author: Tom Glaze, Justice.

text:
    IN RE ESTATE OF Barbara Ann CONOVER, Deceased. Lisa McNabb, Administratrix of the Estate of Barbara Ann Conover, Deceased v. Fannie Lou Mobley, as Executrix of the Estate of Kerman A. Jackson, Deceased, et al.
    90-284
    801 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Hoof man & Bingham, P.A., for appellant.

      Robert H. Smith, for appellee Kerman Eric Jackson and Janice Faye Gabriel.

      Hale, Young & Green, for appellee the Estate of Kerman A. Jackson, Deceased.
   Tom Glaze, Justice.

This case involves the construction of Kerman Jackson’s will. Kerman Jackson died on March 13,1986, and was survived by four children, Janice Gabriel, Kerman Jackson, Fannie Mobley and Barbara Conover. Barbara Conover suffered from encephalitis (inflammation of the brain) and was dependent on her father before his death. Apparently, for this reason, a trust was provided for Barbara in the residuary clause of Jackson’s will. Barbara Conover was the sole beneficiary of this trust, and her bills were paid out of the trust money by her sister, Fannie Mobley, as trustee and the executrix of their father’s estate. Under this residuary provision, the residuary trust for Barbara was to terminate upon her death, and the proceeds were to be divided among the decedent’s other three children per stirpes. The residuary provision in the will stated specifically that none of the lawful descendants of Barbara Conover shall take any part of the estate or trust property.

A separate provision of the decedent’s will is in question in this appeal. That provision involved a bequest of Jackson’s stock in the Grady W. Jones Company, which was to be divided equally among his four children, per stirpes. On agreement of the four children, the stock was sold after Jackson’s death, and each child received $62,000, the distributions being made on September 29, 1988, February 1, 1989 and April 18, 1989. Barbara Conover’s distributive share was put into the Conover residuary trust.

While her father’s will was still being probated, Barbara Conover died intestate on July 18, 1989. Her daughter, Lisa McNabb, as administratrix of her mother’s estate, filed a complaint for turnover of assets against Fannie Mobley, as executrix of Jackson’s estate and against Barbara’s brother and two sisters individually. In denying McNabb’s claim, the probate court found that the intent of the testator, Jackson, was that the children of his daughter, Barbara Conover, not take under any part of his will.

On appeal, McNabb argues the stock was a specific legacy bequeathed to Jackson’s four children per stirpes and Barbara’s share from the sale of the stock should have been given directly to her and upon her death, to her estate. In other words, under the terms of the Jackson’s will, the stock proceeds were wrongly put in the Conover residuary trust. We agree. Therefore, we reverse and remand for Barbara’s distributive shares to be made pursuant to our holding.

First, we briefly dispose of the appellees’ argument that Barbara had waived her right to protest the distribution of the stock sale proceeds when her father’s will was being probated. The record shows otherwise. Barbara consented to the sale of the stock and signed a waiver of appearance and notice to the probate hearing, but there is no showing that she agreed or consented to her share of the stock sale proceeds being put in the residuary trust. Further, we do not find the fact that she used the money in the trust for her living expenses persuasive that she waived anything. Clearly, the testamentary trust was established for that purpose under the residuary clause in Jackson’s will, which contained the majority of his estate. And furthermore, there was no showing that Barbara’s living expenses came from the stock sale proceeds instead of the money placed in the trust by the residuary clause. Lastly, in support of their waiver argument, the appellees argue Barbara willingly gave the residuary trustee money she received from her father’s IRA to be put in the trust fund. We fail to see how that act showed Barbara consented to the stock sale proceeds being placed in the trust, especially when witnesses, including her sister, Janice, testified that she voiced anger to such placement.

Under Ark. Code Ann. § 28-53-110(d) (1987), a suit to recover property improperly distributed or money improperly paid is barred three years after the decedent’s death or two years after the time of distribution of the payment, whichever last occurs. Under the facts of this case, the last distribution of the stock sale proceeds was made on April 18,1989,and McN abb, as administrix of Barbara’s estate, filed her suit on October 11, 1989. Thus, we conclude that Barbara never waived her right to protest the improper distribution of the money from the stock sale and that McNabb’s action challenging that distribution was timely.

Now, we address the construction of the Jackson will, which is the gist of this appeal. We have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). The intention of the testator is to be gathered from the four corners of the instrument, itself, considering the language used and giving meaning to all of its provisions, when possible to do so. Armstrong v. Butler, 262 Ark. 31, 552 S.W.2d 452 (1977). The will is to be liberally construed. Motes, 297 Ark. 380, 761 S.W.2d 938. Only when there is uncertainty as to the testator’s intentions from looking at the language used in the will, may the court read the language employed by the testator in the light of circumstances existing when the will was written. Martin v. Simmons, 250 Ark. 774, 467 S.W.2d 165 (1971). However, oral testimony is admissible only for the purpose of showing the meaning of the words used in the will when they are ambiguous, and not to show what the testator intended, as distinguished from his expressed words. Armstrong, 262 Ark. 31, 553 S.W.2d 453.

Keeping these rules of construction in mind, we must interpret the following language from Jackson’s will:

ARTICLE IV
BEQUESTS
B. If my wife, Georgia Helen Jackson, predeceases me then I give, devise and bequeath my stock in Grady W. Jones Co. to my children (Barbara Ann Conover, Little Rock, Arkansas; Janice Faye Gabriel, Sherwood, Arkansas; Kerman Eric Jackson, Jackson, Mississippi; and Fannie Lou Mobley, Pine Bluff, Arkansas) in equal shares per stirpes, provided however I direct that my son, Kerman Eric Jackson shall have the option for a period of one year after my death within which to purchase from three sisters of their decendants their shares of said stock and interest at the then book value of said shares of stock or interest.
C. If my wife... predeceases me then I give, devise and bequeath; one-fourth ('/<) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Janice Faye Gabriel; one-fourth ('/a) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Kerman Eric Jackson; one-fourth O/4) of my gross estate (which has not been distributed in Article IV Paragraph B of this will) to Fannie Lou Mobley; and one-fourth O/4) in trust, to the trustee named in Article II of this Will, for the uses and purposes hereinafter set forth: . . .
* * *
5. If Barbara Ann Conover is deceased prior to the termination of this Trust, then the Trustee shall distribute the principal and any accumulated income thereon to my other children ... per stirpes. In making this distribution it is my intent that none of the lawful descendants of Barbara Ann Conover shall at any time take any part of my estate or the trust property or income thereon.

In reviewing the above provisions, we believe that the intent of the testator is clear. The testator made a specific legacy of his shares of stock to his children in paragraph B of the will. A specific legacy or devise is a gift by will of a specific article or part of a testator’s estate which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by delivery of the particular thing. See Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). Since the testator’s wife predeceased him, the bequest in paragraph B states that the stock goes to his four children in equal shares per stirpes. Further, an option was given to his son for a year to purchase from his sisters or their descendants their shares of the stock. Clearly from this language, the testator intended Barbara to receive her one-fourth interest in the stock, which would pass to her children upon her death.

Such an interpretation is not contrary to other provisions contained in the residuary clause, paragraph C, of Jackson’s will. In those provisions, the testator clearly expressed his desire that one-fourth of his gross estate to be put into trust to care for his daughter Barbara during her lifetime. After her death, the money was not to go to her children but was instead to be divided among her brother and sisters per stirpes. The testator again made his intent clear by stating. “In making this distribution it is my intent that none of the lawful descendants of Barbara Conover shall at any time take any part of my estate or the trust property or income thereon.” The words “this distribution” refer only to the distribution of his gross estate as provided by the residuary clause. The specific bequest of the stock is not mentioned, and in fact in the language describing the interest to be transferred to the testator’s other children, the following qualifying language is used, “which has not been distributed in Article IV Paragraph B of this Will.” In sum, from our reading of the four corners of the will, the testator intended that the specific bequest of stock be treated differently from his residuary clause. If this were not the case, then the specific bequest provision in the will would have been meaningless.

We note that oral testimony was heard by the probate judge concerning the intent of the testator. However, because the terms of the will are not ambiguous, it was error for the trial court to consider extrinsic evidence when interpreting the will. However, even if we were to agree that the will was ambiguous, we believe the testimony heard by the probate judge, especially from attorney, William Marshall, who wrote the will, clearly supports our construction of language and provisions contained in the Jackson will.

For the reasons stated above, we reverse and remand.


source: Caselaw Access Project

license: Public Domain

text:
    Jim C. PLEDGER, Commissioner of Revenues, Arkansas Dep’t of Finance & Administration v. SIMPSON PRESS, INC.
    90-197
    801 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Beth B. Carson, for appellant.

      Anne Owings Wilson, for appellee.
   Tom Glaze, Justice.

This is a sales tax case. The appellee, Simpson Press, Inc., prints advertising brochures for direct mail advertisers. When requested by one of its customers, the appellee uses its mail permit with the post office to purchase the necessary postage and mail the brochures. Under this arrangement, the appellee first sends its customer the estimated cost of postage. After the customer pays the estimated cost, appellee then purchases the postage and makes an adjustment if necessary to the customer’s account by either charging an additional amount or giving a credit. The appellee charged a sales tax on the advertising brochures, but has never charged a sales tax on the postage charges.

