author: Robert L. Brown, Justice.

text:
    Eugene HUNT, Individually and for a Class v. Jerry RILEY, et al.; Jerry Riley, Leon Jones, Sr., Jessie Jones, Michael Glover, Cross-Appellants; Eugene Hunt, Individually and for a Class, Cross-Appellees.
    95-387
    909 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995

      Eugene Hunt and Ann Hill, for appellants.

      R. David Lewis, for appellees.

      The Cortinez Law Firm, P.A., by; Robert S. Tschiemer, for cross-appellant Jessie Jones.
   Robert L. Brown, Justice.

Appellant Eugene Hunt, an attorney in Jefferson County, brings this appeal on behalf of himself and other attorneys who, he alleges, comprise a class. He contends that the circuit court erred in dismissing his complaint under Ark. R. Civ. P. 12(b)(6) because his complaint asserted sufficient facts for relief for tortious interference with a business expectancy and for the tort of outrage. We disagree and affirm the order of dismissal.

On February 3, 1993, Hunt filed a class action on his own behalf and on behalf of a class of attorneys who, he stated, had suffered economic hardship because of the defendants’ conduct. The persons named as defendants included appellee Jerry Riley, appellee Leon Jones, Sr., appellee Jessie Jones, and appellee Michael Glover as well as “Blob” Pleasant and Revawn Johnson. Hunt alleged that the attorneys affected were too numerous for individual claims, making a class action the only practical mechanism for relief. No order certifying the class was obtained from the circuit court under Ark. R. Civ. R 23.

The essential allegations in the complaint for purposes of this appeal are these:

12. That a substantial portion of Plaintiff’s [Hunt’s] practice is or has encompassed the area of personal injury law.
13. That Plaintiff’s personal injury practice has drastically decreased.
14. That it has become known to Plaintiff that the named Defendants either alone or in concert have been involved in the solicitation of potential personal injury clients for legal action.
15. That each Defendant obtains auto accident information, approaches the accident victims, and suggests his respective attorney’s name to induce a contract for legal representation.
16. That as a direct and proximate cause of the Defendants’ outrageous conduct the Plaintiff has suffered loss of income.
17. That as a direct and proximate cause of the Defendants’ tortious interference with contractual relationship or business expectancy the Plaintiff and plaintiff class have suffered loss of income, for which the plaintiff is entitled to compensatory damages against the defendants herein.
18. That said prospective clients have made it known that they do not desire to be solicited.
19. That the Defendants alone or in concert have engaged in the tort of outrageous conduct in their persistence in soliciting prospective clients.
20. That the Defendants have alone or in concert have engaged in the tortious interference with contractual relationship or business expectancy.
21. That the Defendants knew or ought to have known, in the light of the surrounding circumstances, that their conduct would naturally or probably result in injury and that they continued such conduct with malice or in reckless disregard of the consequences from which malice may be inferred, and that the plaintiff and plaintiff class are entitled to punitive damages.

Appellee Jessie Jones moved to dismiss the complaint on Rule 12(b)(6) grounds. Appellee Michael Glover answered and denied the complaint’s allegations, but he counterclaimed for sanctions under Ark. R. Civ. P. 11. He then filed a motion to dismiss under Rule 12(b)(6). Appellee Jerry Riley also answered with a denial and counterclaimed for Rule 11 sanctions. In a separate motion, he too moved to dismiss under Rule 12(b)(6). Hunt answered the counterclaims of Riley and Glover for Rule 11 sanctions. A reference is made in the record to a motion for Rule 11 sanctions filed by appellee Jessie Jones on May 13, 1994, but the motion itself is not included in the record.

On April 4, 1994, an order of the circuit court was entered dismissing the Hunt complaint “without prejudice” for failure to state a cause of action. On December 30, 1994, an order by the circuit court was entered denying the request for Rule 11 sanctions. On January 27,1995, Hunt appealed from the “order entered on December 29, 1994 dismissing the complaint.” On February 3, 1995, Riley, Jessie Jones, Leon Jones, Sr., and Glover cross-appealed from the circuit court’s order denying Rule 11 sanctions.

I. MOTION TO DISMISS

We begin by examining Hunt’s point that he stated facts in his complaint upon which relief could be granted. In reviewing a trial court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989). In deciding dismissal motions, the trial court must look only to the allegations in the complaint. Neal v. Wilson, supra; Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In order to state a cause of action, the complaint must allege facts and not mere conclusions. Ark. R. Civ. R 8; see also Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). When a complaint is dismissed without prejudice, the plaintiff has the option of pleading further or appealing. Hollingsworth v. First Nat’l Bank & Trust Co., supra. If the plaintiff appeals, the option to plead further is waived in the event of an affirmance by the appellate court. Id.

Hunt first contends that he adequately pled a claim for tortious interference with a contract or business expectancy. There are four elements of a tortious interference claim: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981). For an interference to be actionable, it must be improper. Fisher v. Jones, supra; Walt Bennett Ford v. Pulaski County Special Sch. Dist., supra.

