text:
    Dalton DAVES and Sentry Indemnity Company v. HARTFORD ACCIDENT AND INDEMNITY COMPANY
    89-347
    788 S.W.2d 733
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Jim O’Hara, for appellants.

      Kemp, Duckett, Hopkins & Spradley, by: Donald K. Campbell III and Randolph B. Hopkins, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves enforcement of a statutory lien by the appellee, Hartford Accident and Indemnity Company (Hartford), against appellants, Dalton Daves, Hartford’s insured, and Sentry Indemnity Company (Sentry), to collect monies paid by Hartford to Daves under an automobile liability policy. The jury found for Hartford, and the trial court entered judgment accordingly. We affirm as modified.

On June 8, 1986, Daves was injured in an automobile collision with Kathryn Breyel. Daves was insured by Hartford under a liability policy that included medical payment and wage loss coverage as required by Ark. Code Ann. § 23-89-202 (1987). Hartford paid Daves $9,060 under these coverages.

After demand by Hartford, Sentry (Breyel’s insurer) paid Daves’ collision damage. However, Sentry did not reimburse Hartford for the medical and wage loss payment. In May of 1987, Daves filed a personal injury suit against Breyel. On October 16, 1987, Daves settled with Breyel and Sentry, by which Daves received $25,000. The trial court dismissed the suit with prejudice. As part of the settlement, Daves agreed to indemnify and hold Sentry harmless for all claims that “Hartford may make against Sentry by virtue of the medical PIP [personal injury protection] and subrogation lien that Hartford is making in this case” in exchange for Sentry’s not placing Hartford’s name on the settlement check.

Prior to the settlement, Hartford notified Sentry on a number of occasions of its subrogation claim for reimbursement for the amount it paid for Daves’ medical bills and lost wages. Hartford first learned of the lawsuit and settlement on December 9, 1987, when Sentry wrote Hartford a letter advising Hartford that Sentry would not “honor your subrogation claim in as much as your insured’s attorney agreed to waive all subrogation rights . ...” On December 28,1987, Hartford notified Daves concerning its claim, but Daves refused to pay.

On March 2, 1988, Hartford filed suit against Daves and Sentry alleging that Hartford, pursuant to its lien rights and third party beneficiary status, was entitled to judgment in the amount of $9,060 plus interest. Appellants answered, stating that Hartford had waived its subrogation rights by not taking steps to procure protection of those rights during the litigation between Daves and Breyel and that Hartford was estopped from bringing any claim for its subrogation interest because Hartford informed Daves that its interest had been paid by Sentry, prior to the conclusion of the litigation, and Daves relied on this statement in reaching a settlement and dismissing the litigation.

At the close of Hartford’s case, appellants moved for a directed verdict on the basis that Hartford had not proved it was a third-party beneficiary. The trial court denied the motion. At the close of all the evidence, both Sentry and Daves again moved for a directed verdict on the ground that there was no proof in the record that Hartford was entitled to third-party beneficiary status. In addition, Sentry moved for a directed verdict in its favor on the basis that Hartford had no cause of action under the lien statute because the settlement money was in the hands of Daves at the time the suit was filed and because a direct action against Sentry is not allowed without Hartford’s first filing a suit against the insured. The court denied the motions and submitted the case to the jury on the issue of estoppel and damages. In answering the interrogatories, the jury found that (1) Hartford was not es-topped to assert its lien rights, and that (2) the amount of damages suffered by Hartford was $9,060. Judgment was entered for that amount plus interest. From this order, Daves and Sentry appeal.

I. JURISDICTION

Appellants contend that the circuit court had no jurisdiction to enforce Hartford’s statutory lien, and, therefore, the trial court erred in directing a verdict for Hartford against Daves. This point is meritless.

Under the Arkansas Constitution, circuit courts have original jurisdiction in all cases where jurisdiction is not expressly vested in another court. Russell v. Cockrill, Judge, 211 Ark. 123, 199 S.W.2d 584 (1947). In order to successfully attack the circuit court’s jurisdiction, a party must show that another court has been given exclusive jurisdiction of the subject matter. Id.

Appellants have not cited any authority for the proposition that Hartford’s action to enforce its statutory lien or subrogation rights and recover money damages is cognizable exclusively in equity. Furthermore, it is clear that Hartford’s action is cognizable in law. First of all, it is well established that an action for money damages is cognizable in law. See Priddy v. Mayer Aviation, Inc., 260 Ark. 3, 537 S.W.2d 370 (1976). Secondly, this court has allowed statutory liens and subrogation rights to be enforced in circuit court. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987); Farm Bureau Mut. Ins. Co. v. Riverside Marine Remfg., 275 Ark. 585, 647 S.W.2d 462 (1983).

This court has held that where a defendant raises a defense cognizable only in equity, the case must be heard in equity. See Poultry Growers v. Westark Prod. Credit, 246 Ark. 995, 440 S.W.2d 531 (1969). However, the doctrine of estoppel in pais is available both in law and equity. Branch v. Standard Title Co., 252 Ark. 737, 480 S.W.2d 568 (1972). See also United States Fire Ins. Co. v. Montgomery, 256 Ark. 1047, 511 S.W.2d 659 (1974). Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct or by failure to act or speak under circumstances where he should do so, from asserting a right which he otherwise would have had. See Branch, supra.

Appellants, in their answer, asserted that Hartford had waived its subrogation rights by not taking steps to procure protection of those rights during the litigation between Daves and Breyel and that Hartford was estopped from bringing any claim for its subrogation interest in that Hartford informed Daves that its interest had been paid by Sentry, prior to the conclusion of the litigation. This is essentially an estoppel in pais argument, which is cognizable in law.

II. THIRD-PARTY BENEFICIARY STATUS

For reversal, appellants contend that the trial court erred in finding as a matter of law for Hartford against Sentry and Daves that Hartford was a third-party beneficiary of the settlement of the personal injury lawsuit. The court made no such finding, nor was the jury instructed on the law regarding third-party beneficiaries. Since the only question, besides damages, placed before the jury by the trial court was whether or not Hartford was estopped to assert its lien rights, it is obvious that the court concluded, as a matter of law, that Hartford had established its rights to a statutory lien.

III. STATUTORY LIEN

Arkansas Code Ann. § 23-89-207 (1987) provides:

Insured’s rights of reimbursement.
(a) Whenever a recipient of § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as defined.
(b) All cost of collection thereof shall be assessed against the insurer and insured in the proportion each benefits from the recovery.
(c) The insurer shall have a lien upon the recovery to the extent of its benefit payments.

This code provision grants an insurer, who has paid benefits to its insured under section 23-89-202(1) and (2), a lien upon, and a right of reimbursement from, any tort recovery or settlement obtained by its insured. See Northwestern Nat’l Ins. Co. v. Amer. States Ins. Co., 266 Ark. 432, 585 S.W.2d 925 (1979); Carnathan v. Farm Bureau Ins. Co., 288 Ark. 399, 705 S.W.2d 885 (1986). See also National Inv. Fire and Cas. Ins. Co. v. Edwards, 5 Ark. App. 42, 633 S.W.2d 41 (1982). This right of reimbursement is in the nature of subrogation. Northwestern Nat’l Ins. Co., supra. The underlying principle of subrogation rights is to avoid double recovery by the insured. Farm Bureau Mut. Ins. Co., supra.

In this case, Hartford paid benefits to Daves under section 23-89-202(1) and (2), and Daves later settled with the tortfeasor and her insurer, Sentry, for $25,000. Under section 23-89-207, Hartford was entitled to a lien upon, and a right of reimbursement from, the settlement proceeds in the amount it paid in benefits to Daves, less its share of the costs of collection.

IV. LIABILITY OF SENTRY

Appellants do not dispute that Hartford is entitled to enforce its statutory lien against Daves and recover the amount it paid in benefits to Daves, less its share of the costs of collection, from the settlement proceeds. However, Sentry asserts that Hartford has no cause of action against it for the statutory lien and, accordingly, that the trial court erred in directing a verdict for Hartford against Sentry.

Whether or not Hartford can enforce its lien against Sentry is a question of first impression in this state. We hold that Hartford’s lien is enforceable.

Initially, Sentry contends that it is normal procedure for an insurer, in attempting to subrogate a claim, to file suit against the negligent party, not that party’s insurer. Although this court has not addressed whether a suit against a wrongdoer’s insurer is proper, other courts have allowed such actions. See Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal. 2d 423, 296 P.2d 801 (1956). While it may be the “normal” procedure for a subrogated insurer to file a subrogation claim against the wrongdoer, we see no reason, and appellants offer none, why an insurer cannot enforce its claim against the wrongdoer by an action against the wrongdoer’s insurer.

Sentry, citing Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969), claims that Hartford’s suit is a direct action, which may be brought only after obtaining a judgment against the insured under Ark. Code Ann. § 23-89-101 (1987). We disagree.

Sentry cites dicta in Trinity for the proposition that Hartford cannot sue Sentry directly under section 23-89-101, which concerns subrogation of an injured person to the right of an insured and the right of the injured person to sue the insurer directly. The case at bar can easily be distinguished in that it involves an attempt by an insurer who has paid benefits to its insured, pursuant to section 23-89-202, to be reimbursed from settlement proceeds subsequently received by the insured in a settlement with a tortfeasor and her insurer under section 23-89-207.