Appellant, the Arkansas Department of Finance and Administration, performed a sales tax audit on the appellee and assessed a sales tax on the postage charges as being part of the gross receipts the appellee received for the sale of the advertising brochures for the period of June 1, 1981, to May 30, 1987. By agreement, the amount of the assessment was set at approximately $263,487. After the assessment was sustained by the administrative judge, the appellee paid the tax under protest. The appellee filed suit in chancery court and argued several reasons why the tax money should be refunded including a constitutional argument that a tax on sales of the advertising brochures’ themselves violated the first amendment of the United States Constitution.

In granting the appellee a refund, the chancellor made the following findings: 1) the appellee acted as an agent for its customers in purchasing postage and the funds received from the customers as reimbursement were not part of the total amount of consideration for the sale of the advertising brochures; and 2) the appellee completed its contract with its customers when it delivered the brochures to the post office. The chancellor also held that the assessment of a sales tax on the sales of printed advertising material was not unconstitutional. The appellant appeals from the chancellor’s refunding of the sales tax on the postage charges, and the appellee cross-appeals from the chancellor’s holding that sales tax was not unconstitutional. We find no error in the appeal or cross-appeal, and therefore affirm.

Under Gross Receipts Tax Regulation, GR-3 (C)(1) the term gross receipts or gross proceeds means the total amount of consideration for the sale of tangible personal property and certain services. Under statutory law, a sale is declared to mean the transfer of either title or possession, except in the case of leases or rentals, for a valuable consideration of tangible property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished. Ark. Code Ann. § 26-52-102(a)(3)(A) (Supp. 1989). In addition, a sale shall not include furnishing or rendering of services, except as provided. Ark. Code Ann. § 26-52-102(a)(3)(E). Also pertinent to the issues presented here, we note that the service of printing of all kinds, types, and characters is taxed. Ark. Code Ann. § 26-52-301(4) (Supp. 1989).

Clearly, the appellee’s printing of its customers advertising brochures is subject to tax. However, the question before this court is whether the purchasing of postage and the delivery of the brochures to the post office for its customers should be included as part of the sale. We answer this question in the negative for two reasons.

Under Gross Receipt Regulation 18(a), relied upon by appellant, all freight or transportation charges are part of the gross receipts or gross proceeds on which tax must be collected and remitted unless the freight is charged directly to the purchaser by the carrier. But, here we are dealing with postage bought for the appellee’s customer to mail out advertising brochures to consumers and not freight and transportation added to the sale price for the item to reach its buyer.

For this reason, we agree with the chancellor that in performing the postage and mailing service for its customers, the appellee merely acted as their agent. Appellee billed its customers for the estimated cost of the postage and used the money to purchaser postage and to mail the brochures pursuant to its customers’ instructions. Afterwards, the appellee adjusted the customers’ accounts to reflect only the actual postage costs. In sum, the appellee was merely offering a service for its customers’ convenience. As stated above, a sale shall not include the furnishing or rendering of services, except as provided in Ark. Code Ann. § 26-52-102(a)(3)(A) (Supp. 1989). While the service of printing is included in the Arkansas Gross Receipts Act, we see no mention of a postage and mailing service.

Next, even if we were to treat the purchasing of postage in this case the same as freight and transportation charges, we still would conclude that the charges should not be included as part of the sale. As stated earlier, a sale is declared to mean the transfer of either title or possession. In determining whether transportation charges incurred in delivering goods to a buyer are subject to taxes, the factor having the most bearing is the passage of title to the goods from seller to buyer. See Annotation, Transportation, Freight, Mailing, or Handling Charges Billed Separately to Purchaser of Goods as Subject to Sales or Use Tax, 2 A.L.R.4th 1124 (1980). When a court determines that title did not pass until after the transportation charges had been incurred, such charges are held subject to tax. Id, But, in those instances when title passed prior to the incurring of transportation charged, the charges have been held not to be subject to sales or use taxes. Id.

We followed this reasoning in Belvedere Sand & Gravel Co. v. Heath, 259 Ark. 767, 536 S.W.2d 312 (1976), which is cited in the foregoing annotation. In Heath, Belvedere was assessed a sales tax on charges for hauling sand and gravel. While Belvedere sold sand and gravel, it had no trucks to haul the material. However, if the customer did not have any means of transportation for the sand and gravel, Belvedere would provide independent haulers to deliver its product to the purchaser at the point designated and add the charge on the customer’s bill. On appeal, Belvedere argued that it merely served as a conduit for payment of the hauling charges and that its sale of the sand and gravel was made at the point of origin. We disagreed and held that Belvedere’s sale contract with its customer was not complete until the product was delivered at the point of designation. In other words, since title or possession did not pass until after the transportation expenses had been incurred, those transportation charges were subject to a sales tax.

Unlike in Heath, the present case involves a service of printing and the parties’ contract was complete when the brochures were printed. After the printing of the brochures, the appellee offered the additional service of purchasing postage and mailing the brochures, if requested by the customer. Also, contrary to Heath, there was no evidence showing that the appellee’s sales contract was completed upon delivery to a designated point. In sum, appellee’s postage and mailing service described herein, should not be included as part of the sale of the advertising brochures.

Likewise, we affirm the chancellor’s holding on the cross-appeal that the assessment of the sales tax on the sales of printed advertising material was not unconstitutional. Under Ark. Code Ann. § 26-52-301(4), all printing services are taxed. Unlike in Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), this sales tax provision does not burden rights protected by the First Amendment by discriminating against only a small group. All persons having advertising brochures printed are treated the same regardless of the method of distribution. We fail to see how the application of this tax provision can be discriminatory. See Larey v. Dugan-Allen, 244 Ark. 908, 428 S.W.2d 71 (1968).

For the reasons stated above, we affirm.

       We note the appellant also argued there is insufficient evidence of agency. We have recited considerable evidence that supports appellee’s agency theory and we find no need to discuss this point further. See Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968).


text:
    Bobby Dale WILLIAMS v. STATE of Arkansas
    CR 90-185
    801 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      William R. Simpson, Jr., Public Defender, Omar F. Greene II, Deputy Public Defender, and Richard Lewallen, Deputy Public Defender, by: Omar F. Greene II, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, along with codefendant Yvette Foster, was charged with delivery of a controlled substance, cocaine. At trial, the trial court granted Foster’s directed verdict motion and dismissed her case, but appellant’s case went to the jury which convicted him. Appellant was sentenced to forty years imprisonment as a habitual offender. On appeal, appellant raises four points for reversal. We affirm.

Appellant first challenges the fee arrangement between the North Little Rock Police Department and the confidential informant to whom appellant allegedly sold the cocaine. The informant was paid $60.00 for each successful drug transaction that he completed. Appellant also complains that the informer, who had moved from the state after appellant and Foster were charged, was also reimbursed his expenses by the North Little Rock Police Department and paid “court leave” by his employer during the period the informant appeared as a witness. Appellant asserts that these payments and reimbursements violate Ark. Code Ann. § 16-43-801(2) (1987), a witness fee provision, and his constitutional rights to due process under the United States and Arkansas Constitutions. We disagree.

First we address the language in § 16-43-801(2) which provides that witnesses in criminal cases shall be paid at a rate of $5.00 per day. Appellant argues this statute was violated since the arrangements in this case resulted in the informant being paid more than $5.00 per day for his testimony. In examining the language in § 16-43-801(2), we find no indication that the General Assembly intended the $5.00 to be a ceiling amount. In fact, this same statute provides the same $5.00 amount in civil cases, and this court, in promulgating ARCP Rule 45, established a $30.00 per day witness fee plus a $0.25 per mile travel amount. More importantly, though, the arrangements in this case do not constitute compensation for the witness’s appearance in court. An original payment of $60.00 was made to the informant at the time of the drug transaction; it was not connected to his appearance in court as a witness. Also, payment of the informant’s expenses is not precluded under § 16-43-801(2), nor is any payment made to him by his employer.

In support of his argument that the contingent nature of the informant’s fee violates due process, appellant cites the Florida case of State v. Glosson, 441 So.2d 1178 (Fla. Dist. Ct. App. 1983), appr’d. 462 So.2d 1982 (Fla. 1985). In Glosson, the confidential informant had an arrangement with the authorities whereby he would receive ten percent of all civil forfeitures resulting from criminal investigations in which he was involved. However, the payment of the informant’s fee in Glosson was contingent on his cooperation, testimony in, and successful prosecution of the case. Based upon these circumstances, the Florida court held the contingent fee arrangement to be violative of due process.

Initially, we note that Florida appears to be the only state which has held that the use of contingent fee informants violates due process. Even in Florida, the Glosson decision has been narrowly interpreted and limited to its facts. See Annotation, Contingent Fee Informant Testimony in State Prosecutions, 57 A.L.R.4th 643 (1987). Further, the case specifically relied upon by Glosson for its holding, Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), was expressly overruled in United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987), cert. denied; Nelson v. United States, 484 U.S. 1026 (1988).