Hunt in his complaint made several general assertions regarding his cause of action. He stated that a substantial portion of his law practice consisted of personal injury claims and that the defendants obtained accident information from police reports, contacted the accident victims, and referred them to certain attorneys for legal representation. He further asserted that the prospective clients made it known that they did not desire to be solicited and that his personal injury practice had drastically decreased.

Other than the allegation that Hunt had a personal injury practice, the complaint does not specifically state that Hunt actually had a contractual relationship with any of these “prospective clients” or that he had a business expectancy with respect to their representation, although presumably that is the basis for his complaint. Moreover, the complaint gives no factual basis for why Hunt believed that he had a contract or business expectancy to represent these “prospective clients.” Nor does the complaint allege that the defendants knew of a relationship between Hunt and any of the accident victims or of any expectancy Hunt had in their business or that the defendants’ actions were in any way improper. These are essential elements of a tortious interference claim. Fisher v. Jones, supra. Hunt only makes the bald and conclusory assertion that he had a contractual relationship or a business expectancy, and that the defendants’ conduct interfered with it. Conclusions without the necessary factual underpinnings to support them are not enough to state a cause of action. Hollingsworth v. First Nat’l Bank & Trust Co., supra.

The same holds true for his claim of outrage. In order to establish liability for outrage, Hunt was required to show: (1) that the defendants intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of their conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) that the actions of the defendants were the cause of his distress; and (4) that the emotional distress sustained by Hunt was so severe that no reasonable person could be expected to endure it. Thornton v. Squyres, 317 Ark. 374, 877 S.W.2d 921 (1994); M.B.M. Co. v. Counce, 268 Ark. 269, 569 S.W.2d 681 (1980).

Here, Hunt’s complaint alleges that the defendants were soliciting accident victims for their respective attorneys and that this conduct amounted to tortious conduct. While the allegations are of the most serious sort, this court has stated that merely describing conduct as outrageous does not, in itself, make it so. Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991). Hunt also fails to allege that the defendants’ conduct resulted in any type of emotional distress for him, and that is an essential element of the tort of outrage. Hunt only states, again in conclusory fashion, that he suffered a loss of income due to the defendants’ “outrageous conduct.”

We conclude that the circuit court did not err in dismissing Hunt’s complaint for failure to state a cause of action. Moreover, because Hunt chose to appeal rather than to amend his complaint following the order of dismissal without prejudice, his complaint is dismissed with prejudice. See Hollingsworth v. First Nat’l Bank & Trust Co., supra.

II. RULE 11 SANCTIONS

The appellees cross-appealed claiming that the circuit court erred in denying their requests for Rule 11 sanctions. Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party certifies (1) that the attorney made a reasonable inquiry into the facts supporting the document or pleading; (2) that he or she made a reasonable inquiry into the law supporting that document to ensure that it was warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (3) that the attorney did not interpose the document for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Id. Whether a violation occurred is a matter for the trial court to determine, and this determination involves matters of judgment and degree. Id. In reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Id; see also Miller v. Leathers, 311 Ark. 372, 843 S.W.2d 850 (1992); Miles v. Southern, 297 Ark. 280-A, 763 S.W.2d 656 (1988) (supplemental opinion denying rehearing).

The appellees’ cross-appeal should be dismissed because they failed to bring up a record sufficient to decide this point on appeal. The trial court apparently conducted a hearing on the matter, and briefs were submitted. None of this information was included in the record. The burden is on the appealing party to bring up a sufficient record for our review. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). It is impossible to determine if the circuit court abused its discretion in the instant case, when we cannot determine what evidence the court had before it and what it weighed and considered. Id; Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). The fact that Hunt’s complaint is conclusory, standing alone, is not enough for us to conclude that the circuit court abused its discretion. The circuit court’s denial of Rule 11 sanctions is affirmed.

Affirmed on direct appeal. Affirmed on cross-appeal.

Roaf, J., not participating.

       An affidavit was filed by appellee Jessie Jones, but there is no indication in the record that anything other than the allegations in the complaint were considered by the circuit court in making its decision.


source: Caselaw Access Project

author: Bradley D. Jesson, Chief Justice.

license: Public Domain

text:
    State of Arkansas OFFICE of CHILD SUPPORT ENFORCEMENT v. Mark HARNAGE
    95-528
    910 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Karen Walker-Knight, for appellant.

      Phil Stratton, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Office of Child Support Enforcement (“Office”), appeals from a chancellor’s order dismissing its paternity complaint against appellee Mark Harnage. The chancellor ruled that the Office was not a “real party in interest” under Ark. Code Ann. § 9-14-210 (Repl. 1993), due to the fact that the Office had expended no public funds on behalf of the minor child, and thus had no standing to bring suit against Harnage. As the Office made a proper showing that it was a real party in interest under § 9-14-210(d)(2), we reverse and remand.