In sum, we find nothing in Trinity that prohibits Hartford from filing a direct action against Sentry pursuant to section 23-89-207.

Finally, appellants argue that a statutory lien cannot benefit Hartford in a suit against Sentry when the proceeds have been paid over to Daves.

Prior to the settlement between Sentry and Daves, Hartford repeatedly notified Sentry of its subrogation claim. Thereafter, Sentry, with full knowledge of Hartford’s interest, paid Daves pursuant to the settlement, without notifying Hartford of the settlement or Daves’ suit, and then excluded Hartford’s name from the settlement check in exchange for Daves’ agreement, prepared by Sentry, to indemnify Sentry for all claims “Hartford may make against Sentry by virtue of the medical PIP and subrogation lien that Hartford is making in this case.”

Obviously, from the wording in its agreement, Sentry’s maneuvers were simply a well designed and calculated attempt to escape its acknowledged duty to Hartford. Under the circumstances, we hold that Sentry cannot legally or equitably ignore its responsibility to pay Hartford’s lien even though it may have parted with the settlement proceeds through improvident payment to Daves.

V. ADMISSION OF TESTIMONY

Appellants argue that the trial court abused its discretion in not admitting into evidence the relevant testimony of Jon Ahrens concerning Hartford’s policy on compromising statutory lien claims.

Jon Ahrens, claims manager for Hartford, was asked on cross-examination if he, in handling subrogation claims, ever agreed to accept less than the amount of the claim. Hartford’s counsel objected on irrelevancy grounds, and the court sustained the objection, but agreed to let appellants make a proffer. In the proffered testimony, Ahrens testified that although the company does compromise subrogation claims, it does not compromise statutory lien claims, “like under PIP benefits.” Appellants’ attorney then asked him what he would do if there were not enough coverage to pay the company, the insured, and the insured’s lawyer. He testified that he did not know because he had never had such a claim, but added a PIP claim “might” be subject to compromise if “you had a PIP claim where you ran five thousand medical and five thousand work loss, you had a $10,000 lien and minimum limits twenty-five thousand and so forth----”

Appellants contend that this testimony was relevant to the issue of Daves’ lost opportunity to compromise Hartford’s claim, which went to the issue of detrimental reliance under the estoppel theory asserted by appellants.

In viewing the proffered testimony, it is not readily determinable under what circumstances Hartford would compromise a PIP claim. Accordingly, the trial court could not determine the relevancy of this testimony. As a result, no abuse of discretion occurred.

VI. COST OF COLLECTION

Appellants contend that the trial court erred in not reducing the amount of Hartford’s judgment by Daves’ cost of collection incurred in the personal injury lawsuit. This argument is essentially that Hartford should pay its share of the cost of collection.

Section 23-89-207 (b) provides that all costs of collection in an action to recover for injury “shall be assessed against the insurer and insured in the proportion each benefits from the recovery.” The costs of collection under this section include reasonable attorney’s fees. Northwestern Nat’l Ins. Co., supra.

In this case, Daves did not notify Hartford of his suit against the tortfeasor so that Hartford could intervene to protect its interest and then refused to reimburse Hartford out of the settlement recovery, contrary to the dictates of section 23-89-207(a). As a result, Hartford was forced to bring a different action to enforce its claim, thereby incurring separate expenses and attorney’s fees.

Accordingly, Hartford contends that it has paid its share of the “costs” and thus the trial court did not err in refusing to reduce the amount of its judgment. However, Hartford’s costs were not “costs of collection” of the tort settlement. Although the end result may be unjust, we must follow the code provision, which dictates that Hartford be assessed costs of collection in the proportion it benefited from the recovery by Daves.

The amount of the settlement was $25,000; Hartford, in enforcing its lien, received $9,060 from the settlement, or 36.24 % of the settlement. Daves’ costs of collection were $7,939 ($7,500 in attorney’s fees and $439 in other expenses). Hartford’s share of the fees and expenses is $2,877.09. Accordingly, we reduce the amount of Hartford’s award from $9,060 to $6,182.91.

Affirmed as modified.


source: Caselaw Access Project

author:
Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,
      David Newbern, Justice,

license: Public Domain

text:
    STATE of Arkansas v. Jack McMULLEN
    CR 90-13
    789 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

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

      Riff el, King and Smith, by: Kirby Riffel, for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal by the State of Arkansas, pursuant to Ark. R. Crim. P. 36.10(b) and (c),from the Randolph County Circuit Court’s dismissal by.pretrial motion of the criminal charges against the appellee, Jack McMullen, on the basis of former jeopardy.

On June 7, 1989, the State charged McMullen with the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver.

On September 18, 1989, McMullen pleaded guilty in the United States District Court for the Southern District of Texas to the federal offenses of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute, possession of more than 100 kilograms of marijuana with intent to distribute, and travel in interstate commerce with the intent to promote, manage, or carry on the unlawful activity of possession of marijuana with intent to distribute.

On October 11, 1989, McMullen made a motion to dismiss the State’s charges predicated on Ark. Code Ann. § 5-1-114 (1987); the trial court granted the pretrial motion to dismiss, from which the State appeals.

Section 5-1-114 addresses the former prosecution in another jurisdiction as an affirmative defense to subsequent prosecution and provides as follows:

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or territory thereof, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is based on the same conduct unless:
(A) The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil ....
(Emphasis added.)

* * * *

The State argues on appeal that the trial court erred when it dismissed the charges of public servant bribery and possession of a controlled substance with intent to deliver against McMullen on former jeopardy grounds because these offenses have different elements and are intended to prevent substantially different harms than the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute.

We find that it is not necessary to distinguish the elements of the State offenses from the federal offenses inasmuch as the State’s charges of possession of a controlled substance with intent to deliver and public servant bribery are based on different conduct at different times and places from the underlying conduct upon which the various federal offenses relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute are based, and we reverse.

The facts underlying this case are that McMullen, as an Arkansas State Police Officer, stopped a vehicle for speeding in Randolph County, Arkansas, in January or February of 1989. McMullen subsequently discovered approximately one-quarter pound of marijuana in the vehicle. The two male occupants of the vehicle told McMullen that they could make him rich; as a result, McMullen did not arrest the two men for possession of marijuana, did not issue a speeding ticket, and did not make a report that he had stopped the vehicle. McMullen kept the marijuana, which was subsequently found at his residence after his arrest.

McMullen thereafter traveled to Pasadena, Texas, on two occasions at the invitation of the two men. On March 7, 1989, during his second trip, McMullen received twelve trash bags of marijuana, weighing a total of 302 pounds, from the two men. After loading the marijuana into his car and beginning the return trip to Arkansas, McMullen was arrested by Pasadena police officers and later charged with criminal offenses by the United States of America and the State of Arkansas.

McMullen pleaded guilty, for purposes of this appeal, to the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute. 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1).

Section 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both . . .,” and section 841(a)(1) provides in pertinent part that “. . . it shall be unlawful for any person knowingly or intentionally — (1) to . . . possess with intent to . . . distribute ... a controlled substance . . . .”

Arkansas Code Ann. § 5-64-401 (a)(l)(iv) (1987) addresses the State charge of possession of less than ten pounds of marijuana with intent to deliver and provides, in pertinent part, as follows:

(a) . . . [i]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.
(1) Any person who violates this subsection with respect to:
* * * *
(iv) A controlled substance classified in Schedule VI shall be guilty of a felony ....

The conduct upon which the federal conviction was based was McMullen’s activities in Pasadena, Texas, on March 7,1989, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen’s car. In contrast, the Arkansas charge relates to McMullen’s conduct on January or February of 1989 when he took possession of the one-quarter pound of marijuana from the two men in Randolph County, Arkansas.

Consequently, the underlying conduct upon which the federal conviction and the Arkansas charge are based is not the same, and the former jeopardy protection provided in section 5-1-114 does not apply.

The State charge of public servant bribery is addressed in Ark. Code Ann. § 5-52-103 (1987) and provides, in pertinent part, as follows:

(a) A person commits public servant bribery if:
(1) He offers, confers, or agrees to confer any benefit upon a public servant as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant; or
(2) He solicits, accepts, or agrees to accept any benefit, the conferring of which is prohibited by this section.

The conduct underlying this Arkansas charge is that of McMullen’s acceptance in January or February of 1989, while employed as a state police officer, of one-quarter pound of marijuana in exchange for not arresting the two men for possession of marijuana or issuing a ticket for speeding in Randolph County, Arkansas.

Again, this conduct is not the same as the conduct underlying the various federal convictions relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute because McMullen’s underlying conduct for the federal conviction occurred on March 7, 1989, in Pasadena, Texas, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen’s car.

Consequently, McMullen’s federal convictions will not prevent, on the grounds of former jeopardy, the State from proceeding with its prosecution of the charges against McMullen.

Reversed and remanded for trial.

Glaze, J., concurs.

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

Tom Glaze, Justice,

concurring. While I concur with the majority’s holding that McMullen’s federal convictions do not bar the state, on the grounds of double jeopardy, from proceeding with its prosecution of the charges against McMullen, I do so on other grounds.

