author: J IM PlANNAH, Justice.

text:
    FOREMAN SCHOOL DISTRICT NO. 25 v. Leo Pat STEELE
    01-543
    61 S.W.3d 801
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Lavender & Barnette, PLC, by: Shannon Tuckett and G. William Lavender, for appellant.

      John W Walker, P.A., for appellee.
   J IM PlANNAH, Justice.

Appellant Foreman School District No. 25 (the District) appeals the Little River County Circuit Court’s summary judgment in favor of Appellee Leo Pat Steele in a breach of contract claim where the District failed to pay Steele for a year’s employment after improperly attempting to nonrenew his contract. This case calls for the interpretation of the 1994 version of the Arkansas Teacher Fair Dismissal Act (“TFDA”).

In 1993, the District hired Steele to be the high school principal for the 1993-1994 school year. His one-year contract began on July 1, 1993, at an annual rate of $40,000. Because Steele was a first-year employee, he was a “probationary teacher” as defined by the Arkansas Teacher Fair Dismissal Act (“TFDA”).

On March 22, 1994, Foreman School District Superintendent Sam Pickle mailed Steele a notice that Pickle was going to recommend nonrenewal of Steele’s contract for the 1994-1995 school year, citing various management and disciplinary problems Pickle saw in Steele’s operation of the high school. Steele received the notice on or about March 24, 1994.

On April 21, 1994, Steele hand-delivered a response letter to the school board president requesting a hearing on Pickle’s recommendation. Steele indicated in his letter that he had requested information regarding Pickle’s grounds for his decision not to recommend renewal of his contract, and noted that he had not received the information at that time. He further requested five days from the time he received that information until a hearing to get prepared.

Pursuant to the terms of the TFDA, the school board was required to hold a hearing within ten days, but no sooner than five days, from Steele’s request for a hearing. The parties did not agree to postpone the hearing beyond the ten-day period, and the hearing was not scheduled or held before May 2, 1994, the tenth day after Steele’s request for a hearing. In fact, a hearing was not held until May 6, 1994. At the hearing, Steele objected to the hearing being held outside the ten-day period, noting that the school board’s failure resulted in an automatic renewal of his contract for the 1994-1995 school year. The board disagreed, and then acted upon Pickle’s recommendation not to renew Steele’s contract. The school board hired a new principal for the 1994-1995 school year.

Steele filed a complaint in federal court two years and nine months later alleging that his contract was not renewed because he supported a black counselor who had been terminated by the school district. He also alleged that his nonrenewal violated the terms of the TFDA. A jury trial was held on the discrimination issue, after which the jury returned a verdict in favor of the school district. The federal district court, however, dismissed without prejudice Steele’s TFDA issues and gave Steele thirty days to file that claim in state court.

Within thirty days, Steele filed a complaint in state court on October 7, 1998. Steele alleged in his complaint that the school breached the employment contract that was renewed when the District improperly proceeded on his nonrenewal hearing. Specifically, Steele noted that the District did not strictly comply with the TFDA, which requires that a hearing be held within ten days of his request for that hearing, thus causing the nonrenewal action to be void.

The District filed its answer on November 9, 1998. The District then filed a motion for summary judgment on January 27, 1999, arguing that Steele, as a probationary teacher, could not appeal the school board’s decision of nonrenewal, that the circuit court did not have jurisdiction to hear an appeal from a school board’s decision of nonrenewal, that even if Steele could appeal his action was barred under the seventy-five-day limitations period under the TFDA, and that he has no breach of contract claim because no contract existed. Steele responded to the District’s motion for summary judgment and filed a cross-motion for summary judgment on February 22, 1999. Steele argued in his motion that the District was required to strictly comply with the TFDA in order to nonrenew his contract, and the District’s failure to strictly comply with the Act’s terms rendered the District’s attempts to nonrenew his contract void. As such, his contract was automatically renewed under the terms of the TFDA, and the District’s resulting failure to pay Steele’s salary was a breach of his employment contract. The District replied on August 25, 1999.