On July 18, 1994, the Office filed a paternity complaint against Harnage, alleging that he was the father of Stephanie Smith, born March 27, 1976. Attached to the complaint was an April 7, 1994, affidavit of Terry Smith, the natural mother of the child, who averred that she had assigned her right to child support to the Office or had contracted with the Office for its services. The Office asked the chancellor to find Harnage to be the father and to order him to pay a reasonable sum for support.

Harnage filed an answer denying that he was the child’s father. He moved to dismiss the complaint on the grounds that the Office was not a real party in interest and thus had no standing to bring the'paternity suit. In response to this motion, the Office submitted a contract entered between it and Terry Smith on February 28, 1994, prior to the child’s eighteenth birthday, whereby Terry assigned her right to child support to the Office pursuant to Ark. Code Ann. § 20-76-410 (Repl. 1993). The Office asserted that it was a real party in interest under § 9-14-210(d)(2). Thereafter, Harnage filed an amended answer in which he maintained that the Office had no standing and that there was no compelling state interest to pursue the paternity action because the child was a sui juris adult who received no public assistance during her minor years. Following a hearing, the chancellor dismissed the action.

The Office’s sole argument on appeal is that the chancellor erred in concluding that it was not a real party in interest and thus had no standing to bring the paternity complaint against Harnage. Particularly, the Office asserts that the plain wording of Ark. Code Ann. §§ 9-10-104 and 9-14-210 (Repl. 1993) specifically gives it the right to bring the paternity complaint at issue. In his brief, Harnage maintains that the chancellor correctly dismissed the complaint because § 9-14-210 limits the grant of standing to “§ 20-76-410 involving grants to dependent children and § 20-77-109 involving medicare assistance on behalf of the child.”

In interpreting statutes, we give words their ordinary meaning and attempt to give effect to legislative intent:

The beginning point in interpreting this statute, as with all statutes, is to construe the words just as they read and to give them their ordinary and accepted meaning. In addition, this court adheres to the basic rule of statutory construction which is to give effect to the intent of the legislature, making use of common sense.

State v. Johnson, 317 Ark. 226, 876 S.W.2d 577, 579 (1994) (citations omitted). See also State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995).

First, it should be noted that Ark. Code Ann. § 9-10-104 (Repl. 1993) provides that petitions for paternity establishment may be filed by a biological mother, a putative father, a person for whom paternity is not presumed or established by court order, or the Department of Human Services. Pursuant to Act 957 of 1993, the legislature transferred the Child Support Enforcement Unit of the Division of Economic and Medical Services of the Department of Human Services to the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration. This transfer was a type 2 transfer; therefore, the statutory authority of the Department of Human Services was transferred to the Office of Child Support Enforcement. See Ark. Code Ann. § 25-2-105(a) (Repl. 1993). Thus, it is apparent that the Office could file the petition for paternity establishment under § 9-10-104. Under Ark. Code Ann. § 9-10-102 (Repl. 1993), “[a]ctions brought in the State of Arkansas to establish paternity may be brought at any time.”

The principal statute at issue is § 9-14-210(d). This is the statute upon which Harnage relies. It provides in pertinent part as follows:

The State of Arkansas is the real party in interest for purposes of establishing paternity and securing payment of benefits paid and assigned past due support, future support, and costs in actions brought to establish, modify or enforce an order of support in any of the following circumstances:
(1) Whenever aid under §§ 20-76-410 or 20-77-109 is provided to a dependent child; or
(2) Whenever a contract and assignment for child support services has been entered into for the establishment or enforcement of a child support obligation for which an assignment under § 20-76-410 is not in effect; or
(3) Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq.

(Emphasis added.) In the present case, Terry Smith entered into a contract and assignment of child support services with the Office. The three criteria in this statute are listed in the disjunctive, and the Office is a real party in interest when any one of the three conditions is met. Nowhere in § 9-14-210(d)(2) does it require that public funds be expended on behalf of the child before the Office is deemed a real party in interest under this subdivision. We have held that, where the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). See also Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); State v. Johnson, supra. Because the chancellor’s ruling runs contrary to the clear and definite meaning of the statute, we must conclude that its decision was in error.

Reversed and remanded.


author: Robert H. Dudley, Justice. Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES v. Robert HARRIS
    94-867
    910 S.W.2d 221
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Murrey L. Grider, for appellant.

      James C. Hale, III, for appellee.
   Robert H. Dudley, Justice.

Deborah Harris had a baby on November 26, 1970, and subsequently married appellee Robert Harris. Appellee then adopted the child. On August 6, 1981, the Harrises were divorced in Missouri. The decree awarded child custody to the mother and ordered appellee to pay $128.00 per month child support beginning September 1, 1981, and to con-dime until the child reached majority. The child reached majority on November 26, 1988. In the meantime, appellee moved to Crittenden County and, at least in part, failed to pay the child support. The Missouri Department of Social Services referred the matter to appellant Arkansas Department of Human Services, and on March 19, 1993, in Crittenden County, appellant Department of Human Services filed this action for past due child support. The chancellor ruled that the applicable statute of limitations barred claims for arrearage that accrued more than five years before the complaint was filed and found that appellee Harris owed $1,152.00 Appellant Department appeals. We affirm the ruling.