The majority contends that McMullen cannot prevail on his double jeopardy affirmative defense because the federal convictions and the state charges are not based on the same conduct. In other words, the majority concludes that the federal convictions were based on McMullen’s activities in Pasadena, Texas, during March of 1989, while the state charges are based on McMullen’s activities in Randolph County, Arkansas, during a traffic stop in January or February of 1989.

The trial court’s order granting McMullen’s motion to dismiss only discusses McMullen’s federal conviction of conspiracy to possess more than 100 kilograms of marijuana with the intent to distribute. And, as shown from the following colloquy between the federal judge and McMullen during the plea arrangement, the federal conviction for conspiracy was based on the same conduct as the Arkansas charges:

Now, the Government has charged, count one, a conspiracy. That is, during the months of January through Marijuana [sic] (March) of1989, here in Houston and in other places, the individuals named in this indictment, Jesus Rodriguez, Francisco Gonzales, Irene Gonzales, Rutilio Tinajero, you and Jackie McMullen, unlawfully, willfully and knowingly and intentionally conspired, combined, confederated and agreed with each other and with the other persons to possess with the intent to distribute, and to distribute, more than a hundred kilograms of marijuana . . .
* * *
Mr. McMullen was talked to by Special Agent Cummins of D.E.A. and during that discussion indicated, among other things, that two months prior to what. . . would have been March 7th, he had stopped in Randolph County, Arkansas, had talked to the people who subsequently were identified as Francisco Javier Gonzales and Jesus Vera. The gist of that conversation I don’t suppose is of any great moment aside from the fact that during that car stop he seized roughly a half a kilo of marijuana from them, and during the discussion he had with them, (they) indicated to (him) if (he’d) come to Houston, (they) could make (him) rich.
He was given a telephone number . . . There were several telephone calls involving these folks back and forth . . . (Emphasis added.)

Obviously, evidence of McMullen’s first meeting with the drug dealers in Randolph County, Arkansas, was used as part of the evidence for the federal conspiracy conviction. Therefore, the federal conviction for conspiracy and the state charges are based on the same conduct.

I believe that this case should be reversed on the only argument made by the state — that the harm sought to be prevented and the elements of the federal charges for public servant bribery and possession with intent to deliver are different. Instead of reversing on this argument, the majority chooses an argument that not only is wrong but is not argued by the state.

David Newbern, Justice,

concurring in part and dissenting in part. The majority opinion ignores the arguments presented in this appeal and concludes the events charged in the Randolph County Circuit Court are separated in time from those of which McMullen was convicted in the United States District Court in Texas, and for that reason, the federal conviction does not bar the trial in an Arkansas court. In my view, the majority of the members of the court have incorrectly analyzed this case.

The transcript of the hearing in the federal court at which McMullen pleaded guilty to five counts showed that the judge, in discussing count one, which was the charge of conspiracy to possess marijuana with intent to distribute, stated the acts were charged to have occurred “during the months of January through marijuana of 1989, here in Houston and in other places. . . .” The word “marijuana” is obviously an error which probably occurred in the transcription of the court’s remarks. (The copy of the transcript we have been furnished shows that the transcription is a “computer aided” one.) The important point, however, is that the charge covered acts as early as J anuary, 1989. That alone would not necessarily show that the alleged acts of McMullen, occurring in Arkansas in January or February of that year were included in the federal conviction. But there is more.

After reciting the counts of the federal indictment to McMullen, the federal court asked the prosecutor what the evidence showed “with regard just to Mr. McMullen.” The response included the following:

Mr. McMullen was talked to by Special Agent Cummins of D.E.A. and during that discussion indicated, among other things, that two months prior to what would have been March — yes, which would have been March 7th, he had stopped the van in Randolph County, Arkansas, had talked to the people who subsequently were identified as Francisco Javier Gonzalez and Jesus Vera.
The gist of that conversation I don’t suppose is of any great moment aside from the fact that during that car stop he seized roughly a half a kilo of marijuana from them, and during the discussion he had with them he indicated to them if they’d come to Houston, he could make them rich.

Despite the somewhat garbled remarks of the prosecutor, it is apparent that the federal conspiracy conviction included the conduct which occurred in Arkansas for which McMullen is charged in Randolph County. The state argues that the statement about the Arkansas activities of McMullen was put on record only as background information. We have no way of knowing that, and as it constituted evidence of acts which it cannot be said were not part of the whole conspiracy, we will consider it as such.

That brings us to the principal arguments made by the parties in this case. The state contends that the trial court erred by determining the federal offense by reference to the government’s presentation of evidence of McMullen’s Arkansas activities as part of the conspiracy. The test is said to be an “elements” rather than an “evidence” test, and the state argues that the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver contain elements different from those composing the federal conspiracy charge.

In Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979), the facts were similar to those here. Federal and state prosecutions arose out of a series of events surrounding the receipt in Arkansas and transportation to Tennessee of stolen firearms. We wrote:

At one time the same conduct could give rise to identical federal and state offenses, because the offenses were deemed to have been committed against different sovereigns, but that view no longer prevails. Our General Assembly, in enacting the Criminal Code of 1976, provided that when the same conduct constitutes an offense within concurrent federal and state jurisdiction, a federal conviction or acquittal is an affirmative defense to a state prosecution unless:
(a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil. [Emphasis added.]

That language is consistent with Ark. Code Ann. § 5-1-114(1)(A)(1987) which provides for a defense based on a federal conviction unless the offense of which the accused was formerly convicted “and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil. . . .”

It does not constitute double jeopardy to convict a person of a conspiracy to commit an offense and then to try him for having committed the offense with respect to which he conspired. Pereira v. United States, 347 U .S. 1 (1954); Sealfon v. United States, 332 U.S. 575 (1948). A state may try one for the same offense of which he has been convicted in a federal court on the basis of the separate sovereignty doctrine unless the state has narrowed its power to do so as our general assembly has done by enacting §5-1-114. See Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977). The next phase of the issue becomes whether the offenses charged in Randolph County and the conspiracy conviction “each” have at least one different element.

No doubt the conspiracy conviction required proof of an element not required in either of the Arkansas charges. It required the knowing, willful combination, conspiracy, or agreement with other persons. The Arkansas possession with intent to deliver charge contained the element of possession which was not an element of the federal conspiracy charge. The Arkansas public servant bribery charge contained several elements not contained in the federal conspiracy charge, e.g., that it be shown that McMullen was a public servant. See Ark. Code Ann. § 5-52-103(a)(1) (1987). The harm or evil addressed by the statute is corruption of public officials which is not an element of the federal conviction.

The last question to be answered is whether the federal conspiracy to possess conviction and the Arkansas possession with intent to deliver charge were intended to address the same harm or evil.

As pronounced by the federal judge, the count of which McMullen stands convicted was conspiracy “to possess with the intent to distribute, and to distribute, more than a hundred kilograms of marijuana, which is a schedule one controlled substance.” I can see no difference between the obvious harm or evil addressed in that charge and the harm or evil addressed in Ark. Code Ann. § 5-64-401(a)(l)(iv) (1987) which makes it unlawful to possess a controlled substance with intent to deliver. In both cases it is apparent to me that the harm or evil addressed is the distribution of, in this case, marijuana.

The decision barring trial on the public servant bribery charge should be reversed, and the decision barring trial on the charge of possession of less than 10 pounds of marijuana with intent to deliver charge should be affirmed.

       McMullen was also convicted of two other federal crimes involving possession of more than 100 grams of marijuana but the basis of the trial court’s ruling is limited to McMullen’s conspiracy conviction.

       From the facts of this case, it is clear that the record contains an obvious mistake which I have corrected parenthetically.


author: Robert H. Dudley, Justice.

text:
    Nan BLACKFORD and Peoples Bank & Trust Co. v. Boyd J. DICKEY, Mary Ann Dickey Kimbrough, et al.
    90-113
    789 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990
    [Rehearing denied June 4, 1990.]

      Young & Finley, by: James K. Young, for appellant Nan Blackford.

      Laws, Swain & Murdoch, P.A., by: Timothy W. Murdoch, for appellants Peoples Bank & Trust Company.

      Mobley & Smith, by: William F. Smith, for appellees G. Ray Baker and Glenna Baker.

      Gardner & Hardin, by: Robert W. Hardin, for appellee First National Bank of Russellville.
   Robert H. Dudley, Justice.

This case involves the priority of claims and a homestead exemption. The Chancellor held that the appellees’ claims come first. We reverse because the appellants’ claims are prior.

Appellee Ray Baker built a house on the property at issue in Pope County. He and his wife, Glenna, subsequently conveyed the property to their daughter and son-in-law, appellees Mary Ann and Boyd Dickey. To finance the purchase of the property, Mary Ann and Boyd borrowed $60,000 from Arkansas Valley Bank and secured the loan with a mortgage on the property, the first mortgage. They then paid the Bakers $47,000 for the home. The note and first mortgage were subsequently assigned to Alliance Mortgage Company. A note and second mortgage were subsequently given by Boyd and Mary Ann to the Arkansas Valley Bank to secure an indebtedness arising from Boyd’s used car business.