A hearing was held on these motions on September 7, 1999, and the trial court entered its order on January 12, 2000. The court found that Steele’s claim was based on the theory of breach of contract because the school board’s attempt to nonrenew Steele’s contract did not strictly comply with the terms of the TFDA, thus rendering the nonrenewal attempt void. As such, Steele’s contract was automatically renewed, and the District then failed to honor that contract.

The District moved for reconsideration on March 30, 2000, and Steele responded to that motion on April 18, 2000. A hearing was held on April 18, 2000, on the issue of damages. The District also filed a posttrial brief on April 28, 2000, contending that the trial court’s decision that Steele was entitled to his $40,000 salary was in error because Steele did nothing to mitigate his damages. On October 11, 2000, the trial court issued a letter opinion, and on October 18, 2000, a final judgment, finding that the District owed Steele his contract salary of $40,000 reduced by $5,486 as the amount of wages earned by Steele as mitigation. The District filed its notice of appeal on November 17, 2000, from the final judgment issued on October 18, 2000.

This matter is here as an appeal from summary judgment. It is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712 (1998) (quoting Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997)); Pugh v. Griggs, 327 Ark. 577, 824 S.W.2d 387 (1992). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. As we further explained in Wallace, we will not engage in a “sufficiency of the evidence” determination. We have ceased referring to summary judgment as a drastic remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Id.; Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

On appeal, the District again raises its arguments from its motion for summary judgment. Specifically, the District argues that Steele, as a probationary teacher, could not appeal the school board’s decision of nonrenewal, that the circuit court did not have jurisdiction to hear an appeal from a school board’s decision of nonrenewal, that even if Steele could appeal his action was barred under the seventy-five-day limitations period under the TFDA, and that he has no breach of contract claim because no contract existed. Steele responds that he is not litigating the “nonrenewal” of his contract because that action, being void, never took effect. Rather, Steele notes that he is litigating a breach of his contract because the contract was automatically renewed. Steele notes that the standard of compliance is strict compliance, and that the 'District did not strictly comply with the Act. Therefore, what was before the circuit court and what is before this court is a simple breach of contract claim. Furthermore, Steele notes that his complaint was not barred by the seventy-five-day limitation because he was a probationary teacher, not a nonprobationary teacher. Therefore, he is only bound by the five-year statute of limitation for breach of a written contract.

The TFDA, codified at Ark. Code Ann. §§ 6-17-1501 — 6-17-1510 (Repl. 1993), has been the subject of several changes over the last few years. However, because the acts that give rise to this case took place in 1994, that version of the TFDA applies. In the 1994 version of the TFDA, Steele was a “probationary teacher,” which is defined in section 6-17-1502(a)(2) as:

(2) “Probationary teacher” means a teacher who has not completed three (3) successive years of employment in the school district in which the teacher is currently employed.

In section 6-17-1503, the General Assembly laid out the construction of the statutory scheme, noting that:

This subchapter is not a teacher tenure law in that it does not confer lifetime appointment nor prevent discharge of teachers for any cause which is not arbitrary, capricious, or discretionary. A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.

(Emphasis added.) Furthermore, section 6-17-1506 notes that a teacher’s contract can be renewed automatically “unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed. ...” Finally, if a teacher has been notified that his contract will not be renewed, that teacher can file a written request for a hearing with the school board. Ark. Code Ann. § 6-17-1509(a). Upon receipt of that request, the school board must grant a hearing no sooner than five days nor more than ten days after the request has been served, unless the teacher and board mutually agree in writing to postpone the hearing to a later date. Ark. Code Ann. § 6-17-1509(c)(l).

Our case law has interpreted these statutory provisions in several cases. In certain cases prior to 1989, we held that substantial compliance with the notice requirements sufficed. See, e. g., Murray v. Altheimer-Sherrill Pub. Sch., 294 Ark. 403, 743 S.W.2d 789 (1988); Lee v. Big Flat Pub. Sch., 280 Ark. 377, 658 S.W.2d 389 (1983). However, in 1989 the General Assembly enacted Act 625 which amended the TFDA and added this sentence to Ark. Code Ann. 6-17-1503:

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.