Additionally, the case before us is clearly distinguishable from Glosson. Here, the confidential informer was paid $60.00 for each completed drug transaction, and his payment was not contingent upon his cooperation, testimony and the successful prosecution of the case, as was the situation in Glosson. Thus, Glosson is not applicable to this case.

We choose to follow the strong policy articulated in Hoffa v. United States, 385 U.S. 293 (1966), that the veracity of a witness is left to be tested on cross-examination, and the credibility of a witness’s testimony is to be determined by a properly informed jury. Historically, this state has followed the general rule that credibility of witnesses is for the jury. See Wallace v. State, 28 Ark. 531 (1873). There is no reason to change that policy now. As long as the informant is subject to cross-examination regarding the fee arrangement, as he was in the present case, there is no reason to reverse a conviction simply because an informant was paid a contingent fee for his services. In other words, it should be left to the jury to evaluate the credibility of the compensated witness.

For his second point, appellant argues that, if we find it was not error to allow the testimony of the contingent fee informant, we should find error in the trial court’s refusal to give appellant’s proffered cautionary instruction on the credibility of informants. Appellant’s proffered instruction reads as follows:

The testimony of a paid informer, or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with great caution and care.

While some federal courts have adopted such cautionary informer instructions, our court has not. The trial judge here correctly gave AMCI 104 which contains the general instruction on the credibility of witnesses. Because AMCI 104 adequately instructed the jury with respect to the credibility issue, the judge was not required to repeat the instruction in a different manner. See Sumlin v. State, 266 Ark. 709, 587 S.W.2d 5171 (1979).

Appellant next contends the trial court erred in not granting his motion for severance. Immediately prior to trial, appellant moved for a severance based on information that the confidential informant’s testimony was gong to focus more on appellant than his codefendant, Foster. According to appellant, the defenses had become “antithetical.” However, at trial the informant’s testimony did not focus solely on appellant, but. implicated his codefendant as well. Two officers who were conducting surveillance of the transaction also implicated Foster. Further, neither defendant attempted to place the blame on the other.

Severances are to be determined by the trial court on a case-by-case basis in the light of all attendant circumstances. It is an exercise of judicial discretion. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). The trial court’s ruling on a motion to sever will only be reversed when that discretion has been abused. Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987). Also, a trial court is said to have abused its discretion when it is manifest from the record that a severance was necessary in order to have a fair determination of an accused’s guilt or innocence. Legg v. State, 262 Ark. 583, 559 S.W.2d 22 (1977). In light of the fact that appellant’s codefendant was implicated by both the informant and the officers, it is not manifest from the record that a severance was necessary to a fair determination of the appellant’s guilt or innocence. Therefore, we cannot say the trial court abused its discretion.

Also on the issue of severance, appellant argues that the trial court was in error in not granting a severance after it directed a verdict in favor of his codefendant. According to appellant, this was prejudicial because it prevented him from arguing the guilt of his codefendant in his closing argument. Appellant failed to raise this argument below, and as we have previously held, parties on appeal are bound by the scope and nature of those arguments presented to the trial court for its consideration. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). Therefore, we do not reach this argument since it is made for the first time on appeal.

Finally, appellant contends that the “pen pack” offered by the state was insufficient to establish beyond a reasonable doubt that he had been previously convicted of four felonies. Specifically, appellant contends that one of the judgment and commitment orders in the pack was for a James L. Williams, a/k/a Bobby Dale Williams, who was convicted of theft of property in Pine Bluff in 1979. He contends the order is inconclusive as to whether it represents one of appellant’s convictions rather than one belonging to someone else, using appellant’s name as an alias. He also asserts that the Arkansas Department of Correction Admission Summary indicates he was found not guilty of one of the alleged convictions.

Appellant is correct in stating that the state has the burden of proving a defendant’s prior convictions for purposes of the habitual offender statute. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). However, the statute specifically permits the proof to be by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant has previously been convicted of the felonies alleged. Ark. Code Ann. § 5-4-504(a) (1987); Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990). Further, while the trial court must find the existence of the convictions beyond a reasonable doubt, the test on appeal is whether there is substantial evidence that the appellant was convicted of the felonies in question. Stewart, 300 Ark. 147, 111 S.W.2d 844.

In reviewing the “pen pack,” we find it contains numerous records, including ones from the Arkansas Department of Correction Sentence Data Records and the United States Department of Justice, which indicate appellant, Bobby Dale Williams, was convicted of theft of property in 1979. There is also abundant evidence that he was convicted of two counts of theft of property in 1976 and one count of theft by receiving in 1982. Also, the “pack” was accompanied by fingerprints of appellant and was certified as being the original penal records of appellant.

From our review of the “pen pack,” we conclude there is substantial evidence to support the trial court’s finding that appellant had been previously convicted of four felonies. And with respect to appellant’s additional argument that one of the penal records indicates he was found not guilty of the 1979 theft of property offense, appellant simply misreads the record. Instead, that record indicates the appellant entered a plea of not guilty, but it further shows he was sentenced to more than nine years in prison on the charge. Further, the judgment and commitment order clearly indicates that appellant was found guilty of the charge.

Because we find no merit in appellant’s arguments, we affirm.

       Appellant also sought to have this court rule on the propriety of a purported $200.00 fee paid a confidential informant in an unconnected case. Because such a fee is not involved in this case, we do not consider it.


author: Dale Price, Justice. David Newbern, Justice, Otis H. Turner, Justice, Steele Hays, Justice,

text:
    George W. TAYLOR v. James B. PHILLIPS
    90-211
    801 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990
    [Rehearing denied February 4, 1991.]

      Ponder & Jarboe, by: Dick Jarboe, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Paul D. McNeill, for appellee.

      Dudley and Hays, JJ., would grant rehearing.

   Dale Price, Justice.

This is a medical malpractice case which was dismissed by the trial court because the two-year statute of limitations had run. Ark. Code Ann. § 16-114-203(a) (1987). The appellant, George W. Taylor, seeks reversal on the ground that he was undergoing “continuous treatment” during the statutory period. We agree and the judgment of dismissal is reversed.

Mr. Taylor’s jaw was broken on September 7,1987, when his face was struck by a trailer gate which had been kicked by a bull Taylor was loading into the trailer. In September 8, 1987, the appellee, James B. Phillips, an oral surgeon, performed surgery and placed Taylor’s jaw in a brace which was screwed into the bone parts. On September 15, 1987, Taylor returned to Phillips’ office for a follow-up visit. Phillips’ notes indicate that the bone was healing but that the parts were slightly offset.

Taylor’s next visit with Phillips was September 25, 1987, when an x-ray was made showing the slight offset. On that visit, Taylor complained to Phillips that the offset caused him to be unable to wear his false teeth. The x-ray made on that visit also revealed a lung tumor.

The next visit came on October 9, 1987, and on that date Phillips physically repositioned the bones. Phillips advised Taylor to wear the brace another eight to ten weeks.

The lung tumor was removed by another doctor on November 4, 1987. Phillips was consulted prior to that surgery about whether the brace would affect or be affected by tubes to be placed in Taylor’s mouth. Phillips visited Taylor in the hospital on either November 4 or 5, 1987, and Taylor again complained about the jaw. Taylor was advised by Phillips that further surgery on the jaw was necessary and x-rays were made.

On December 8, 1987, Taylor returned to Phillips’ office, and was seen, not by Phillips, but by another oral surgeon, Dr. Modelevsky, Phillips’ partner, who observed that the bones were not healing properly. Modelevsky took x-rays and subsequently cut the brace in half and manually repositioned the jaw bones. On December 9, 1987, Phillips was consulted by Modelevsky, and agreed that further surgery in the form of a bone graft operation was indicated.

Suit was filed on October 16, 1989. The complaint alleged that Phillips “was negligent in his care and treatment” of Taylor, “including the failure ... to advise that he could have a substantial scar” and that Taylor’s “jaw did not heal properly and the failure of the jaw to heal was due to the failure of [Dr. Phillips] to treat and care for the jaw according to accepted standards.” The complaint did not allege negligence in the performance of the surgery on September 8, 1987.

The record reflects that Taylor remained Phillips’ patient within the statutory period and that the brace Phillips had placed on Taylor remained in place until a time less than two years from the date the suit was filed.

This case presents a question about the continuous treatment doctrine, which we recognized and applied for the first, and only, time in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). Mrs. Lane contended that her former husband, Dr. Lane, had, over an eighteen-year period, prior to and during their marriage, given her certain injections which caused scarring and drug addiction. She sought damages for the injury she had suffered from the injections over the entire period. Dr. Lane contended she could not recover for negligent acts alleged to have occurred more than two years prior to the filing of the action. Some of the injections had been given within the two-year period, and we applied the continuing treatment doctrine to hold that damages could be recovered for the injury even though some of the allegedly negligent acts occurred outside the statutory period.

We quoted the following definition of “continuous treatment” from 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982) in Lane as follows:

[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuous treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive. (Emphasis added.)

We stated in Lane that the doctrine’s application in appropriate circumstances was proper. Since this court has only had one opportunity to consider the doctrine of continuing treatment, we will look to other jurisdictions to see under what circumstances it has been applied.