On August 26, 1987, Mary Ann filed for divorce and was temporarily awarded exclusive use of the property. Boyd Dickey testified that he left the property soon thereafter and never planned to return, thereby abandoning his homestead interest in the property. On September 1, 1987, appellant Nan Blackford obtained a judgment against Boyd in Pope County.

During this period, Mary Ann and the Bakers discussed the indebtedness. Boyd and Mary Ann agreed to sign the property over to the Bakers to let them try to salvage it. At the time, Alliance Mortgage Company was about to foreclose because of overdue payments on its note. The Bakers sent Alliance a check for $2,535.52 to hold off any foreclosure action until they could get title to the property.

The Bakers then negotiated with officers of the Arkansas Valley Bank and were successful in getting them to enter into a Mutual Release Agreement dated November 15,1987, by which the Bakers paid $ 10,000.00, and Mary Ann was released from her obligation on the business note and the second mortgage which secured it. Boyd executed a new note for the remainder of that debt.

On November 16, 1987, Boyd, who was still married to Mary Ann, executed a quitclaim deed conveying the property in question to the Bakers. On November 23, 1987, Mary Ann also executed a quitclaim deed conveying the same property to the Bakers. Neither joined in the other’s deed. On December 29, 1987, appellant People’s Bank & Trust Company was awarded a judgment against Boyd Dickey in Pope County.

The Dickeys’ divorce decree was filed December 31, 1987. No homestead rights were reserved in the divorce decree; it simply provided “that all property rights arising between the parties have been fully disposed of . . . .”

On February 10, 1988, the Bakers borrowed $55,000 from appellee First National Bank of Russellville. The Bakers used that money to pay off the first mortgage at Alliance Mortgage Company.

Mary Ann subsequently married Jeff Kimbrough. On December 2, 1988, Boyd Dickey, Mary Ann Dickey Kimbrough, and Jeff Kimbrough executed an instrument which they styled “Correction Quitclaim Deed” in which the same property was again conveyed to the Bakers.

Appellants first contend that the chancellor erred in holding that Boyd Dickey conveyed title free of any judgment liens. The argument is well taken.

The sale of a homestead can convey title free of a judgment lien in existence at the time of the sale. Arkansas Sav. & Loan Ass’n v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982). However, Ark. Code Ann. § 18-12-403 (1987) provides:

No conveyance, mortgage, or other instrument affecting the homestead of any married person shall be of any validity, except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his or her spouse joins in the execution of the instrument and acknowledges it.

(Emphasis added.)

The language of this statute could not be clearer. We have long held that deeds made without regard to this statute are void and leave the title as if they had not been made. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433 (1893). Consequently, the quitclaim deeds of November 16,1987, and November 23,1987, were void because the spouse did not join in either of them. Further, the deed styled “Correction Deed” of December 2,1988, could not operate to validate the void deeds. 23 Am. Jur. 2d, Deeds, § 333 (1983). Accordingly, title to the property was not actually conveyed until the “Correction Deed” was executed on December 2,1988. At that time, the Dickeys were divorced and the judgment liens had already attached to Boyd Dickey’s one-half interest in the property.

The right to a homestead exemption in property is a personal right which must be exercised by the party who seeks its benefits, Arkansas Sav. & Loan Ass’n v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982); however, if the debtor spouse neglects or refuses to claim the homestead exemption, then the other spouse may do so. Id:, Ark. Code Ann. § 16-66-212(c) (1987).

Here, it is clear that Mary Ann guarded Boyd’s homestead exemption in the property; however, upon their divorce, Mary Ann and Boyd became tenants in common, each possessing an undivided, one-half interest in the property. Villanova v. Pollock, 264 Ark. 912, 576 S.W.2d 501 (1979). She could not continue to assert his homestead interest after the divorce unless the right to do so was reserved in the divorce decree. Elms v. Hall, 214 Ark. 601, 215 S.W.2d 1021 (1948). Their divorce decree did not reserve that right. Consequently, since Mary Ann could no longer assert Boyd’s homestead exemption in his portion of the property, and he denied doing so, the judgment liens attached to his half interest and followed the property with the “Correction Deed” conveyance to the Bakers.

The other argument in which we find merit is that application of the doctrine of subrogation was not appropriate because appellees Ray and Glenna Baker were “volunteers” in paying off the first and second mortgages on the property. The doctrine of subrogation is an equitable one which has as its basis the doing of complete and perfect justice between parties. Baker v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965). It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice and good conscience demand its application in opposition to the technical rules of law. Id. Subrogation arises when one not primarily bound to pay a debt or remove an incumbrance nevertheless does so, either from his legal obligation, as in the case of a surety, or to protect his own secondary right. It may also arise upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. Id. Subrogation will not generally be decreed in favor of a mere volunteer or intermeddler who, without any duty, pays the debt or discharges the obligation of another. Baker v. Leigh, supra; 73 Am. Jur. 2d, Subrogation, § 23 (1974). Generally, the party making payment is a volunteer if, in so doing, he has no right or interest of his own to protect, and acts without obligation, moral or legal, and without being requested by anyone liable on the obligation. 73 Am. Jur. 2d, Subrogation, § 24 (1974).

Further, the equities of one seeking subrogation must be superior to those of other claimants. Here, the Bakers, as caring parents, were trying to protect their daughter, Mary Ann. They were not trying to protect Boyd. Any benefit to him was only secondary. This is evidenced by their actions on the second mortgage. The debt on the note secured by the second mortgage amounted to more than $82,000.00. The Bakers paid the holder of the note, Arkansas Valley Bank, $10,000.00 to release Mary Ann from the liability on the note, but, did not attempt to secure Boyd’s release. In fact, as part of the agreement, Boyd was required to execute a new note for the difference to the Bank. The Bakers made no effort to satisfy Boyd’s judgment creditors whose judgment liens had long been attached. Thus, it cannot be said that the Bakers’ equities are greater than those of Boyd’s judgment' creditors. Appellee First National Bank of Russellville does not demonstrate any equitable reason whatsoever for subrogation.

Reversed and remanded for proceedings consistent with this opinion.


author: Robert H. Dudley, Justice. Otis H. Turner, Justice,

text:
    Maxine MILLER v. CITY OF LAKE CITY
    90-15
    789 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Rees Law Firm, by: David Rees and Paul J. Teufel, for appellant.

      Woodruff & Huckaby, P.A., by: Arlon L. Woodruff, for appellee.
   Robert H. Dudley, Justice.

The appellant appeals from the Chancellor’s refusal to grant an unlimited variance from Lake City’s zoning ordinance. We affirm the Chancellor’s ruling.

In 1982, Lake City passed a zoning ordinance and, pursuant to that ordinance, appellant’s property was zoned R-l. It is undisputed that under the terms of the zoning ordinance appellant’s use of her land was restricted to a single family residence with only one main building to be located on the lot. The city ordinance did not provide for a zoning board; instead, it provided that the city council alone could grant a variance in zoning. Appellant had a single family home on her lot and, in 1988, wanted to build an “addition” so that her sister, who is very ill, could live with her. She did not need a variance for a simple “addition.”

She did not seek a zoning variance from the city council, and no one from the city council represented to her that she had obtained any type of variance. Her builder went to the city building inspector and said he wanted to build an “addition” to the house. The inspector asked what the distances would be from the structure to the boundaries of the lot. The builder answered by giving the distances, and the building inspector said, “Go ahead.” Later the builder took a blueprint of the construction proposal to the inspector, and the inspector initialed it without examining it. The builder then took the initialed blueprint to the city recorder’s office and, with it, asked for a building permit. A building permit for an “addition” was issued. The blueprint, in truth, did not reflect an “addition,” but, instead, reflected another separate living quarters connected only by a common roof, in other words, a duplex.

The builder started construction. The building inspector, who was also the water superintendent, dug a waterline to the project and, while there, dug the footing for the project. He testified that he had no idea that the project was going to be a duplex. Shortly thereafter, when the framing was up on the separate quarters and the plumbing and electrical work were roughed in, the City realized what was happening. The city attorney immediately wrote appellant a letter stating:

Some of your neighbors have expressed concerns to the Mayor that your “add-on” you are currently building may in fact turn your house into a duplex. The Mayor has asked that I write and remind you that your house is zoned in R-l and duplexes are prohibited in a R-l zoning.
As you know the City of Lake City has strictly enforced our zoning laws in the past and we will continue to do so in the future.

Appellant went ahead and completed her duplex. The City filed an interesting complaint — an understanding complaint — in which it asked that appellant be enjoined from using the property as a multi-family dwelling, or as a rental unit “with a minimum amount of hardship on the defendant.” In a ruling accommodating the foregoing language, the Chancellor held that the City was estopped from enforcing the zoning ordinance for so long as appellant’s ailing sister lived in the duplex. The City did not appeal the ruling. Appellant does appeal and asks that we make the variance unlimited in time.

Through the years we have held that estoppel can be applied against a city, and we have a fully developed body of case law on the subject. For example, we have said that a city is estopped from asserting an irregularity in a contract of purchase when the city has purchased an item, used it for a considerable period of time, and refused to pay for it. City of Fort Smith v. United States Rubber Co., 184 Ark. 588, 42 S.W.2d 1004 (1931). In that case we approved the following language:

The theory of these cases is that a corporation, such as a county or city, should not be permitted to stultify itself by accepting property for necessary use, use it for years until it is worn out, and then refuse to pay on the ground of a lack of authority to make the contract. A municipal corporation, which has enjoyed the fruits of a contract fairly made, cannot, when called to account, deny the corporate power to make it.