On appeal, appellant Department of Human Services contends that the statute of limitations barred claims for arrearage that accrued more than five years from the effective date of Act 870 of 1991, or March 29, 1986, rather than the five years before the complaint was filed, or March 19, 1989. Act 870 of 1991, now codified as Ark. Code Ann. § 9-14-236 (Repl. 1993), expanded the limitations period for child support actions.

We do not reach the issue. Appellant’s abstract does not contain a summary of the petition or complaint; nor does it contain a synopsis of the proof, if any; nor does it contain a condensation of arguments made below, if any; nor does it contain a summary of briefs submitted to the chancellor, if any. In short, appellant’s abstract does not reflect that it made the argument to the chancellor that it now makes on appeal.

We only reverse a trial court for some prejudicial error committed, or not corrected, by the trial court, with some exceptions not applicable to this case. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). It is incumbent upon appellant to file an abstract that reflects that an issue was raised in the trial court, and the trial court either erred or refused to correct an error. We will not reach an issue where the abstract does not show that it was raised in the trial court. Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992).

Affirmed.

Glaze, J., concurs and Brown, J., dissents.

Tom Glaze, Justice,

concurring.

Even if the trial court reached the merits, the trial court’s decision should clearly be affirmed. My reasons for saying so follow.

First, I should say that the majority correctly sets out the facts of this case, and I need not reiterate them here. Suffice it to say, appellee Robert Harris, as a resident of Missouri, had been in arrears in payment of his child support when he moved to Crittenden County. The Missouri Department of Social Services subsequently sought payment of Harris’s past due support by referring the matter to appellant Arkansas Department of Human Services (DHS), which filed this action on March 19, 1993. The chancellor ruled that the applicable statute of limitations barred claims for arrearage that accrued more than five years before the complaint was filed and found that Harris owed only $1,152. DHS appeals arguing the chancellor utilized the wrong limitations date when determining the amount of arrears.

DHS contends on appeal that the statute of limitations barred claims for child support arrearage that accrued more than five years from March 29, 1986, which is five years prior to the effective date of Act 870 of 1991, codified as Ark. Code Ann. § 9-14-236 (Repl. 1993). As previously mentioned, the trial court held the five year limitations period commenced on March 19, 1989, which was five years before the complaint was filed. DHS fails to cite any case authority for its argument that any child support arrearage action should begin from any time other than when the complaint for arrearage is filed.

I first mention Ark. Code Ann. § 16-56-115 (1987) which is another limitations statute applicable to the facts here. That provision in relevant part provides, “All actions ... shall be commenced within five (5) years after the cause of action has accrued.” (emphasis added). In addition, subsection (b) of § 9-14-236, a part of Act 870 of 1991, provides:

In any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.

(emphasis added). In sum, there is no language in § 16-56-115 or the 1991 act, § 9-14-236, to indicate that the General Assembly intended for this court to construe the beginning operative date for the 1991 act in any manner other than the date the action was commenced.

Moreover, DHS has cited no case in which this court or the court of appeals has used any operative date other than the commencement of the action. This court has handed down many opinions over a long period that involve different statutes of limitations, and each of the opinions holds that the issue is whether the action was commenced within the time allowed by the applicable statute of limitations. Among the recent holdings are: Johnson v. Gilliand, 320 Ark. 1, 896 S.W.2d 856 (1995); Norris v. Banker, 320 Ark. 629, 899 S.W.2d 70 (1995); Ernest E Loewer, Jr. Farms, Inc. v. National Bank of Arkansas, 316 Ark. 54, 870 S.W.2d 726 (1994); Forrest City Machine Works v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993); Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993); Wilson v. General Elec. Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992); First Pyramid Life Ins. Co. v. Stolz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S.Ct. 290 (1992); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); and Smackover State Bank v. Oswalt, 307 Ark. 432, 821 S.W.2d 757 (1991).

The issue on appeal in this case, the operative date for the period of limitations in back child support cases, has been the subject of three recent decisions by this court. They involved Act 525 of 1989, now codified as Ark. Code Ann. § 16-56-129 (Supp. 1993), which established a ten-year limitation on child support, and Act 870 of 1991, now codified as Ark. Code Ann. § 9-14-236 (Repl. 1993), which established an expanded limitations period for commencing child support actions beyond the date that the child reaches age eighteen and sets no limit on the arrearage period. In the first of the three cases, Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), our court applied the statute of limitations beginning with the date the child support action was commenced. This case was decided before the act now at issue, Act 870 of 1991, was enacted. The second case, Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), was decided after Act 870 of 1991 became law, and we held that the operative date was the date the action was commenced. We affirmed both cases in the third case, Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).

A basic rule in construing a statute is to give consistent and uniform interpretations to a statute so that it does not mean one thing at one time and something else at another time. In applying this principle, we have written that when a statute has been construed, and that construction has been consistently followed for many years, such construction ought not be changed. Southwest Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988). In a similar vein, we have said that as time passes, the interpretation given a statute becomes a part of the statute itself. Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978). That reasoning applies to the operative date for the statute of limitations.