In Samuelson v. Freeman, 15 Wash.2d 894, 454 P.2d 406 (1969), the Washington Supreme Court applied the continuing treatment doctrine and stated:

In construing the statute of limitations concerning medical malpractice, we think it a sound rule that, if malpractice is claimed during a continuous and substantially uninterrupted course of treatment for a particular illness or condition, the statute does not begin to run until the treatment for that particular illness or condition has been terminated.

The patient in Samuelson had suffered a fractured femur, and the physician had performed surgery to reduce the fracture. He continued to observe and treat that particular condition for nearly three years following surgery.

In Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979), the appellant was treated by a dentist over a period of years. She alleged he was negligent in his diagnosis and treatment of her. The Supreme Court of Virginia held that when malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the cause of action accrues and the statute of limitations begins to run when the improper course of examination and treatment for the particular malady terminates.

The Texas Court of Appeals held in Vinklarek v. Cane, 691 S.W.2d 108 (Tex. Ct. App. 1985), that the statute of limitations applicable to medical malpractice claims began to run at the end of the last treatment for the condition for which the patient initially saw the physician. The appellant was treated over a period of time by a physician for an infection following oral surgery.

The appellant brought his action against a physician in Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966), on the theory of continuing treatment. The Maryland Court of Appeals stated that where the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the patient’s cause of action accrues at the end of the treatment for that particular illness, injury or condition, unless he knew sooner or reasonably should have known of the injury or harm, in which case the limitation starts to run with actual or constructive knowledge.

The Wyoming Supreme Court noted in Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985), that courts applying the doctrine uniformly hold that where the defendant physician has provided a continuing course of care for the same or related complaints, the cessation of treatment completes the “act” which starts the running of the statutory period for filing suit. The court held in that case the statute of limitations began to run with respect to the appellant’s claims against the defendant physician on the date he last treated the appellant.

In this case, Taylor was clearly under a continuing course of treatment by Phillips, and so the statute did not begin to run until Taylor’s treatment terminated on December 9, 1987. Taylor still had the brace screwed into his jaw bones on December 9 when Phillips and his partner agreed that Taylor needed further surgery on his jaw. Taylor’s complaint against Phillips was filed on October 16, 1989, well within the statute of limitations.

To hold otherwise might require a plaintiff to bring suit against his or her physician before treatment is even terminated. This could conceivably afford the physician a defense that a patient left before treatment was terminated and before the physician had a chance to effectuate a proper result. Accordingly, the trial court erred in granting Phillips’ motion to dismiss, and its judgment of dismissal is reversed.

Reversed and remanded.

Newbern, J., concurs.

Dudley and Turner, JJ., concur in part and dissent in part.

Hays, J., dissents.

David Newbern, Justice,

concurring. In Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), a course of treatment consisting of negligent acts in the form of improper injections continued until less than two years prior to the filing of the action. In this case the only treatment rendered by the doctor occurred more than two years before the action was filed unless it can be said that leaving the brace on Mr. Taylor constituted continuing treatment. I would be willing to join the court’s opinion if it were limited to that simple conclusion. I am, however, able to concur only in the result because I believe the opinion may mislead future litigants.

The majority opinion quotes the description of the “continuous treatment” doctrine we applied in Lane v. Lane, supra. It then says we recognized it was to be applied in “appropriate circumstances.” Then follows a series of citations to cases which have applied the doctrine. There is no stated recognition that the problem in this case is whether Dr. Phillips’s inaction subsequent to placing the brace on Mr. Taylor constituted “treatment.” That is the issue, and it is a close one in the context of our medical malpractice statute of limitations which begins to run “the date of the wrongful act complained of and no other time.'''’ Ark. Code Ann. § 16-114-203(b) (1987) (emphasis supplied).

It should not be assumed by those reading the court’s opinion that as long as a doctor-patient relationship continues, or there is a continuous course of non-treatment or omission, the statute does not begin to run. A review of the cases cited in the majority opinion shows that they do not support such a conclusion in a jurisdiction which has a statute such as ours.

In Samuelson v. Freeman, 75 Wash.2d 894, 454 P.2d 406 (1969), the Supreme Court of Washington admitted that “[a]n intrinsic quality of imprecision has emerged in the statute of limitations as it affects allegations of medical malpractice” as a result of some of its decisions and that this case “is not likely to make the statute seem more precise.” The action was filed more than three years after Dr. Freeman had performed an operation. At the time the case was decided, apparently the general Washington three-year statute of limitations, R.C.W. 4.16.080(2), applied. No citation to it appeared in the opinion. (The statute was revised in 1971 to include a discovery rule.) The complaint at first alleged negligence in performance of the operation. It was amended at trial to allege “negligence in the examination, diagnosis, treatment and care, including negligent failure to diagnose and properly treat a bone infection” during the three years prior to the filing of the action.

The Washington Supreme Court applied the continuous treatment doctrine but did not specify whether any “acts” of treatment occurred during the three-year period. The Court wrote that the doctrine would make “a sensible corollary” to the discovery rule, a rule which this court has clearly rejected, as we noted in the Lane case.

In Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979), which we cited and relied upon in the Lane case, the Virginia Supreme Court made it clear that “by ‘continuous treatment’ we do not mean mere continuity of a general physician-patient relationship; we mean diagnosis and treatment ‘for the same or related illnesses or injuries, continuing after the alleged acts of malpractice. . . .”’ The court noted parenthetically “that the rule applied . . . presupposes that a continuous course of improper examination or treatment which is substantially uninterrupted is proved as a matter of fact.” It was noted that where the malpractice complained of constitutes a single, isolated act, however, the continuous treatment doctrine would not apply. In that case, a dentist had misdiagnosed the patient and had continuously done so into the statutory period while continuously working on her teeth and assuring her that she had no problem.

Vinklarek v. Cane, 691 S.W.2d 108 (Tex. Civ. App. 1985), was a summary judgment case. The court of appeals found there was evidence from which a fact question persisted as to whether continuing treatment had occurred. The evidence was that the doctor had seen the patient on several occasions after the original treatment for a lung infection. On some of them his notes reflected continued diagnosis of that problem and prescription for it. The court noted the distinction between a continuation of negligent acts and seemed to conclude that continuous treatment could include the facts presented, just as we did in the Lane case. The applicable Texas statute of limitations, Vernon’s Ann. Texas Civ. St. art. 4590i, was unlike ours. It specifically included the continuous treatment doctrine and made no reference to a negligent act.

The majority opinion states that Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966), “stated that where the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the patient’s cause of action accrues at the end of the treatment for that particular illness, injury or condition, unless he knew sooner or reasonably should have known of the injury or harm, in which case the limitation starts to run with actual or constructive knowledge.” That was not the holding of the case. The trial court had granted a doctor’s motion for judgment on the pleadings. The Maryland Court of Appeals noted that there was no such motion recognized in Maryland practice. It did not reverse or affirm the case, but simply remanded it to the trial court to allow the plaintiff to amend his pleading.

In the course of the opinion, the Maryland court discussed in favorable terms both the continuous treatment doctrine and the discovery doctrine. It seemed to be recommending the discovery rule which, of course, we have specifically rejected because of the language of our statute.

In Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985), the court recognized the continuing treatment doctrine, but there was no question about when treatment ended. Wyoming is a discovery rule state, and the only real issue in the case turned out to be whether discovery was presumed to have occurred when the husband of the patient sought advice of an attorney with respect to suspected malpractice before evidence was obtained from which malpractice might have been shown. Other than a general statement of the continuous treatment doctrine, in obiter dictum, the case seems to have no bearing on the one before us now.

Again, I feel future litigants should be warned that the language of the majority is broader than the facts of this case, or the holding in the Lane case justify. See Note, 11 UALR L.J. 405 (1988-89).

Otis H. Turner, Justice,

concurring in part and dissenting in part. The plain and unambiguous wording of the Statute of Limitations relating to actions for medical malpractice begins to run from the date of the wrongful act complained of and at no other time. Ark. Code Ann. § 16-114-203(b) (1987).

It is unclear from a reading of the majority opinion that any recovery by the appellant would be limited to damages incurred as a result of acts of medical malpractice occurring within the two-year period of limitations, whether those acts be considered ones of commission or omission.

This appears to be the holding of the majority in its recognition that “the plaintiff’s complaint did not allege negligence in the performance of the surgery,” an event that occurred outside the period of limitations. To that extent, I concur.

I dissent from any part of the majority opinion which might be construed to permit any recovery for acts or omissions that occur more than two years prior to commencement of the action, whether such recovery is based upon a theory of “continuing treatment,” or “relation back,” or any other similar theory. Under the statute, no recovery is permitted for any malpractice or resulting damages that occur outside the statutory period.

Dudley, J., joins.

Steele Hays, Justice,

dissenting. I believe the majority has given Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), a broader reading than was intended by that decision. In Lane we specifically rejected applying the continuous treatment theory to nonfeasance, i.e., we did not mean to include the failure of a treating physician to correct a wrong as a continuing tort and, therefore, within the continuous treatment doctrine. Rather, the cause of action was to be the result of active malfeasance — a series of negligent acts or a continuing course of improper treatment. We quoted from Farley v. Goode, 219 Va. 969, 252 S.E.2d 954 (1979), that treatment should be looked at in its entirety and that within the context of the statute of limitations, the cause of action needed to be “coextensive with the tortious conduct and that the whole transaction [be] inherently negligent.’ Obviously this is a close question, but when examined in its entirety, I believe it falls on the side of nonfeasance as opposed to active and continuous malfeasance.