We used similar reasoning in the case of City of Fort Smith v. Taylor, 228 Ark. 722, 310 S.W.2d 13 (1958). In each of the foregoing cases, the city itself acted either through an ordinance, a resolution, or a contract. There is no such action by the City in the case at bar and, therefore, those cases are not applicable.

There is a second line of cases which deal with acts of city officers. They hold that a city can be estopped to deny the authorized acts of its officers, see Klinger v. City of Fayetteville, 297 Ark. 385, 762 S.W.2d 388 (1988), but that a city cannot be estopped by the unauthorized act of its officers. Green County v. County of Paragould, 166 Ark. 192, 265 S.W. 839 (1924).

Unlike the long-time application of the doctrine of estoppel against cities, estoppel has only recently been applied against the State. Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). In applying the doctrine against the State we have said four requirements, other than authorization, are necessary: (1) the party to be estopped must know the facts; (2) he must intend that his conduct must be acted on or must so act that the party asserting the estoppel has a right to believe the other party so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the other party’s conduct to his injury. Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983); see also Foote’s Dixie Dandy v. McHenry, supra. Those requirements are equally applicable here.

The appellant does not meet all of the requirements. First, the building inspector and the permit clerk were not authorized to waive the zoning requirements. Second, they did not know the facts. They thought the appellant was building an addition to her house. They did not know she was building a duplex. Third, they never intended that their conduct would constitute a waiver of the zoning requirements. Thus, estoppel was not properly applicable against the City in this case.

Appellant seeks to take advantage of the Chancellor’s kindness and, in effect, argues that, if estoppel applies at all, its application must be unlimited. The argument begs the question. The City did not appeal. The only issue before us is whether the Chancellor erred in ruling that the appellant was not entitled to an unlimited variance. The Chancellor did not err in so ruling.

Affirmed.

Turner, J., dissents.

Otis H. Turner, Justice,

dissenting. Maxine Miller, a longtime resident of Lake City, was the owner of a single-family residence located within an area zoned R-l for single-family residences. Mrs. Miller, a widow, desiring to have her elderly sister near her, decided to construct an addition to her home that would be connected to the existing structure only at the carport. The new addition was to contain a bedroom, bathroom, living room, pantry, and a kitchen-dining room. She drew a rough sketch of the proposed addition and hired Harvey Stallings, a builder in Jonesboro who had years of experience in the Lake City area, to build the project. Mr. Stallings prepared a drawing from the information furnished by Mrs. Miller, showing the dimensions of the proposed structure, the floor plan, and the relation of the addition to the existing residence.

The builder contacted the city building inspector to acquire a building permit. Thereafter, the building inspector went to the site ostensibly to ascertain the location of the proposed construction and to determine if set-back requirements were being met. Ultimately, the building inspector indicated approval of the completed construction plan by initialing the plan. He then executed a building permit which contained no exceptions or restrictions. The city clerk was paid the appropriate fee and final approval of the permit was secured.

When the construction was commenced, the building inspector, using city equipment, came to the job site and dug the footings for the foundation. Apparently, this is a service customarily performed by city employees for a fee which is paid to the city.

When the addition was about 70 percent complete, the Mayor of Lake City wrote Mrs. Miller informing her that the construction appeared to be a duplex in a single-family residential zone, and as such, was not permitted under the city zoning ordinance. Eventually, the city sought a permanent restraining order “which will enjoin the defendant from violating the zoning ordinance regulations ... in such a matter [sic] which will enforce the zoning regulations with a minimum amount of hardship on the defendant.” Mrs. Miller answered, contending that the city, by their action in issuing a building permit under these circumstances, was estopped from now enforcing the zoning law as it applied to this construction. After a proper hearing, the court entered its order denying the injunction “to the extent this property may be used by Jim Tom Stotts, as a residence as long as she desires to live there, but thereafter the property may not be used in any fashion which violates the R-l zoning regulations of the city of Lake City provided they are still in force and effect at that time.” Thus, the court granted a limited or temporary variance based on estoppel, and the appellee does not contest that finding on appeal. However, the appellant appealed from that order to the extent that it limits the use of the property to the duration of the residence of Jim Tom Stotts, the appellant’s sister.

In holding that the city was estopped in this instance from enforcing the zoning provision, the trial court obviously found the evidence sufficient to meet the general requirements for establishing estoppel as a defense, and there is no cross-appeal from that finding. Therefore, if estoppel is available in Arkansas as a defense to governmental action under these facts and our prior decisions, then the appellant is entitled to a variance from the zoning regulations without the restrictions imposed by the court.

Even though there is no appeal from the trial court’s order applying the equitable doctrine of estoppel to governmental action, because the appellant seeks to expand the trial court’s order from a limited variance to a permanent variance, solely on estoppel grounds, we have chosen to examine the applicability of that doctrine to governmental action and, specifically, to the facts of this case.

For many years we followed the principle of law that estoppel would never be available as a defense to governmental action. Belvedere Sand & Gravel Co. v. Heath, 259 Ark. 767, 536 S.W.2d 312 (1916); Ark. State Highway Comm’n v. Lasley, 239 Ark. 538, 390 S.W.2d 443 (1965); Ark. State Highway Comm’n v. McNeil, 222 Ark. 643, 262 S.W.2d 129 (1953); Terminal Oil Co. v. McCarroll, 201 Ark. 830, 147 S.W.2d 352 (1941).

Although not characterized as “estoppel” the first relaxation of the harshness of this doctrine by this court was expressed in the case of Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). In that criminal case, the appellant made an oral statement to the prosecuting attorney which implicated the appellant. In exchange for that statement, the prosecutor made a promise to the appellant that he would nolle prosequi the charge against her. The trial court refused her plea for immunity and we, in remanding, decided that she was entitled to a determination of whether or not the agreement, although unauthorized by the trial court, should be enforced on “equitable principles.”

Subsequently, in Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), we did specifically hold that estoppel is a defense which, in the proper case and under very limited circumstances, is available against governmental action. In Foote’s, we declined to overrule the earlier decisions denying the applicability of estoppel to governmental action but instead, provided a small crevice through which the proper facts might pass to create estoppel as a defense to governmental action.

As some justification for the granting of limited availability to the doctrine, we cited Gestuvo v. District Dir. of the U.S. Immigration & Nat. Serv., 337 F. Supp. 1093 (C.D. Cal. 1971), and quoted, with approval:

[T]he requirements of morals and justice demand that our administrative agencies be accountable for their mistakes. Detrimental reliance on their misrepresentations or mere unconscientiousness should create an estoppel, at least in cases where no serious damage to national policy would result ... the contrary conclusion [would] sacrifice ‘to form too much of the American spirit of fair play in both our judicial and administrative process.’

I am convinced that the facts of the present appeal fall within the exception which we recognized in the Foote’s case.

If the ordinance provision was one which could not be waived or varied except by passage of amendatory legislation, or one which permitted no exercise of discretion by the city, then estoppel would not be appropriate, but the relief sought by the appellant from Lake City — a variance from the requirements of the ordinance — is a relief which is within the power of the city to grant in the first instance. Under the facts of this case, the appellant, with the consent of the agents of the city, has built a structure that by its very nature is a non-conforming use. Not only was the structure built with the consent of the city’s agents charged with knowledge of and responsibility over this governmental function, but also the construction required their affirmative acts before proceeding.

In order to apply estoppel, four elements are necessary: (1) the party to be estopped must know the facts; (2) he must intend that his conduct must be acted on or must so act that the party asserting the estoppel has a right to believe the other party so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the other party’s conduct to his injury. Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983); see also Foote’s Dixie Dandy v. McHenry, supra. There being no appeal from the trial court’s finding of estoppel, we consider the above requirements to be established from the facts.

Without expanding the law enunciated in Foote’s Dixie Dandy v. McHenry, I would hold that the actions of the agents of Lake City and the appellant’s reliance thereon, bring this case within the limited exception first stated in Foote’s and would affirm the trial court’s finding that Lake City is estopped to deny the appellant’s right to the use of the involved property as a multifamily dwelling and reverse that part of the order which limits the variance to the period of occupancy by Jim Tom Stotts.

I respectfully dissent.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Noah Wayne RUSSELL v. STATE of Arkansas
    CR 89-177
    789 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Matthews, Sanders, Liles & Sayes, by; Roy Gene Sanders, for appellant.

      Steve Clark, Att’y Gen., by; Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of first degree murder and sentenced to life imprisonment. His appeal was never perfected. He filed a petition in the trial court for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The primary allegation in the petition is that appellant was denied effective assistance of counsel. The trial court denied the petition. We reverse and remand for a new trial because appellant was denied effective assistance of counsel.