In addition, our court has often held that the General Assembly is presumed to have enacted a law with full knowledge of court decisions on the subject, and enacted the law with reference to those decisions. See, e.g., Smith v. Ridgeview Baptist Church, Inc., 257 Ark. 139, 514 S.W.2d 717 (1974); J. L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974); Brown v. Davis, 226 Ark. 843, 294 S.W.2d 481 (1956); Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198, 1 A.L.R.2d 1092 (1947); Texarkana Special Sch. Dist. v. Consolidated Sch. Dist. No. 2, 185 Ark. 213, 46 S.W.2d 631 (1932). That presumption is applicable here.

For all of the above reasons, our court should continue to construe the applicable statutes to mean that the operative date for the limitations period is the date the action is commenced. The chancellor correctly used the date of the commencement of the action as the operative date for the statute of limitations, and should be affirmed for that reason.

Robert L. Brown, Justice,

dissenting.

This is the second time we have had this issue before the court. See Arkansas Office of Child Support v. House, 320 Ark. 423, 897 S.W.2d 565 (1995). In House, we did not address the issue because it had not been precisely raised before the chancery court. Now the Arkansas Court of Appeals has certified the same issue to us for resolution. I would decide this case on the merits.

With regard to a dismissal for failure to abstract material portions of the record under Ark. Sup. Ct. R. 4-2(a)(6), there is enough in the abstract to decide the issue. The abstract contains:

• The Missouri divorce decree stating the required child support of $128 per month for Michael Harris.
• Missouri certificate for the divorce decree filed in Arkansas on March 19, 1993.
• Answer by Robert Harris admitting the matter was filed on March 19, 1993, with summons, notice of hearing and other Missouri documents. He also raised as affirmative defenses the fact that the support obligation had ceased owing to the son’s attaining the age of majority and the statute of limitations.
• Order of the court finding (a) the five-year statute of limitations bars all child support accruing five years prior to March 19, 1993, and (b) the minor child reached his majority on November 26, 1988. The court awarded Human Services $1,152 for child support arrearages accruing from March 1988 (5 years back from the filing of the notice of hearing) through November 1988 (the age of majority).

The issue on appeal is whether the chancellor used the correct statute of limitations. I conclude that the essential facts are before us for purposes of addressing that issue.

Twice in the past six years, the General Assembly has sought to expand the time period for collecting arrearages for child support. See Act 525 of 1989, now codified at Ark. Code Ann. § 16-56-129 (Supp. 1993) (established a ten-year limitation on the arrearage period for child support); Act 870 of 1991, now codified at Ark. Code Ann. § 9-14-236 (Repl. 1993) (established an expanded limitations period for commencing child support actions beyond the date that the child reaches age 18 and set no limit on the arrearage period).

In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), we interpreted Act 525 of 1989 and stated that prior to 1989 the statute of limitations for child support arrearages was five years under the general limitations statute, Ark. Code Ann. § 16-56-115 (1987). In interpreting Act 525 of 1989 with its 10-year limitation period for arrearages, we held (1) that the Act was prospective only, and (2) that the Act did not repeal the existing five-year statute of limitations.

Following the enactment of Act 870 of 1991 with its expanded statute of limitations and arrearage period, we decided Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). In Johnson, we held that the General Assembly could not revive a cause of action that had already been barred under an existing limitations statute at the time the new act became effective. Thus, under the previous five-year limitations statute, collectible support was restricted to five years. We reiterated the Johnson holding in Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).

The case before us is one of first impression for this court, and it involves two policy considerations. A new, expanded statute of limitations became effective with the enactment of Act 870 of 1991, which included a specific provision for retroactive application. This court, however, has made it abundantly clear that a new statute of limitations cannot revive a barred cause of action. Both parties agree in the instant case that the action was timely filed under the time period allowed by Act 870. They further agree that a five-year statute of limitations applied to those arrearages which had accrued prior to the effective date of Act 870. The issue then is what arrearages were barred under the previous limitations statute and, thus, are not collectible under Act 870.

The previous five-year statute of limitations applied up to the effective date of Act 870 which was March 29,1991. A cause of action commenced as of that date under the prior limitations statute would have allowed recovery for arrearages back to March 29, 1986 — five years prior to the filing of the action. Accordingly, on the date Act 870 became effective, accrued arrearages during that time period (March 29, 1986, to March 29, 1991) would not have been barred under the existing statute of limitations. Hence, the retroactive application of Act 870 permits an action for arrearages for that time period because at the time Act 870 came into effect the action had not yet been barred by the five-year statute of limitations. All arrearages accrued prior to that five-year period were barred and could not be revived under Act 870. The chancellor, accordingly, should have calculated the past due child support from March 29, 1986, to November 26, 1988. That would have increased the award of child support from $1,152 to $4,224.

I respectfully dissent.

