance and $0.25 for mileage, we find no error in the trial court’s award of $68.00 in witness fees for Lash and Fox.

We do, however, find error in the $477.00 awarded for the court reporter who took the depositions of Buzz Stanfield and William Lash. The only documentary proof of the court reporter fee is its inclusion on an unnotarized itemization of expenses attached as “Exhibit A” on appellee’s post-trial brief for attorney fees and expenses. Such unsubstantiated proof is deficient for purposes of an award of costs under Rule 54(d). See Monahan v. Nebraska, 575 F. Supp. 132 (D. Neb. 1983), mod. on other grounds sub nom. Rose v. Nebraska, 748 F.2d 1258 (8th Cir. 1984), cert. denied, 474 U.S. 817 (1985). We therefore reverse the portion of the judgment awarding appellee costs for the court reporter fee.

Appellee cross-appeals the trial court’s denial of attorney fees. Appellant relies on 12 Okl. Stat. Ann. § 936 (1988) in arguing that he is entitled to attorney fees. This statute provides as follows:

In any civil action to recover on [a] . . . contract relating to the purchase or sale of goods, . . . unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

We disagree with appellee’s assertion that he prevailed on a contract action. Appellee responded to appellant’s suit on the sales contract by counterclaiming for conversion. We agree with the trial court that the conversion action did not arise out of the sales contract but out of the events subsequent to appellee’s default on the contract and appellant’s repossession of the collateral. As the claim on which appellee prevailed was for the tort of conversion, we find no error in the trial court’s denial of attorney fees.

Affirmed in part, reversed in part, and modified on direct appeal; affirmed on cross-appeal.

       We are aware of the Oklahoma Supreme Court’s decision in Brigance v. Velvet Dove Restaurant, 756 P.2d 1232 (Okla. 1988), in which the court stated, “It is settled law in Oklahoma that punitive damages are not recoverable unless actual damages are allowed and recoverable.” Id. at 1235. However, we do not find that statement dispositive of the actual damages prerequisite in cases such as the instant one, because the Brigance case was a personal injury action that did not implicate the actual recovery limitations of the forfeiture rule.