Counsel is presumed to be competent. Ross v. State, 292 Ark. 663, 732 S.W.2d 143 (1987). Further, to prevail on an argument of ineffective assistance of counsel one must show not only that counsel’s performance in specific instances fell below an objective standard of competence, but also that errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). Prejudice in this context is defined as a reasonable probability that the proceeding in question would have turned out differently had counsel not made the errors in question. Strickland, id.; Ross v. State, 292 Ark. 663, 732 S.W.2d 143 (1987).

Alan Coggins was murdered on January 16, 1985. Six months later the police arrested Kenneth Armstrong on an unrelated charge and questioned him about the Coggins murder. Armstrong denied that he committed the murder, but said he saw the appellant do it.

Armstrong’s statement to the police was as follows: The day before the murder he and appellant had used his father’s twenty-gauge single-shot shotgun to hunt squirrels and, after they returned from the woods, he left the shotgun in appellant’s mobile home. The next day he returned to appellant’s mobile home around noon. About an hour later, Coggins drove up in a light blue Toyota automobile. Appellant told Armstrong to stay inside while he went out to meet Coggins. Appellant and Coggins began to argue about money, and Armstrong heard the appellant threaten to kill Coggins. He heard Coggins reply, “Go ahead.” Then appellant came back into the mobile home, got the twenty-gauge shotgun, and went back outside. Armstrong heard a shot, looked out a window, saw Coggins stagger and fall, and then saw appellant reload the shotgun and shoot Coggins in the head. He said that out of fear he helped appellant wrap Coggins’ body in a blue sleeping bag and lift it into the trunk of the Toyota. Armstrong then got in appellant’s car and appellant got in the Toyota, and they drove both cars to a remote area of Camp Robinson where they buried the body. They then drove both cars to a carwash near Lake Conway where they took the carpet out of the trunk, washed the trunk, and the outside of the Toyota. They then drove to Plummerville where they abandoned the light blue Toyota. Appellant subsequently drove Armstrong to a bar and left him there. Armstrong further stated that the next day he and appellant went to Coggins’ house, and appellant, not Armstrong, took various items of personal property, including a VCR camera.

After hearing Armstrong’s statement, the police arrested appellant. An information was subsequently filed, and attorneys Anthony J. Sherman and Jim Clouette were appointed to defend appellant. Clouette, the more experienced lawyer of the two, did not participate in the defense. Sherman met with appellant on either three or four occasions to discuss his defense.

At the post-conviction hearing, the appellant testified that, before his trial, he told Sherman that he was not guilty; that he was at work when the murder was committed; that Armstrong was probably the one who committed the murder; and that Armstrong’s statement could be attacked and put in doubt by witnesses Billy Caldwell and Ronnie Burchett. He described to Sherman how Billy Caldwell and Ronnie Burchett could cast doubt upon Armstrong’s statement. He said that he told Sherman that Billy Caldwell could testify that Armstrong had a “contract” to severely beat and injure Coggins. He further testified that Ronnie Burchett would have testified that, after the murder, Armstrong came to his house in the light blue Toyota and tried to sell him the VCR which came from Coggins’ house. Appellant testified that he wrote a summary of their testimony and gave that summary and their addresses to Sherman.

At trial Caldwell testified for the State, but Sherman did not cross-examine him about whether Armstrong had a “contract” on Coggins. Further, Sherman did not call Burchett as a witness.

Caldwell did not testify at the post-conviction hearing, and we consider appellant’s testimony about what Caldwell would have testified to, at best, disputed. However, we cannot so easily dismiss the claim about what Burchett’s testimony would have been at trial. At the post-conviction hearing Burchett testified under oath that, if he had been called, he would have testified as follows: At the time of Coggins’ murder, Coggins owed Armstrong money for some drugs and they were in a “conflict” about the money. A few months before the murder Armstrong attempted to sell a VCR camera to him. He knew the camera had been stolen from the Sears store in North Little Rock. Armstrong later traded the camera to Coggins for drugs. After the murder Armstrong drove Coggins’ light blue Toyota to Burchett’s house and, once again, tried to sell Burchett the same camera. Further, he tried to get Burchett, who was a car thief, to “dispose” of Coggins’ Toyota. Burchett’s roommate purchased the camera from Armstrong, and the police confiscated it. Most importantly, Burchett testified that in an unrelated murder, he went with Armstrong to dispose of the body, and Armstrong disposed of that body at Camp Robinson.

Sherman admitted at the post-conviction hearing that appellant had told him about the probable testimony of both Caldwell and Burchett; yet, Sherman did not offer any reason whatsoever for not cross-examining Caldwell about the “contract,” nor calling Burchett as a witness. Further, he apparently never talked to either of them before the trial.

If Caldwell and Burchett’s testimony had been presented at trial, it could have established that Armstrong had a motive to kill Coggins; that Armstrong, and not appellant, was in possession of Coggins’ VCR camera and his car after the murder; and that Armstrong used Camp Robinson for the burial of another person he had killed. Such testimony well could have created a reasonable doubt in the minds of the jurors.

Accordingly, appellant has overcome the presumption that he had effective assistance of counsel. He has shown that his counsel’s performance fell below an objective standard of competence, and that he was thereby prejudiced. Strickland v. Washington, supra.

Reversed and remanded.

Hays, Glaze, and Turner, JJ., dissent.

Justice Glaze would grant a belated appeal.

Steele Hays, Justice,

dissenting. Strickland v. Washington, 466 U.S. 668 (1984), places a heavy burden on an individual who seeks to set aside a conviction based on ineffectiveness of counsel. The convicted party must show that counsel’s performance was deficient and that counsel made such a serious error that he was not performing as counsel guaranteed by the Sixth Amendment to the United States Constitution. In sum, counsel’s deficient performance must prejudice the defendant’s case to the extent that he did not receive a fair trial and there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). I submit that appellant has failed to meet that burden.

At a lengthy Rule 37 hearing the trial judge, who also presided over the appellant’s trial, expressed his belief that the appellant had had “excellent representation” at his trial and that the evidence against him was “overwhelming.” Yet on the basis of a single witness, Ronnie Burchett, whose testimony the trial court obviously found lacking, and who had been serving in the penitentiary from before the appellant’s trial until and including the 37 hearing (part of that time with the appellant), the majority reverses the trial court’s finding that defense counsel was not ineffective. Furthermore, Burchett’s testimony is not corroborated by any credible proof and appellant’s contention that he told defense counsel, Anthony Sherman, what Burchett would testify to was not sustained by the findings of the trial court. On that meager basis the majority overrules the trial court, vacates a jury verdict over five years after the crime, so that the entire process, which has now involved the services of seven court appointed lawyers, can begin anew. I respectfully dissent.

Glaze and Turner, JJ., join in dissent.


author: Steele Hays, Justice. David Newbern, Justice,

text:
    Robert Lee BURNETT v. STATE of Arkansas
    CR 89-220
    790 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990
    [Rehearing denied June 11, 1990.]

      Sherman and James, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Robert Lee Burnett was convicted of the beating and stabbing death of Rhonda Dobson, a Brinkley, Arkansas convenience store clerk. Satisfied that an impartial jury could not be impanelled in Monroe County, the trial court granted a change of venue to Cross County, where Burnett was tried, convicted and sentenced to death. Evidence introduced by the state included a confession Burnett gave to the police shortly after his arrest, and the identification of Burnett by a customer, Ms. Barbara Kuykendall (now Mrs. Short), as the man she saw run from the store immediately after the murder.

Burnett appealed, insisting he was seized at his home in violation of the Fourth Amendment and that evidence obtained as a result of his seizure should not have been used against him. We reversed his conviction, upholding his contention that the confession and the lineup identification were acquired in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988). While we held the lineup was not suggestive, we could not determine whether the in-court identification of Burnett by Ms. Kuykendall was dependent on the lineup and, hence, unreliable. United States v. Wade, 388 U.S. 218 (1967).

On remand the trial court was instructed to conduct a pretrial hearing to determine whether the courtroom identification of Burnett was tainted by his illegal seizure. Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1979). That was done and the trial court allowed the courtroom identification by Mrs. Short. Robert Lee Burnett has again appealed from his conviction and life sentence without parole. His single argument for reversal is that the trial court erred in failing to suppress his identification as clearly tainted by the lineup procedures. Wong Sun v. United States, 371 U.S. 471 (1963). We affirm the judgment and sentence appealed from.

At the suppression hearing following remand, Mrs. Short testified that at about 3:30 a.m. on July 10, 1986, she was seated in a pickup truck parked at the gas pumps of the convenience store. She was about twenty-five feet away from the entrance. She said a man suddenly emerged and ran from the store, jumped a nearby fence and disappeared. She described him as black, about 5’4” tall, wearing shorts or “cut-offs” and no shirt. He was “pretty slim” and the lower part of his face was thin, with a pointed chin. She identified Robert Burnett as the man she had seen. Robert Burnett did not testify at the hearing or at the trial. We are asked to overrule the trial court’s denial of the motion to suppress Mrs. Short’s courtroom identification of Robert Lee Burnett as the man who ran from the shop. For reasons to be stated we decline that request.

While we held in Burnett I that the lineup itself was not unduly suggestive, we left open the question of whether Mrs. Short’s identification of Burnett before the jury on retrial was reliably based on her observations at the convenience store or her observations of him at the lineup, admittedly an inexact analysis.