       Section 16-56-115 is applicable to those support payments due prior to the enactment of § 9-14-236.


author: Robert H. Dudley, Justice.

text:
    Earven HADLEY, Jr. v. STATE of Arkansas
    CR 95-657
    910 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Greg N. Robinson, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty of rape and incest. One of the elements the State must prove to sustain a charge of incest is that the accused was sixteen years of age or older at the time of the offense. Ark. Code Ann. § 5-26-202(a) (Repl. 1993). No direct evidence was introduced to establish appellant’s exact age, but there was substantial circumstantial evidence to establish the fact that appellant was sixteen years of age or older. Appellant moved for a directed verdict on the grounds that his age was not proven. The trial court denied the motion. We affirm the ruling.

Appellant contends that the State failed to prove one of the elements of the offense of incest because there was no direct proof that he was sixteen or older, and, consequently, the trial court erred in refusing to grant a directed verdict. Although none of the witnesses were asked to give appellant’s exact age, there was sufficient circumstantial evidence for the jury to conclude, without speculation or conjecture, that appellant was over sixteen years old.

There was direct evidence offered at pretrial to establish that appellant was twenty-eight years old, but this was not offered at trial. However, the jurors saw and observed appellant during the trial. There was additional circumstantial evidence by which the jurors could conclude that appellant was over sixteen years of age when the crime was committed. Susan Hadley, appellant’s wife and the victim’s mother, testified that she and appellant had been married for six years. She testified that she had two children by appellant and that they were four and five years old. She also testified that appellant worked for a manufacturing company during the course of their marriage. The jurors could reasonably conclude from this combination of factors that appellant was sixteen years of age or older at the time he committed the crime. In fact, to conclude otherwise, the jurors would have to have found that he started working for the manufacturing company at age nine, married at age nine, and fathered his children when he was ten and eleven years of age. Jurors are not required to set aside their common knowledge, but have a right to consider all of the evidence in the light of their own observations and experiences in the affairs of life. A.M.I. Crim. 2d 103 (1994).

Circumstantial evidence may provide the basis for a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). The question of whether the evidence excludes any other hypothesis is for the jury to determine. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). We addressed this same issue in Gurley v. State, 179 Ark. 1149,20 S.W.2d 886 (1927). In that case there was no direct proof that the defendant was over the age of sixteen, but a witness testified that he had known the defendant since he was elected sheriff, and the jury was able to observe him and determine that he was over sixteen. We held that the facts supported no reasonable conclusion other than the defendant was over sixteen years of age. The same kind of reasoning is applicable to the case at bar. The trial court correctly denied the motion for a directed verdict, and we affirm the judgment of conviction for the crime of incest.

Appellant’s next point of appeal, which involves sentencing, is well taken. On September 29, 1994, the jury returned its verdict of guilty on both crimes and recommended a sentence of twenty years for the crime of rape and twenty years for the crime of incest. The trial court pronounced, “It is the sentence and judgment of this court that [appellant] be sentenced to the Arkansas Department of Correction for a term of twenty years on each count” and that the court would “take under advisement whether [the sentences would] be run consecutive or concurrent.” The court set bond at $40,000 pending appeal.

Whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Under the provisions of A.R.Cr.P. Rule 36.4, a trial court may pronounce judgment and enter the judgment of conviction immediately after the trial, or the court may postpone sentencing and the entry of the judgment to a later date to be fixed by the court. From the trial court’s comment, it appears that the court intended to postpone sentencing and postpone entry of the judgment until a later date.

On a later date, October 7, 1994, the trial court entered the judgment of conviction. The judgment provides that appellant is sentenced to the Department of Correction for a term of twenty years on each conviction. The trial court made no entry to indicate that the sentences were to run consecutively. Section 5-4-403 of the Arkansas Code Annotated provides that when multiple sentences are imposed the sentences shall run concurrently unless the court orders the sentences to run consecutively. Id. § 5-4-403(a) (Repl. 1993). Thus, on October 7, 1994, a valid judgment of conviction was entered that sentenced appellant to twenty years for each of the felonies, and by operation of law, provided that the sentences were to run concurrently. At this time a final judgment of conviction existed that would bar further prosecution for either of the crimes. On the same day the trial court ruled that appellant was ineligible for bond and ordered him to be held in custody. On October 10, 1994, appellant gave notice of appeal. On October 13, the trial court refused a second motion to allow an appeal bond.

On November 4, 1994, or about a month after the judgment of conviction was entered, the trial court entered a second judgment of conviction. The second judgment provides that the sentences are to run consecutively rather than concurrently. The trial court, in effect, increased the sentences from twenty to forty years. The record does not reflect that there was a motion or a hearing before the second judgment of conviction was entered.