(Emphasis added.)

Under the TFDA, nonrenewal of a contract is void unless procedures are strictly followed. Ark. Code Ann. § 6-17-1503; Western Grove School Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). Strict compliance can be waived, however, by express agreement in writing between the teacher and the school board. Lester v. Mount Vernon-Enola School Dist., 323 Ark. 728, 917 S.W.2d 540 (1996).

Based on these statutes and cases, it is clear that the District’s attempts to nonrenew Steele’s contract are void because the District did not stricdy comply with the TFDA. Specifically, the District’s failure to hold a hearing within ten days of Steele’s written request for a hearing render the District’s actions void. While the District briefly argues that Steele waived his right to a hearing within the required time by requesting that he have five days in advance of the hearing to prepare with documents he had not received, this request does not meet the statutory requirement that a hearing delay be expressly agreed upon in writing by the teacher and the school board. The TFDA requires that if a hearing is to be postponed to a later date, the teacher and board must agree “in writing” to such a postponement, presumably so this exact issue will not arise. See Ark. Code Ann. § 6-17-1509(c)(l). Steele’s request does not qualify as a “waiver” of the ten-day requirement because the school board could have still complied with this request within the ten day period required by the statute. It merely failed to do so. Furthermore, we have discussed “waiver” in the context of a TFDA case in Lester, supra, and stated:

In every case of which we are aware, we have held that a waiver of a right requires knowledge of that right on the part of the party alleged to have waived it. In Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), we quoted from Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), our standard statement on the subject as follows:
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely on that right. . . . The relinquishment of the right must be intentional. . . .
That case involved waiver of the right to alimony by failure to request it. Other cases in which we have uttered the same or similar language in various contexts include Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Worth v. Civil Service Comm’n, 294 Ark. 643, 746 S.W.2d 346 (1988); and Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982).
While there is evidence that Mr. Lester knew of some, if not most, of his rights under the Act, we have carefully combed the record for any evidence that he was aware of his right to have the hearing no fewer than five days after his request. We found no such evidence.

Lester, 323 Ark. at 732. In this case, there is no evidence that Steele knew of his ability to waive the right to a hearing within ten days and that his letter asking for five days from the receipt of his requested information, which he had been waiting on for up to a month, was any attempt to ask for a continuance. The District could have complied with his request within time to still hold a hearing within ten days. This the District did not do. Therefore, the District’s waiver argument is meritless because of the lack of a mutual agreement in writing to delay the hearing.

Because the District’s waiver argument fails, the District’s failure to strictly comply with the TFDA by not holding a timely hearing rendered its attempts to nonrenew Steele’s contract void. See Western Grove School Dist, supra. In Western Grove School District, this court held that that school district’s attempts to “reassign” a teacher at a different position at lower wages was actually a nonrenewal. Therefore, because the school district did not follow the notice requirements necessary for effectuating a nonrenewal, the entire attempted action by the school district was void, and the teacher was reinstated into the position under the terms of the original contract because it was automatically renewed. Id.

Here, because the attempted nonrenewal did not strictly comply with the terms of the TFDA, the action became void, and on May 1, 1994, Steele’s contract was automatically renewed under the terms of his original contract. At that point, the District could have instituted suspension or termination proceedings, but it did not. As such, Steele was a contracted probationary teacher for the 1994-1995 school year.

The District alleges that this action is controlled by the TFDA, which does not allow an outside breach-of-contract claim. However, the District’s failure to strictly comply with the TFDA’s terms rendered the District’s actions void, and takes this lawsuit outside the confines of the TFDA. This is not an appeal from the decision for nonrenewal, which would require us to consider the viability of an appeal by a probationary teacher. Rather, the resulting breach became an original cause of action properly filed in circuit court.