One of the reasons for the continuous treatment rule as stated in Lane is that it can give the physician the opportunity to correct errors before harm ensues — that “it would be absurd to require a wronged patient to interrupt corrective' efforts by serving a summons on the physician.” When the doctor-patient relationship has not been substantial enough to allow for such corrective action by the doctor, I would find that this purpose of the rule cannot be fulfilled and the doctrine should not be applicable. In other words, there must be some quantitative and qualitative measure of the treatment given, and it must rise to sufficient treatment for the application of the continuous treatment doctrine to be logically applied. So, for example, in Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516 (1975), the court found that where there was misdiagnosis by a city-run cancer detection center involving several contacts at intervals and surgery for cancer at another hospital, there was not continuous treatment, merely intermittent services which did not qualify as continuous treatment.

In this case I find the course of treatment insufficient to qualify for the application of the doctrine and I would affirm the trial court.


author: Per Curiam. Steele Hays, Justice,

text:
    James A. DUTY v. ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    90-172
    801 S.W.2d 46
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      James A. Duty, for petitioner.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for respondent.
   Per Curiam.

James A. Duty petitions for certiorari seeking to have this court review the record of the disposition of a complaint he filed with the respondent, Arkansas Judicial Discipline and Disability Commission. We deny the petition.

The petitioner filed a notice with this court that he wished to appeal from the disposition of a complaint he has filed with the commission. He then filed a document styled “Petition for Writ of Certiorari to Complete the Record,” and asked that copies of the commission record of the disposition of his complaint be furnished to him.

Rule 12F of the commission’s rules provides that we may grant certiorari to bring before this court any action or failure to act on the part of the commission. There is no provision in the rules for appeal other than by a judge who was made a respondent before the commission. The petitioner is acting pro se. Despite the wording of the documents he had filed in this matter, we sense that he seeks review of the commission’s disposition of his complaint. The only basis upon which he could possibly obtain review is the certiorari provision of Rule 12F.

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy. Sexton v. Supreme Court Comm. on Prof. Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). While it is true that the petitioner has no right of appeal from the commission’s decision, the petition makes no allegation of an error on the face of the record.

Petition denied.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority chooses to interpret Rule 12F of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission narrowly, suggesting that this court can only review the actions of the Commission on appeal by a judge or when a petitioner can show an error on the face of the record. While that may be one basis for certiorari, it is only that, and the word “certiorari” has greater flexibility than the majority opinion implies. Hardin, Commissioner of Revenue v. Norsworthy, County Judge, 204 Ark. 943, 165 S.W.2d 609 (1942); McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942); McAllisterv. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940); Overton v. Alston, 199 Ark. 96, 132 S.W.2d 834 (1939); Rust v. Kocourek, 130 Ark. 39, 196 S.W. 938 (1917); Exparte Phillips, 80 Ark. 200 (1906); Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559 (1889).

As written, I believe Rule 12F can be appropriately construed far more broadly and was so intended when we drafted these rules:

F. Certiorari. The Supreme Court may bring up for review any action taken upon any complaint filed with the Commission, and may also bring up for review a case in which the Commission has failed to act. [My emphasis.]

I do not believe the public or the legislature would have been quite so disposed to the adoption of Amendment 66 had it been contemplated that only members of the judiciary could petition for a review of the actions of the Commission. I respectfully dissent.

Glaze, J., joins this dissent.


author: Per Curiam.

text:
    Paul E. HOPPER v. ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    90-266
    800 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Paul E. Hopper, for petitioner.

      Steve Clark, Att’y Gen., by; Stacy VanAusdall Grundfest, Asst. Att’y Gen., for respondent.
   Per Curiam.

Paul E. Hopper petitions for certiorari seeking to have this court review the record of the disposition of a complaint he filed with the respondent, Arkansas Judicial Discipline and Disability Commission. We deny the petition.

Rule 12F of the commission’s rules provides that we may grant certiorari to bring before this court any action or failure to act on the part of the commission.

The petition states facts which were alleged before the commission and contends that the commission erred in finding a lack of probable cause to proceed with formal charges and a formal hearing. The petition also states that the petitioner has evidence that the judge who was the respondent before the commission and who testified as a witness lied to the commission.

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy. Sexton v. Supreme Court Comm. on Prof. Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). While it is true that the petitioner has no right of appeal from the commission’s decision, the petition makes no allegation of an error on the face of the record.

Evidence that the responding judge lied in his testimony before the commission constitutes no basis for certiorari. The commission would be the proper forum in which to present that evidence.

Petition denied.

Hays and Glaze, JJ., dissent.


text:
    Earl NEIGHBORS v. STATE of Arkansas
    RC 90-69
    800 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      J.F. Atkinson, Jr., for appellant.
    No response.
   Per Curiam.

J. F. Atkinson, Jr., filed a motion for a rule on the clerk on behalf of his client, Earl Neighbors. However, the motion is not accompanied by a proper affidavit as required by A.R.Cr.P. Rule 36.9. See our per curiam of February 5, 1979, reported at 265 Ark. 964, and the case of Melton v. State, 273 Ark. 474, 620 S.W.2d 946 (1981).

It is the responsibility of the attorney of record to see that the record and transcript are timely filed. Nelson v. State, 272 Ark. 287, 613 S.W.2d 598 (1981).

The motion for a rule on the clerk is denied without prejudice to file a proper motion.


author: Jack Holt, Jr., Chief Justice.

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY; Maxwell Baldwin and David Barclay v. FIRST COMMERCIAL BANK of Little Rock, Arkansas as Guardian of the Estate of Eric Wayne Eslick, a Minor; Gary Eslick and Linda Eslick, Parents and Next Friends of Eric Wayne Eslick, a Minor
    90-224
    801 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered January 14, 1991

      McMillan, Turner & McCorkle, by: F. Thomas Curry, for appellants.

      The Haskins Law Firm, for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal arises from a declaratory judgment and involves the interpretation and construction of an insurance policy. We do not reach the merits of the appeal since the trial court’s order fails to comply with Ark. R. Civ. P. Rule 54(b).

The appellees, First Commercial Bank (Bank), as guardian of the estate of Eric Wayne Eslick, a minor, and Gary and Linda Eslick, parents and next friends of Eric Wayne Eslick, sued Maxwell Baldwin, James Kwee, Richard B. Clark, and David Barclay for alleged medical malpractice in the obstetrical care of Linda Eslick and the delivery of her son, Eric Eslick. The issues on appeal, however, only concern the malpractice insurance coverage of the appellants, Dr. Baldwin and Dr. Barclay.

At the time of the alleged malpractice, Doctors Baldwin and Barclay were members of the University of Arkansas School of Medicine faculty and were involved in the administration and operation of the University resident program, of which Linda Eslick was a patient. In addition, Doctors Baldwin and Barclay practiced medicine under the auspices of the University Medical Group (UMG), which is an association of University faculty physicians engaged in private practice. The doctors were insured against medical malpractice by a policy issued by appellant, St. Paul Fire and Marine Insurance Company (St. Paul), in 1973.

St. Paul was allowed to intervene in the action since it contended that the policy was intended to cover only those acts or omissions occurring while the doctors were engaged in private practice as members of the UMG, and not, as alleged in the Bank’s complaint, those acts or omissions involving the doctors’ positions as state employees working with the resident program.

The parties filed a joint motion for declaratory relief requesting the court to determine the extent of coverage afforded by the policy and stipulating that Doctors Baldwin and Barclay would only be liable to the extent of any insurance coverage.

The trial court held that the insurance policy was “sufficiently broad in scope” as to insure the appellant physicians not only in their private practice but in their capacities as state employees as well. The court’s order provided that it’s decision was a “final judgment as to St. Paul” and dismissed that party from the lawsuit; however, it specifically stated that Doctors Baldwin and Barclay “should be retained as party defendants in this litigation.” Unfortunately, the order did not reflect that the trial court made an express determination that there was no just cause for delay, as required by Rule 54(b).

Rule 54(b) provides in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, a counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment . . . .(Emphasis added).

We have stated many times that strict compliance with Rule 54(b) is necessary before an order is appealable, and we have specifically held that the absence of “an express determination that there is no just reason for delay” prevents us from hearing the appeal. Martin v. Couey Chrysler-Plymouth, Inc., 302 Ark. 33, 786 S.W.2d 576 (1990); Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987).

Although the issue was not raised by the parties on appeal, compliance with this rule is a jurisdictional requirement that we must raise sua sponte. Tackett v. Robbs, supra. In doing so, we dismiss this appeal without prejudice.


author: Robert H. Dudley, Associate Justice.

text:
    Loraine SLEDGE v. Harry L. MEYERS and Bestline, Inc.
    90-235
    801 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered January 14, 1991

      John H. Adametz, Jr., for appellant.

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellees.
   Robert H. Dudley, Associate Justice.