Appellant immediately filed a motion asking the trial court to set aside the second judgment of conviction and requested a hearing on the motion. The hearing was held on December 21, 1994. The trial court refused to set aside the second judgment of conviction and stated that when the sentence was pronounced it took under advisement the question of concurrent or consecutive sentences, and still had not reached a decision when it entered the original judgment. The trial court stated that it entered the original judgment of conviction for the convenience of the sheriff “to start the process of getting the Defendant transferred to the Department of Corrections” and to assist the defendant in making an appeal bond. Finally, the trial court stated that after entry of the judgment of conviction, it decided to run the sentences consecutively instead of concurrently, and therefore entered the second judgment of conviction.

We have often held that a trial court cannot modify or amend an original sentence once it is placed into execution. DeHart v. State, 312 Ark. 323, 325, 849 S.W.2d 497, 499 (1993), and cases cited therein. A sentence is placed into execution when the trial court issues a judgment of conviction or a commitment order unless the court grants appeal bond or specifically delays execution upon other valid grounds. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). Appellant’s appeal bond was revoked at the time the original judgment of conviction was entered, and the trial court did not reserve the issue of consecutive terms in the original judgment of conviction. Thus, the trial court erred in later entering a second judgment of conviction.

In a comparable case, Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984), the appellant, a youthful offender, was convicted of three felonies and sentenced to five years on each felony, with two years suspended, and with the sentences to run concurrently. Appellant later committed three more felonies, and the prosecutor petitioned for revocation of the suspended sentence. The trial court revoked suspension of the remainder of each sentence and ordered the sentences to be served consecutively. We held that the trial court was without power to change the judgment from concurrent to consecutive after the first part of the sentence had been put into execution. In the case at bar, the trial court was likewise without power to enter the second judgment of conviction, and as a result, we set aside the second judgment of conviction.

After appellant’s and appellee’s briefs were filed, appellant filed a pro se petition asking that his attorney be dismissed and another attorney be appointed to represent him in this appeal. He pleads that counsel refused to take his suggestions at trial, has not effectively communicated with him during the appellate process, violated Rules of Professional Conduct, and generally has not rendered effective assistance of counsel.

Appellant has not stated good cause to relieve counsel. The Sixth Amendment right to counsel provides the right to effective assistance of counsel. It does not provide the right to counsel who substitutes the judgment of the accused for his or her professional judgment. See Morris v. Slappy, 461 U. S. 1 (1983). Nor does it provide the right to counsel of the accused’s choice.

The petition does not contain factual allegations that state grounds for a claim of ineffective assistance of counsel. Moreover, such claims are not cognizable on appeal unless specifically raised below, Sumlin v. State, 273 Ark. 185, 616 S.W.2d 372 (1981), and the petition does not allege that ineffective assistance claims were raised below. Thus we deny appellant’s pro se petition for new counsel.

In summary, we affirm the conviction for incest and set aside the second judgment of conviction. The result is that the original judgment of conviction now stands as the judgment of conviction in this case.

Affirmed as modified.


author: David Newbern, Justice.

text:
    William V. ALEXANDER v. TWIN CITY BANK
    95-516
    910 S.W.2d 196
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Randel Miller, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Ernest H. Harper, Jr., and James M. McHaney, Jr., for appellee.
   David Newbern, Justice.

This is a mortgage foreclosure case brought by the appellee, Twin City Bank, against William V. Alexander, the appellant. Foreclosure was decreed, and the Chancellor granted a summary judgment to the Bank with respect to a counterclaim. The summary judgment on the counterclaim is the subject of this appeal. The judgment is affirmed.

The transaction which resulted in Mr. Alexander’s liability to the Bank originated in 1984 when he and his partners, who were John Flake and others, executed a note in favor of the Bank to finance a Colorado condominium project. In 1987, after it was apparent that the project was in financial trouble, a document was executed which relieved each partner of joint and several liability for 100% of the note and substituted individual liability of each partner for 125% of each partner’s pro rata share. Mr. Alexander’s claim is that Mr. Flake “put” him in the real estate deal and assured him that his participation was without recourse. Mr. Alexander alleges that, by agreeing to the change in the partners’ liability structure, the Bank reduced Mr. Flake’s personal liability on the loan thus making it easier for Mr. Flake to avoid his obligation to hold Mr. Alexander harmless. In conjunction with his counterclaim in the Bank’s foreclosure action, Mr. Alexander impleaded Mr. Flake. The third party claim alleged Mr. Flake had defrauded Mr. Alexander and had breached a fiduciary relationship with him. The counterclaim alleged the Bank had aided and abetted in the fraud and breach.

The Chancellor declined to hear the claim against Mr. Flake. That claim became the subject of separate litigation in Pulaski Circuit Court, and it resulted in a summary judgment in favor of Mr. Flake which we affirmed. Alexander v. Flake, 95-5 (October 30, 1995). In his letter opinion Circuit Judge Bogard concluded Mr. Alexander had been fully informed of the status of the real estate venture and there was no evidence to support his claim that Mr. Flake stood in a fiduciary relationship with him. In the penultimate paragraph of his opinion, Judge Bogard wrote:

Finally, the Court notes that even [if] it were to conclude that there was a fiduciary duty breached by Flake or that he had defrauded Alexander, the three-year statute of limitations has clearly run. At the latest, Alexander was on notice and should have known of any alleged fraud or breach of fiduciary duty on Flake’s part in 1987 when the Continuing Guaranty reduced Alexander’s exposure on the note. Reasonable minds could not disagree ... that Alexander’s claims are barred pursuant to A.C.A. 16-56-105 and Flake is entitled to summary judgment for this reason alone.