In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court listed a number of factors to be considered in determining whether the means by which witnesses may have acquired their observations or information are sufficiently distinguishable as to be purged from the taint of an earlier illegality. Wong Sun v. United States, 371 U.S. 471, 488 (1963). The conclusion to be drawn from those and other relevant factors is dependent on the totality of the circumstances and even though prior identification may have been improper or suggestive, an in-court identification will not be suppressed if indicia of reliability are found to independently exist. Manson v. Brathwaite, 432 U.S. 98 (1977).

The factors mentioned in United States v. Wade, supra, include the following: the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. at 241. A factor noted in Neil v. Biggers, 409 U.S. 188 (1972), is the degree of certainty which a witness professes to possess that the perpetrator and the defendant are the same individual.

We have applied those and other relevant factors frequently since Wade was decided: See, e.g., Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988); Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987); Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984); Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983).

Applying those factors to the instant case we note that Mrs. Short testified that she and the perpetrator looked directly at each other when he emerged from the store, that the lighting was good and there was nothing to obstruct her view. Moreover, her attention was heightened by the fact that she knew from his manner that “something was wrong.” She watched the man run to an adjacent fence and jump over it. She described him to police as 5’4” or 5’5” and compared it to her own height of 5’3”. She said he wore shorts of some kind, was shirtless and barefooted. His left hand was inserted inside a white sock and in his right hand he grasped a brown paper sack. Mrs. Short said the man was “pretty slim,” with a thin face and a pointed chin. It was this latter facial characteristic that Mrs. Short found most distinctive. Finally, she professed to entertain “no doubt at all” that Robert Burnett was the man she saw running from the convenience store.

The trial court evidently found Mrs. Short to be a credible witness and we take no exception. She did not hesitate to decline to supply information she did not possess or could not recall and readily admitted testimony from the previous hearing which the defense elicited. Clearly, she had some uncertainty as to the height of the man she saw, but by no means would that sort of discrepancy work to suppress her identification. See Burnett I, 295 Ark. at 410.

In sum, Mrs. Short had an unobstructed, direct view of the perpetrator under well-lighted conditions. She and the man made eye contact and her attention was keyed to her awareness that something unusual had occurred inside the store. There was a lapse of only a few hours between her observations at the scene and the lineup. Her description of the man she saw was an apt description of Robert Burnett. She admitted to no uncertainty as to her identification. Thus we cannot say the finding of the trial court is clearly erroneous, nor can we find a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

We do not discount appellant’s argument that Mrs. Short was permitted to observe Burnett alone before the lineup and her own acknowledgement, as appellant construes it, that her identification of Burnett was based on her observation of him at the lineup. We disagree that either point dictates reversal. As to the latter contention, Mrs. Short’s cross-examination does, at least ostensibly, support the argument. But when her testimony in its entirety is read, we conclude that she did not understand the distinction the law makes between her observation of the defendant at the lineup as opposed to her avowed observation of him at the convenience store. We quote from the pertinent testimony in its entirety:

Q: Do you recall testifying at a pretrial hearing a couple of years ago?
A: Yes.
Q: Do you recall that?
A: Yes.
Q: And you were under oath, correct?
A: Yes.
Q: And you swore to tell the truth, correct?
A: Right.
Q: Do you recall a question being asked by the Prosecutor, let me ask you this, Mrs. Warren, when you identified him a moment ago for the Court, was your identification based on what you remember seeing of him coming out of the store or what you remembered from the lineup?
A: Yes.
Q: Do you remember that question?
A: Yes, I do.
Q: What was your response under oath, if you recall it?
A: I told him it was from the lineup.
Q: It was like picking him out of the lineup. Is that what you said at that pretrial hearing?
A: Yeah, because I remember his features and face.
Q: But your testimony at pretrial a couple of years ago was you remembered him as a result of picking him out of the lineup. Correct?
A: That’s right.
Q: And does that still hold true today?
A: Well, the thing that stuck in my mind about this guy — Q: Slim face?
A: Yeah, that’s correct.

While we concede the ambiguity in this brief segment of Mrs. Short’s testimony, we do not concede that she intended to say that she remembered Burnett because of the lineup and not because of the earlier contact. Indeed, the question itself was artfully limited to whether she remembered Burnett “as a result of picking him out of a lineup,” omitting any qualifying words such as “rather than from the crime scene.” It is not surprising that a lay witness fails to understand the differentiation between the two observations which the law attempts to impose under the Wade principle. Arguably such a distinction may well be a practical impossibility. See concurring/dissenting opinion of Justice Black, United States v. Wade, 388 U.S. at 248. (“How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a courtroom identification due to memory not based on the lineup?”) We will not attempt a more definitive answer to the argument except to note that the trial judge, who heard the questions and the responses, as well as the inflections and demeanor, as they occurred, did not sustain that interpretation of Mrs. Short’s testimony.

The other point is of greater concern. Mrs. Short said that just before the lineup, she, her husband to be, his mother and another woman, whose name she did not know, were instructed by a police officer to walk past a room, to glance in but not stare. They did as instructed and she saw Robert Burnett alone in the room. They were not told that the man in the room was a suspect.

Neither the state nor the defense probed into this novel incident, nor made any attempt to find an explanation. No other witness was asked about it and neither side alluded to it in closing argument at the end of the hearing, though other points were argued in some depth. In short, while we are at a loss to explain it or to determine whether its purpose was proper or improper, we conclude that it must be weighed with the other factors in determining whether Mrs. Short’s identification is to be sustained. On balance, we are persuaded the ruling of the trial court was not clearly erroneous because of her avowed certainty and because her initial description of the perpetrator bears a clear resemblance to the height, build and facial characteristics of Robert Burnett.

In reaching that result we note that courts generally have not been intolerant of the occasional confrontation or contact between a single suspect and a witness even when it occurred needlessly or unnecessarily. In Neil v. Biggers, supra, the suspect alone was viewed with two detectives by the victim and instructed to say “Shut up or I’ll kill you.” In Stovall v. Denno, 388 U.S. 293 (1967), the suspect was brought to the victim’s hospital room handcuffed to a detective. He was the only black man in the room. In Manson v. Brathwaite, supra, the witness identified the defendant from a single photograph, with no explanation offered for the failure to utilize a lineup or a photographic array. Yet in these and factually similar cases the courtroom identification was upheld. Perhaps the only case to the contrary is Foster v. California, 384 U.S. 440 (1969), where the witness failed to identify Foster from a lineup, or except tentatively from a subsequent showup. Not until a third lineup was conducted was the witness able to muster a definite identification. As this court observed in Robinson v. State, 293 Ark. 51, 732 S.W.2d 159 (1987), “as the trial court stated in Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984), the appellate court does not inject itself into the process of determining reliability unless there is a very substantial likelihood of misidentification.” We do not detect such a likelihood in this record.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

For the reasons stated, the judgment and sentence are affirmed.

Dudley, Newbern, and Price, JJ., dissent.

David Newbern, Justice,

dissenting. Before approving a judgment which will put Robert Lee Burnett in prison for life without parole, we must decide whether the state presented clear and convincing evidence that the identification of him as the culprit by Barbara Short was reliable. See Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971). The evidence on that issue consists of Mrs. Short’s testimony and that of Officer Max Storey who was acting chief of police at Brinkley who participated in the investigation of the crime.

From our first opinion in this case it can be determined that Mrs. Short was unable to identify Burnett’s photograph at the police station shortly after she had seen a black male, without shirt or shoes, running from the crime scene. She did, however, pick him out when a line-up was conducted and later identified him positively at the trial. While looking at the photographs she seemed to look more often at the picture of Burnett. On that basis, officers illegally seized Burnett at his home and brought him to the police station. We reversed and remanded the case with instructions to the trial court to determine before a second trial whether Mrs. Short’s identification at the trial was based on her remembrance of what she saw at the crime scene or what she saw at the line-up.

During the pre-trial hearing before the second trial, a brand new factor appeared. Before the line-up took place, Mrs. Short was told to look into a room where Burnett was seated, without shirt or shoes, and to be inconspicuous about it. She then identified Burnett in the line-up and at the first trial. Her testimony at the second trial recalled that at the first trial she had admitted that her identification was based on her having seen Burnett at the line-up as opposed to the crime scene. Officer Storey stated during the pre-trial hearing that, based on his knowledge and experience in interviewing Mrs. Short, her identification of Burnett came from the line-up and the pictures.

If there is a level of suggestiveness, resulting in an identification, so great as to make irrelevant whatever the witness might say later, it has been reached in this case. This was not an instance of inadvertent suggestion by the police that Burnett might be the one to be identified. It was a blatant effort by the police to see to it that Burnett was picked out of the line-up by Mrs. Short. There is no other explanation for the surreptitiously ordered “preview.”

For the proposition that the state “may not use an in-court identification by witnesses whose testimony had been tainted by unconstitutionally conducted and impermissively suggestive procedures,” Burnett cites Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1983). That case, an affirmance, does not so hold, but our opinion did make reference to a “constitutionally infirm line-up procedure.” The leading case on the subject is Foster v. California, 394 U.S. 440 (1968), in which the Supreme Court reversed a conviction, holding that the accused’s right to due process of law had been violated by an impermissibly suggestive line-up identification procedure.