The only issue in this car-truck accident case is whether the trial court committed reversible error in refusing to allow a qualified state trooper to testify about the point of impact. We hold there was reversible error.

The accident occurred in the westbound lanes of Interstate 40 in North Little Rock. The appellant, Loraine Sledge, was proceeding west in the outside lane in a car owned by her husband. The appellee truck driver, Harry Meyers, was proceeding west in the inside lane in appellee Bestline, Inc.’s truck. The truck driver was signaling to change to the outside lane. The front right side of the truck hit the rear left of the car. At trial, the car driver testified that she never crossed over into the inside lane. The truck driver, and another truck driver who was following, testified that the truck never crossed over into the outside lane. Thus, the crucial issue was, which vehicle crossed over into the other’s lane?

In her case-in-chief, appellant, the car driver, called State Trooper June Carmen as her witness. Trooper Carmen testified that she had been a police officer for nine years, five years as a trooper and, before that, four years on the Greenwood police force. While a trooper she successfully completed a thirteen-week course on accident investigation and reconstruction and, while with the Greenwood police department, successfully completed a three-week course on accident investigation. She testified that she had investigated more than 110 accidents each year since becoming a trooper, and had testified many times in both civil and criminal cases. The trooper then testified that she investigated the accident by starting with the position of the wrecked vehicles and tracing the skid and scuff marks to the initial point of impact. She said, “We could see how they ... we call it a scuff mark or . . . .” The truck driver’s attorney interrupted and objected to “speculative reconstructionist testimony.” The trial court did not clearly rule on the objection, but, instead, responded: “Don’t use that word ‘we could see’ there and tell what you saw.” The following then transpired:

Q. (By Mr. Adametz) [Appellant’s attorney] Go ahead, Ms. Carmen.
A. We located scuff marks and could see the line that the vehicle was carried straight.
Q. A minute ago you used the term “area of impact.” Tell the jury what the area of impact is, please.
A. Area of impact is what I locate as where the vehicles first make contact.
Q. And did you determine that area?
A. Yes, sir, I did.
Q. And where was that area?
A. Approximately four inches over the centerline.
Q. Which lane was that in?
A. It would be in the right-hand lane, sir.
Q. That would be the lane that’s away from the median? A. Yes, sir.
Q. Go ahead, please.
A. The vehicle was carried approximately 677 feet underneath. You would be going eastbound — westbound. It would be carried underneath the bridge, in all total approximately 677 feet that it was carried before it finally came to rest in the left-hand lane.
Q. They came to rest in the left-hand lane.
A. Yes, sir.
Q. So it is your belief then that the accident started in the right-hand lane at least four inches over the centerline?
THE COURT: That’s what he objected to, Mr. Adametz. I sustained the objection. You may cross-examine. I thqught you were through with the witness.

Prior to 1983 our law was that a police officer should not be able to state his conclusions about the point of impact, or location of the vehicles, based upon the officer’s examination of the skid marks, scuff marks, or debris because it was not beyond a jury’s ability to understand those facts and draw its own conclusions. S & S Constr. Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967); Reed v. Humphreys, 237 Ark. 315, 373 S.W.2d 580 (1963). In 1983, in Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165, we changed our position and wrote:

Where an officer investigates a vehicle accident, observes sufficient relevant evidence such as skid marks, debris from the vehicles, position of the vehicles, or makes other observations, and where he can rationally form an opinion about the point of impact, he should be allowed to testify as to that opinion.

Subsequently, in Ferrell v. Southern Farm Bureau Cas. Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987), we expressly said a qualified trooper could state “who crossed over a center line.” Thus, the trial court erred in ruling that the trooper could not state her opinion about the location of the vehicles at the moment of impact.

We no longer presume error to be prejudicial. Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 688 S.W.2d 275 (1985). A good part of the time devoted to this case at our decisional conference was spent in discussing whether the error was harmless or prejudicial. Preponderating against prejudice is the trooper’s testimony that the area of impact, or place of first contact, was four inches over into the outside, or car’s, lane. Surely, most jurors would know that the trooper was testifying, in her opinion, the truck was at least four inches over into the car’s lane, and no harm resulted from the later ruling. However, after that testimony, the trial court, on its own motion, stated, “I sustained the objection to that testimony.” As a result, the jurors quite possibly thought they should not consider the trooper’s statement, and, since the subject of the testimony was the most crucial issue in the case, prejudice most likely occurred. Accordingly, we reverse and remand.


author: David Newbern, Associate Justice.

text:
    Antonio Demarion COLEY v. STATE of Arkansas
    CR 90-83
    801 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered January 14, 1991

      Rice, Pierce and Ogles Law Firm, by: John Ogles, for appellant.

      Ron Fields, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Associate Justice.

Antonio Demarion Coley appeals from his conviction of aggravated robbery and forgery for which he was sentenced as an habitual criminal to life imprisonment plus 30 years. His sole argument is that the evidence was insufficient. We find the evidence was sufficient, and we have determined, in accordance with our Rule 11 (f), that the court made no error prejudicial to the defendant. The conviction is affirmed.

Marie Robinson identified Coley as the man who, on January 12, 1989, appeared at the Jackpot Store where she worked and attempted to cash a check. He wrote the check in her presence, making it payable to “Jack Pot” for $20. He then tore the check out of a checkbook and turned it over and endorsed it with the name “Tony Johnson” and a phone number. The check, which was introduced as an exhibit, was on the account of Michelle McEwen, and it was signed with that name.

Ms. Robinson testified she explained to Coley she could not cash a check except for the amount of purchase. With that he picked up a carton of soft drinks. She said that was not enough of a purchase. Coley then asked that she call the store manager to approve the check. When she turned away to place the call, she heard the cash register make a noise as if one were trying to open it but had punched the wrong key. She turned to face Coley and told him she could not reach the manager. Coley then asked that she change a dollar. When she opened the register, Coley attempted to get his hand in it. She slammed the drawer closed and asked what he was doing. She testified Coley then backed away, placed his hand in his pocket, and said, “If you’re not going to give me the money, I’m going to have to shoot you.” She twice asked Coley what he had said, and he repeated the statement twice. She then screamed at people on the store lot, and Coley picked up the soft drinks and ran.

Robbery is defined by Ark. Code Ann. § 5-12-102(a) (1987) as follows: “A person commits robbery if, with the purpose of committing a theft. . ., he. . . threatens to immediately employ physical force upon another.” Aggravated robbery occurs, according to Ark. Code Ann. § 5-12-103(a)(l) (1987), if the person committing robbery “is armed with a deadly weapon or represents by word or conduct that he is so armed . . . .”

Coley cites Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), for the proposition that the necessary “substantial evidence” of guilt must do more than create a suspicion and must be of sufficient force and character to force the mind beyond conjecture and compel a conclusion one way or the other. The evidence in this case meets that test.

1. Aggravated robbery

Coley argues that Ms. Robinson’s identification of him in a photo of a physical line-up did not occur until a month after the robbery and that she had described him to the police only as being a black man six feet tall and weighing 180 pounds. No authority is cited in support of his contention that a “belated” identification or such a general description discredits Ms. Robinsons’s positive identification of Coley from the line-up photo and at the trial.

He also argues the evidence was insufficient to prove there was a threat of force. Ms. Robinson’s testimony included the following:

A: . . . I said, “What are you doing?” And he backed off, and he put his hand in his j acket, and he said, “If you’re not going to give me the money, I’m going to have to shoot you.” And I said, “What?” And he said, “If you don’t give me the money, I’m going to have to shoot you.” And he told me that— I asked him again. I don’t know why I asked him three times. I couldn’t believe it. And he told me three times he was going to shoot me if I didn’t give him the money. And I started yelling for the kids out on the parking lot, and he ran out and got in his car. He took the six-pack of Cokes with him, and left.
Q: Were you scared?
A: Not at first, no, sir. After he left, I was very scared. Q: Did you ever see a gun?
A: No, sir.
Q: Why did you ask him again?
A: I just couldn’t believe he was doing it. I mean, I didn’t see a gun, and he just well, if you’re not going to give me the money, I’ll have to shoot you. And I just— I don’t know. I guess I just was nervous or something.

Although he does not cite our cases on the point, Coley’s contention appears to be that Ms. Robinson’s actions belied any fear on her part that Coley had a gun in his pocket. The statute says nothing about fear in the victim, but we held in Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), that to satisfy the threat of deadly force requirement there must be an appreciation on the part of the victim that the accused was armed. Fairchild acknowledged he had tried to make his victim think he had a gun by placing his hand inside his shirt; however, the evidence was that the victim placed no significance on the hand inside the shirt.

In Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985), we held that the fact that Richard was armed with a cap pistol which was perceived by the victim as a deadly weapon was sufficient to satisfy the statute. We noted in passing that the “gravamen of the crime of robbery is the injury or threat of injury to the victim. The threat of injury was just as real to the victim in this case as it would have been had the gun been capable of inflicting injury.”

In Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990), we held that where there has been a “verbal representation” of being armed with a deadly weapon the requirement of § 5-12-103(a)(1) is satisfied. Clemmons’s victim testified she assumed “it was his finger in his jacket” although Clemmons had said “I’ve got a gun. Give me your purse or I’m going to shoot you.” We distinguished the Fairchild case solely on the basis of Clemmons’s statement that he had a gun and would shoot the victim. Although Coley did not say he had a gun, his statement that he would “shoot” Ms. Robinson if she did not give him the money is a verbal representation that he was armed with a deadly weapon.

2. Forgery

Forgery is described, in part, by Ark. Code Ann. § 5-37-201(a) (1987) as drawing a written instrument purporting to be the act of a person who did not authorize it. Second degree forgery occurs when a person forges a check “that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.” Ark. Code Ann. § 5-37-201 (c)(1) (1987). Coley’s argument here is that the evidence showed that a fingerprint analysis was done of the check and it did not show Coley’s prints. Michelle McEwen testified that the check was on her account, that her checkbook had been stolen, and that she had not given anyone authority to sign her name to the check.

The fact that Coley’s fingerprints were not found on the check becomes insignificant in the face of the testimony of Ms. Robinson that she observed Coley draw the check. It was the prerogative of the jury to believe or disbelieve Ms. Robinson’s testimony. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

We do not “pass upon the credibility of the witnesses and [have] no right to disregard the testimony of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon.”

Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987), quoting Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).

Affirmed.


author: Tom Glaze, Associate Justice.

text:
    Earnest V. EDDINGS v. Gary LIPPE
    90-310
    802 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered January 14, 1991

      Davis & Goldie, by: James E. Goldie, for appellant.

      Donald E. Bishop, P.A., for appellee.
   Tom Glaze, Associate Justice.

The sole issue sought to be determined in this case is whether the trial court properly awarded attorney’s fees in a lien foreclosure action. However, we are unable to decide the issue because appellant failed to properly perfect his appeal under ARAP Rule 4. While this issue was not raised by the parties, this court is obliged to address jurisdiction requirements even when the parties do not. Widmer v. Touhey, 297 Ark. 85, 759 S.W.2d 562 (1988). Because the court is without jurisdiction, we dismiss this appeal.

In the action below, appellee attempted to foreclose a mechanics’ and materialmen’s lien against property owned by appellant for work appellee had performed on the property. After a hearing on the matter, the trial court found no contract to exist between the parties, but awarded appellee quantum meruit recovery for work performed. The trial court also awarded attorney’s fees in the sum of $1,400.00 to appellee as costs to be assessed against appellee under Ark. Code Ann. § 16-22-308 (Supp. 1989). A judgment to this effect was entered on November 13, 1989.

On November 17, 1989, appellant field a motion for new trial, raising the issue he now advances on appeal, viz., the trial court erred in applying § 16-22-308, the attorney’s fee statute, in a case where no contract is found to exist. Appellant filed his notice of appeal on December 12, 1989.

Rule 4(c) of the Arkansas Rules of Appellate Procedure provides that when a timely motion for new trial is filed in the trial court by any party, the time for filing an appeal shall run from the date the court either grants or denies the motion. If the court takes no action on the motion within thirty days, it will be deemed denied on the thirtieth day from the date the motion was filed. Rule 4(d) provides that the time prescribed for filing a notice of appeal will be measured from the entry of the order disposing of the motion or from the expiration of the thirty-day period. Finally, and most importantly when considering the procedural events in the present case, Rule 4(c) provides that a notice of appeal filed before the disposition of any new trial motion or, if no order is entered, prior to the expiration of the thirty-day period, shall have no effect.

In this case, there is nothing in the record to indicate the trial court ever made a ruling on appellant’s motion for new trial. In the absence of such a ruling, appellant was required under Rule 4(c) to wait thirty days from the time he filed his motion before filing his notice of appeal. He failed to do so. Instead, appellant filed his notice of appeal on December 12 or only twenty-five days after filing his motion for new trial. Thus, appellant’s notice of appeal was ineffectual. In sum, appellant never obtained a ruling on his motion by the trial judge nor was the judge afforded the thirty-day period in which to act on appellant’s motion. Because the failure to file a timely notice of appeal deprives this court of jurisdiction, Monk v. Farmers Ins. Co., 290 Ark. 38, 716 S.W.2d 201 (1984), we must dismiss this appeal.


text:
    Delmar Lee LEWIS v. STATE of Arkansas
    RC 90-53
    800 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered January 14, 1991
    [Opinion Corrected February 4, 1991.]

      Stephen G. Hough, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Delmar Lee Lewis, by his attorney, has filed for a rule on the clerk.

His attorney, A. Wayne Davis, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    Ross Westbay DUNCAN v. STATE of Arkansas
    CR 90-139
    802 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Gibson & Thomas, P.A., by: Calvin R. Gibson, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Ross Duncan, was convicted of possession of a controlled substance with intent to deliver and sentenced as an habitual offender to 40 years in the Arkansas Department of Correction.

Duncan asserts two points of error on appeal: 1) that the trial court erred in denying his motion to suppress because his consent to the search was not voluntary but obtained by implied coercion, and 2) that the trial court erred in denying his pro se motion to withdraw his guilty plea because there was sufficient evidence to support ineffective assistance of counsel. We find neither argument persuasive and affirm.

On December 23, 1988, Officer Charles Durland of the Little Rock Police Department responded to a call regarding an erratically driven car at the Budget Inn. Upon arriving at the inn, Officer Durland was met by the caller, who identified Duncan’s car as the one about which he had called. Officer Durland pursued Duncan around the parking lot, and Duncan ultimately stopped against a curb but had difficulty putting his car into parking gear. Two additional officers arrived in another patrol car to assist Officer Durland.

Duncan appeared to be intoxicated, although no odor of alcohol could be detected. One of the assisting officers observed a syringe on the floorboard of Duncan’s car, and Duncan was then read a Miranda warning and patted down for a weapon. According to the officer, Duncan understood his rights as they were read to him from the standard Miranda rights card used by the police department.

In addition, the officers claim that Duncan gave them permission to search his car, where they found two additional syringes. The officers testified that Duncan also consented to a search of the trunk of his car and gave them the keys-to his car. The officers opened the trunk and discovered two plastic containers of crystal methamphetamine, a machine that sealed plastic containers, and a locked toolbox.

According to the officers, Duncan subsequently consented to opening the toolbox and showed them which key unlocked the toolbox. Inside the toolbox was a quart-sized Mason jar and a plastic bag that both contained crystal methamphetamine. The officers seized the syringes and containers of crystal methamphetamine, and Duncan was taken to University Hospital, where he refused a blood test, and then to detention. Duncan denies giving voluntary consent to the search.

On March 15, 1989, Duncan was charged by felony information with possession of a controlled substance with intent to deliver. The charge was amended on January 12,1990, to include habitual offender status. An omnibus hearing was held on February 12, 1990, and Duncan’s written motion to suppress evidence and oral motion for dismissal on speedy trial grounds were both denied. Duncan subsequently entered a conditional guilty plea on February 15 and reserved the issue of the suppression of the evidence obtained in the officer’s search of his car.

On April 8, 1990, the date set for sentencing, Duncan attempted, pro se, to withdraw his guilty plea. The trial court denied Duncan’s motion and proceeded with sentencing.

Duncan initially asserts that the trial court erred in denying his motion to suppress because his consent to the search was not voluntary but obtained by implied coercion. Duncan claims that the Miranda warning he received does not refer to any rights regarding searches and that he was not given an opportunity to sign a consent form. The essence of his argument is that he was impliedly coerced by the presence of the three police officers into consenting to their search.

We noted in McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), that the practice on appellate review is to state the facts in a light most favorable to the appellee, and the State has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. In reaching a decision, we look at the totality of the circumstances in determining whether a consent is voluntary, and the trial court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981).

Additionally, although we recognize that the trial court may take into consideration whether a defendant knew he had the right to refuse consent in determining voluntariness, it is not a conclusive factor. McIntosh v. State, supra. In fact, we have specifically noted that knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980) (citing McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979)).

In this case, the police officers testified that Duncan consented to their search of his car, trunk, and toolbox and even showed them which keys unlocked the trunk and toolbox. Additionally, it appears from the record that Duncan is not a complete stranger to criminal proceedings in that he had been previously arrested and accorded the assistance of counsel. See generally Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977).

Consequently, we find that the trial court’s denial of Duncan’s motion to suppress evidence and ruling that his consent was given voluntarily is not against the preponderance of the evidence.

In his second point of error, Duncan claims that the trial court erred in denying his pro se motion to withdraw his guilty plea because there was sufficient evidence to support ineffective assistance of counsel.

Arkansas R. Crim. P. 26.1 addresses plea withdrawal and provides in pertinent part as follows:

(a) The court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
* * * *
(c) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(i) he was denied the effective assistance of counsel.
* * * *

In Hill v. Lockhart, 474 U.S. 52 (1985), the two-part standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel - requiring that the defendant show that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different - applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the second requirement, the defendant must show that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial. It is the defendant’s burden to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).