Mr. Alexander’s first point of appeal states that the judgment on his counterclaim must be reversed in the event we reverse the Circuit Court judgment. As we affirmed that judgment, the point has become moot.

In his only other point of appeal, Mr. Alexander seeks reversal of the judgment on his counterclaim because “there were additional fact issues to be heard that were not relevant to the prior lawsuit and the issues were not actually litigated in that case.” In his argument on this point, Mr. Alexander refers to FDIC documents which formed the basis of an affidavit of Ray Hackworth stating that the Bank was guilty of wrongdoing.

Mr. Hackworth, who has 30 years’ experience in banking, stated he had examined FDIC reports on the Bank from 1985, 1987, and 1988, and that the FDIC had been critical of the Bank for being overextended on loans to Mr. Flake. He opined that the Bank had allowed a reduction in Mr. Flake’s obligation to escape from regulatory violations. While this information tends to support Mr. Alexander’s claim that the Bank had a motive for helping Mr. Flake, it does nothing to indicate that there was any fraudulent conduct with respect to Mr. Alexander or that there was any concealment which would have the effect of tolling the statute of limitations on whatever fraud or fiduciary breach claims he might have against the Bank.

In response to Mr. Alexander’s claim of “additional facts not litigated,” the Bank argued to the Chancellor, and it argues on appeal, that Mr. Alexander’s claim against the Bank is barred by collateral estoppel. It is argued that, if Mr. Flake has been found innocent of any fraud or breach of a fiduciary relationship, the Bank cannot be held liable for aiding and abetting something that did not occur. The Chancellor granted summary judgment on the basis of collateral estoppel.

An element of the doctrine of collateral estoppel is that the issue sought to be barred from consideration not only have been actually litigated and decided previously but that the previous determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). ludge Bogard’s conclusions that there was no fraud and no fiduciary relationship were not essential to his judgment in view of his ultimate pronouncement that the statute of limitations barred the claims whether or not they were true. See John Cheeseman Truck ing, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). Our affirmance of the judgment was also on the basis of the statute of limitations.

Chancery cases are tried de novo on appeal. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). Although we cannot affirm in this instance on the ground which apparently formed the basis of the Chancellor’s decision, i.e., collateral estoppel, we are free to affirm for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992).

Just as in the Circuit Court claim against Mr. Flake, it is clear that the statute of limitations bars the claim against the Bank and thus that summary judgment in the Bank’s favor was appropriate. Mr. Alexander’s counterclaim addressed the statute of limitations problem by saying that the fraudulent acts were concealed from him and not discovered until September, 1991, thus tolling the statute of limitations until that time. There is no evidence whatever of concealment. The record before us indicates Mr. Alexander was kept informed of his liability, and nothing in the record shows he lacked knowledge of Mr. Flake’s other relations with Bank officers. The record shows that, beginning in 1984, Mr. Alexander himself participated in a separate limited partnership venture which included Mr. Flake and Terrence Renaud, a Bank officer.

We decline to reverse and remand when we know that to do so would be a useless act. Perhaps the best example of a case in which we declined to do so is Robb v. Hoffman, 178 Ark. 1172, 14 S.W.2d 222 (1929). In that case the Chancellor had erroneously refused to determine the interest of one of the parties to land after determining a lien issue. We wrote, “To reverse the case and remand it with directions to determine that question might cause another appeal, and would be a useless and expensive procedure to all parties concerned. We therefore proceed to determine that question.” See also Washington Regional Med. Center v. Medical Care Int’l, Inc., 289 Ark. 198, 711 S.W.2d 457 (1986)(useless to remand for transcription of public hearings if no fact issue on appeal); Borengasser v. Chatwell, 207 Ark. 608, 182 S.W.2d 608 (1944)(no need to remand to chancery court to sell pursuant to equitable lien as satisfactory sale con-

ducted in law court); Teegarden v. Director, Ark. Emp. Sec. Div., 267 Ark. 893, 591 S.W.2d 675 (Ark. App. 1979)(useless gesture to remand where employee-claimant could add nothing to the record).

Given our perception that the record in this case is complete, with Mr. Alexander’s best effort having been made at demonstrating his claim against the Bank, we conclude that to reverse and remand because the doctrine of collateral estoppel was misapplied by the Chancellor would be a useless gesture. Just as in Alexander v. Flake, it is clear that Mr. Alexander’s claims arising from a transaction evidenced by documents of 1984 and 1987 are barred by the three-year statute of limitations expressed in § 16-56-105, given the fact that his counterclaim was not filed until March 16, 1993.

Affirmed.

Corbin, J., not participating.