In the Foster case, the witness had been unable to identify Foster in a line-up although Foster stood out by being considerably taller than the others and was wearing a jacket like one known to have been worn by the robber seen by the witness. The police then brought Foster into a room with the witness and sat him down across a table. The witness was still unable to identify him. Ten days later, another line-up was conducted, and Foster was the only participant who had been in the first line-up. The witness identified him positively. The Supreme Court simply reversed the conviction on the due process ground without going into a totality of the circumstances analysis despite a strong discussion of it in Mr. Justice Black’s dissenting opinion.

While the police misconduct in this case may not have been in some ways quite as bad as in the Foster case, in a sense it was worse because in the Foster case it seems to have been at least open and perhaps even unknowing. Here it was obviously hoped that no one would discover the suggestion made to the witness. It particularly troubles me that the majority opinion suggests that there might have been some “proper” purpose in having the witness look at Burnett sitting alone in a room clothed, or unclothed, as the murderer was reported to have been on the night the crime was committed. What might that proper purpose have been?

On at least two occasions we have cited the Foster case for the proposition that, “[i]f there are suggestive elements in the before-trial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process.” Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). While that statement was an obiter dictum in each of those cases, it was the holding of the Foster case, and if it has any meaning whatever, it should be the holding here.

In United States v. Wade, 388 U.S. 218, 229-230 (1967), the Supreme Court observed:

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.” Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, “ [i] t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” [Footnotes omitted.]

Mrs. Short testified she saw Burnett for two or three seconds at the crime scene. Her opportunity for observation was thus insubstantial. Her susceptibility to suggestion, therefore, in the words of the opinion in Foster v. California, supra, “the greatest.” That is demonstrated by the fact that her identification clearly crystalized as the result of her being sent to view Burnett, dressed as the probable culprit was dressed when observed apparently just after the crime had been committed, before she viewed the line-up. Burnett should not have been convicted on the basis of Mrs. Short’s identification testimony which was prompted by a highly improper suggestion. There was no other basis for the conviction.

I respectfully dissent.

Dudley and Price, JJ., join this dissent.

       Ms. Kuykendall became Mrs. Short between the two trials in this case.

       White socks of similar, but not identical, weave were found at the scene and in the garbage can at Burnett’s house.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Robert v. JOHNS, et al.
    90-82
    789 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990
    [Rehearing denied June 11, 1990.]

      Robert L. Wilson, Philip N. Gowen, and Charles Johnson, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd; and Dan Boland, Pulaski Bank & Trust Company, for appellees.

      Glaze and Price, JJ., would grant rehearing.

   David Newbern, Justice.

In this condemnation action, the trial court set aside its judgment based on a jury verdict and ordered a new trial. The Arkansas State Highway Commission appeals from the decision. The new trial was granted because a mortgagee of the condemned land, Pulaski Bank and Trust Co. (Pulaski Bank), was not named in the original pleadings as a party to the action until after a jury verdict. We reverse because we find Pulaski Bank waived its right to object to the commission’s failure to name it a party at the outset of the action.

The commission brought this action to acquire .3 acres in fee simple absolute and an easement on .9 acres of land owned by Robert V. and Deborah A. Johns for the purpose of widening State Highway 10 in Pulaski County. The complaint named the Johnses and First State Bank and Trust Co. as defendants. The First State Bank and Trust Co. answered that it no longer had a security interest in the land and did not participate further. The Johnses answered that security interests in the land were held by First Federal Savings and Loan Association (First Federal) and Pulaski Bank. The commission moved for a continuance to give it time to make Pulaski Bank and First Federal parties to the action.

The parties conferred with the court in camera, and it was then stipulated between the Johnses and the commission that they were willing to go to trial without First Federal and Pulaski Bank being made parties.

The Johnses presented evidence that they had built a 7000 square foot house on their property with a swimming pool and tennis courts. When they purchased the land and built their house, trees shielded them from Highway 10. The construction on the highway had brought it closer to their property and had destroyed the trees which once protected them, to a degree, from the sight and sounds of the highway.

One expert presented by the Johnses testified their damages were $138,500, and another estimated the figure at $149,125. Robert V. Johns testified the value of their property had decreased by at least $225,000. Deborah A. Johns testified she estimated the reduction in value to be a least $200,000. Two appraisers testified for the commission. One said the just compensation to the Johnses would be $12,500, and the other said $12,000.

The jury awarded the Johnses $22,500 on March 23, 1989. On the following day, March 24, Pulaski Bank filed its entry of appearance and waiver of service of process. The pleading stated Pulaski Bank wished to be compensated for its interest in the case and “to join in the entry of the final judgment herein.” Final judgment was entered on the jury verdict on April 14, 1989.

On July 7, 1989, almost three months after the judgment was entered, Pulaski Bank moved to set the judgment aside on the ground that it was not made a party to the action until after the trial and thus the judgment was not binding upon it and the condemnation had not been effectively completed.

The court ordered the judgment set aside pursuant to Ark. R. Civ. P. 60, referring to the motion and the court’s “own motion,” and ordered a new trial “to prevent a miscarriage of justice.” The order recited that Pulaski Bank was a necessary party to the action and had not been given the benefit of appearing at trial “which has prejudiced their rights and has resulted in a taking and impairment of diminution of the mortgaged collateral.”

1. Setting the judgment aside; appealability

The court undoubtedly has authority to set aside its judgment, pursuant to Rule 60, within 90 days after the judgment is entered. Pulaski Bank contends that its order doing so is not appealable because it is not a final order. Be that as it may, the court went further than setting the judgment aside and ordered a new trial. An order granting a new trial is appealable. Ark. R. App. P. 2.(a)3.

2. Waiver

In the ordinary case, the question becomes whether the trial court abused its discretion in granting a new trial. In this case, however, Pulaski Bank, by asking to join in the final judgment, waived its right to present evidence beyond that which had been presented by the Johnses. It is hardly in a position to claim the trial court properly exercised its discretion in ordering a new trial.

Pulaski Bank’s entry of appearance on the day after the jury returned its verdict contained no request for a new trial or to present evidence in the matter. While it is true the record contains no direct evidence that Pulaski Bank knew the verdict had been reached, its request to join in the “final judgment” suggests such knowledge. Once the bank became a party to the litigation it had a duty to inform itself about the status of the case. See Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Midwest Timber Products Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932). Pulaski Bank did nothing in the three weeks after it entered its appearance and before the judgment was entered. We hold Pulaski Bank waived its right to seek a new trial for the purpose of presenting evidence in the case, and thus the court abused its discretion by granting a new trial in these circumstances.

3. The judgment

The judgment mentions First State Bank and Trust Co. and First Federal of Arkansas as parties defendant along with the Johnses. The fact that Pulaski Bank was not included in the judgment as defendant was not mentioned by any party on appeal. Presumably the failure to include Pulaski Bank in the judgment was inadvertent, and the mistake can be corrected on remand.

Reversed and remanded for orders consistent with this opinion.

Glaze and Price, JJ., dissenting.

Tom Glaze, Justice,

dissenting. I respectfully disagree with the majority’s holding. Under Ark. R. Civ. P. 60(b), a circuit court may set aside its judgment in order to prevent a miscarriage of justice if the court does so within 90 days from the filing of the judgment. In fact, the court may take such action with or without notice to the parties. As is reflected in the Reporter’s Notes to Rule 60, this rule gives relatively unlimited control to the circuit court over its judgments. Of course, after the 90 day period expires, the court’s power to modify or set aside its judgments is limited by the reasons set out in Rule 60(c).

In the present case, the trial court, acting within 90 days of entering its judgment, set the judgment aside, stating that the Pulaski Bank and Trust Company was a necessary party to the suit between the Johnses and the Arkansas State Highway Commission, and the Bank had not been given the benefit of appearing at trial. The court added that the Bank’s rights had been prejudiced and its mortgaged collateral (Johnses’ property) had been impaired. As the majority opinion states, the Johnses and the Commission agreed to try their case without making the Bank a party. From the abstract of record, it appears the Bank was never made a party, and it is also void of anything that reveals the Bank knew of the pending suit even though the Bank clearly had a stake in it.

After the parties tried their suit and a jury verdict was rendered, the Bank apparently became aware of the suit and entered its appearance with the expressed purpose to join in the entry of the court’s final judgment. However, nowhere is it revealed in the record that the Bank ever approved, or was made a party to, the judgment. Instead, the Bank subsequently moved to set the judgment aside, which the trial court did.

My main disagreement with the majority is, I surmise, with its belief that the Bank waived its rights because the Bank entered its appearance after the jury trial was completed. As already mentioned, the Bank had never been notified of the filing of the suit and, once the suit was tried, nothing the Bank could have done could have ameliorated the prejudice it already had suffered. Likely, this is the reason the Bank never approved the judgment entered in this matter and was omitted in the judgment as having been a party to the action. Regardless, the Bank was unquestionably a necessary party to this suit and it was never made party to it by the Commission or the Johnses. In my view, the Bank has never been shown to waive any right, much less its right to participate at the jury trial conducted in this case. Thus, I cannot say the trial court abused its discretion when it vacated its judgment. The Commission simply failed to meet its burden in showing otherwise.

I would affirm.

Price, J., joins this dissent.