We note initially that Duncan was questioned by the trial court on February 15, 1990, at the time he tendered his conditional guilty plea as follows:

Q Have you discussed this with your attorney, sir?
A Yes, sir.
Q And do you have questions about it?
A No, sir.
Q Do you have any complaints about the services of your attorney, sir?
A No, I don’t.
Q Do you know of anything your attorney has failed to do, sir?
A Not that I’m aware of.

Yet, on April 8, 1990, the date of his sentencing, Duncan presented a prose motion alleging several grounds of his counsel’s ineffectiveness, which included: 1) his trial counsel was not present for the plea and arraignment, which was delayed until the next day, and then his counsel had to be summoned from another court in the courthouse, 2) his trial counsel agreed to file a motion for speedy trial but failed to do so, 3) his trial counsel made an oral motion regarding the speedy trial issue, but it was not timely (in fact, the trial court determined that an excludable period had prevented the time from running), 4) his trial counsel did not consult him regarding his defense, and 5) his trial counsel never discussed calling him as a witness, even though he was called as a witness at the omnibus hearing.

Although he recognized the necessity of showing that he would have pleaded not guilty and insisted on going to trial but for his counsel’s alleged errors, Duncan has failed both in his motion and his appellate argument to show how he was prejudiced as a result of the alleged ineffective assistance of his counsel.

Accordingly, he has not met his burden encompassed within Rule 26.1 as to proof of a manifest injustice or satisfied the standard of ineffective assistance of counsel set out in Hill v. Lockhart, supra.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Larry CRANE, Director, Assessment Coordinator Division and Steve Clark, Attorney General v. ARKANSAS ELECTRIC COOPERATIVE CORPORATION
    90-177
    802 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Wright, Lindsey & Jennings, and Robert M. Lyford, Vice President and General Counsel of Arkansas Electric Cooperative Corp., for appellee.
   Robert H. Dudley, Justice.

This is another in the series of cases involving the extremely complex Amendment 59 to the Constitution of Arkansas. This particular case requires us to decide which provision of the Amendment governs the computation of property taxes on public utilities.

Arkansas Electric Cooperative Corporation, the taxpayer, is an electric cooperative which owns real and personal property in Benton and Jefferson Counties. In 1985, both Jefferson and Benton Counties completed the reassessment and equalization of taxable real and personal property in accordance with our opinion in Arkansas Pub. Serv. Comm’n v. Pulaski County Bd. of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). The millage rates were rolled back in that “base year” in accordance with Amendment 59.

However, in March 1985, voters in some of the school districts in both counties approved millage increases. Appellant Crane, as Director of the Assessment Coordinator Division of the Public Service Commission, and the county tax collector of the two counties, sought to include the increases in the school district millage in the taxpayers’ 1985 tax liability. Such an action would have the effect of increasing the taxpayers’ property taxes for the two subsequent years also involved in this case.

Appellant Crane and the collectors argued below, and Crane argues on appeal, that a part of Amendment 59, article 16, section 14(a), expressly authorized the collectors to compute the taxpayers’ 1985 property taxes by adding in the school district’s millage increases. The basis of their argument is one phrase of a sentence in subsection (a) which states that the “base year” shall be “adjusted for any lawful tax or millage rate increase or reduction imposed in the manner provided by law for the year which the tax adjustment or rollback is to be made, . . . .” The Chancellor correctly held that phrase was not applicable to the taxation of public utilities.

The sentence containing that phrase and the subsection following it provide in full:

The adjustment or rollback of tax rates or millage for the “base year” as hereinafter defined shall be designed to assure that each taxing unit will receive an amount of tax revenue from each tax source no greater than ten percent (10%) above the revenues received during the previous year from each such tax source, adjusted for any lawful tax or millage rate increase or reduction imposed in the manner provided by law for the year for which the tax adjustment or rollback is to be made, and after making the following additional adjustments:
(i) By excluding from such calculation the assessed value of, and taxes derived from, tangible personal property assessed in the taxing unit, and all real and tangible personal property of public utilities and regulated carriers assessed in the taxing unit, and ....

(Emphasis supplied.)

From the emphasized language and the full text it is apparent that utility property is to be excluded from the general provisions of reassessment and equalization. This provision was written on the premise that utility property was being properly assessed at, or near, its current market value.

Fred Rush, the agency general manager of the Assessment Coordination Division, testified that if Amendment 59 had not included the exception for public utilities and regulated carriers, their property taxes would have dropped because they would have received the benefit of a rollback on millage rates on property which was already substantially assessed at market value. The exception prevented such a reduction of taxes for utilities.

Taxation of utilities is treated separately in subsequent paragraphs of subsection (a) as follows:

Provided, however, that the taxes to be paid by public utilities and regulated carriers in the respective taxing units of the several counties of this State during the first five (5) calendar years in which taxes are levied on the taxable real and personal property as reassessed and equalized in each of the respective counties as a part of a state-wide reappraisal program, shall be the greater of the following:.
(1) The amount of taxes paid on property owned by such public utilities or regulated carriers in or assigned to such taxing unit, less adjustments for properties disposed of or reductions in the assessed valuation of such properties in the base year as defined below, or
(2) The amount of taxes due on the assessed valuation of taxable real and tangible personal property belonging to the public utilities or regulated carriers located in or assigned to the taxing unit in each county at millage rates levied for the current year.
As used herein, the term “base year” shall mean the year in which a county completes reassessment and equalization of taxable real personal property as a part of a statewide reappraisal program, and extends the adjusted or rolled back millage rates for the first time, as provided in subsection (a) of this Section, for the respective taxing units in such county for collection in the following year.

(Emphasis supplied.)

Under this separate provision a public utility must pay the greater of (1) the amount paid in the base year or (2) the amount under the new system. In this case, subsection (1) means that in 1986 the taxpayer was required to pay the same amount paid in 1985, the base year, less adjustments for property disposed of and depreciated. Appellants do not contend that subsection (2) is applicable to the taxpayer in this case. This subsection assures the taxing units that, in the first five years under the new system, they would receive at least as much property tax revenue from public utilities as they had received in the last year of the old system. The only exceptions to this floor were, for property which had been disposed of and for normal depreciation.

In summary, the Chancellor correctly interpreted article 16, section 14(a), (1) and (2), to mean that the method for computing the real and personal property taxes to be paid by a public utility during the first five years under the new system is to compare (1) the amount of taxes paid in the base year, less adjustments for property disposed of and depreciated, with (2) the amount of taxes due on the assessed valuation of property of the utility at millage rates levied for the current year. The public utility will then pay the greater of the two amounts. In this case the greater figure is the amount of taxes paid in the base year.

The decree of the Chancellor is in all things affirmed.

Newbern, J., not participating.


text:
    FORREST CITY MACHINE WORKS, INC. v. Harold S. ERWIN, Circuit Judge and Jimmy Ray Lyons
    90-252
    802 S.W.2d 140
    Supreme Court of Arkansas
    Opinion delivered January 22, 1991

      David Hodges, for appellant.

      Dick Jarboe, for appellee.
   Robert H. Dudley, Justice.

This case is before us on a petition for writ of prohibition. Petitioner, Forrest City Machine

Works, Inc., and respondent Jimmy Ray Lyons were before this Court previously in Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990). In that case, we affirmed the trial court’s dismissal of the complaint based upon invalid service of process. That opinion was handed down on March 19, 1990. On April 2, 1990, respondent Lyons filed the complaint which is involved in this case. Petitioner filed a motion to dismiss in which it argued that the action was barred by the applicable statute of limitations for product liability cases. The trial court denied the motion to dismiss. Petitioner then filed this petition asking us to prohibit the trial court from maintaining the action. We find that a writ of prohibition is not a proper remedy and, accordingly, the petition is denied.

Prohibition is an extraordinary and discretionary writ. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy available. Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981). Accordingly, prohibition is not a substitute for appeal, and would lie only where appeal would be inadequate. Springdale School Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981). It is never issued to prohibit an inferior court from erroneously exercising jurisdiction, but rather where the lower court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Jameson, 274 Ark. at 80.

Here, petitioner has failed to establish that the trial court was without jurisdiction. Statutes of limitation constitute an affirmative defense, see ARCP Rule 8(c), but they are generally not jurisdictional. Those that are jurisdictional are tied to the right itself, and not just the remedy. See, e.g., Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978) (limitation for wrongful death actions). Petitioner has not presented us with a case holding that the applicable statute of limitations for product liability cases is jurisdictional. Further, we know of no such case. Prohibition is not available as a remedy if the statute of limitation governing a particular proceeding is not jurisdictional, but may only be raised as an affirmative defense. Arkansas State Hwy. Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988); 63A Am. Jur. 2d, Prohibition, § 57 (1984).

Petitioner does argue that in the case of Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), we granted a writ of prohibition when the trial court had personal and subject matter jurisdiction, and we did not hold there was an inadequacy in the remedy of appeal. It asks us to do the same again. Curtis was an anomaly involving an issue of first impression which we resolved “for the benefit of the trial courts.” It is doubtful that we will ever again follow the procedure in Curtis. We limit that case to its facts.

Accordingly, the petition is denied.

Holt, C. J., Newbern and Glaze, JJ., concur.

See concurring opinion of Justice Glaze in Ridenhower v. Erwin, 303 Ark. 647, 649, 799 S.W.2d 535, 536 (1990).