Because the attempted nonrenewal was void and Steele was under a new, identical contract for the 1994-1995 school year, the District breached Steele’s contract by failing to reinstate him or pay him his salary. “A person may be liable for breach of contract if the complaining party can prove the existence of an agreement, breach of the agreement, and resulting damages.” Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 231-232, 33 S.W.3d 128 (2000); Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 298, 948 S.W.2d 388, 395 (1997); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). Breach of a written instrument or contract is controlled by a five-year statute of limitations. See Ark. Code Ann. § 16-56-111 (Supp. 2001). Here, because the contract was automatically renewed by statute, there is no doubt that a contract existed. And failure by the District to comply with a term of the contract, i.e., paying Steele’s salary, clearly became a breach of that contract. Certainly, although Steele waited over four years to file the state-court action, he was still within his five-year time limit to file a breach-of-contract claim. As such, we find that the trial court did not err in granting summary judgment in favor of Steele.

Affirmed.

IMBER, J., not participating.

       The Arkansas General Assembly amended Ark. Code Ann. § 6-17-1503 in Act 1739 of 2001 to require only “substantial compliance” with the TFDA.

       The argument that the trial court made an impermissible finding of fact on waiver in its summary judgment was not raised by the District and is not before us.

       The 1994 and current version of the TFDA do not address appeals from a school board’s decision involving a probationary teacher, only those regarding the dismissal of a nonprobationary teacher, who does have the right to appeal the school board’s decision. Fiowever, this court has decided the issue of an appeal by a probationary teacher in a nonrenewal case in McGee v. Amorel Public Schools, 309 Ark. 59, 64, 827 S.W.2d 137 (1992), in which this court stated, “As a probationary teacher, McGee does not have a statutory right to appeal to circuit court the school board’s decision of nonrenewal of his contract.” However, the distinction here is that Steele is not appealing the decision of nonrenewal, but is instead pursuing his common-law breach-of-contract claim.


source: Caselaw Access Project

author: J IM HANNAH, Justice. R AY Thornton, Justice, R OBERT L. BROWN, Justice, A NNABELLE Clinton Imber, Justice,

license: Public Domain

text:
    R.N. v. J.M. and B.M.
    01-174
    61 S.W.3d 149
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001
    [Petition for rehearing denied January 10, 2002.]

      Barrett & Deacon, A Professional Association, by: D. Price Marshall Jr. and James F. Gramling, Jr., for appellant.

      Goodwin, Moore, Colbert, Broadway & Gray, LLC, by: Harry Truman Moore and Mary L. Broadway, for appellees.
   J IM HANNAH, Justice.

Appellant R.N. appeals the decision of the Craighead County Chancery Court denying his petition to establish paternity of a minor child, A.M., who was born to Appellee J.M. during her marriage to Appellee B.M. J.M. and B.M. are still married. In this appeal, we are asked to interpret and harmonize Ark. Code Ann. §§ 9-10-104 (Repl. 1998 and Supp. 2001), 9-10-108 (Repl. 1998 and Supp. 2001), and 16-43-901 (Repl. 1999), which deal with the estabhshment of paternity.

The facts of this case are essentially undisputed. J.M. and B.M. were married in 1992 and are still married. Between late 1996 and early 1997, J.M. and R.N. were involved in an ongoing sexual relationship. During this period of time, J.M. continued to have sexual relations with her husband, B.M. J.M. gave birth to a child, A.M., on August 17, 1997. A.M. has lived with J.M. and B.M. since her birth. While R.N. claims that J.M. told him that “she was 99 percent sure the child was his,” J.M. claims she only said “it was like 95 percent sure” that R.N. was the father of the child. Although R.N. has not established a relationship with A.M., he testified that he wanted to establish a relationship with the child, but that J.M. would not allow him to see her. Since A.M.’s birth, R.N. has seen the child on two occasions, once at J.M.’s home and again at R.N.’s office.

On April 7, 1998, R.N. filed the petition for paternity, and on April 20, 1998, he filed a motion for paternity testing pursuant to Ark. Code Ann. § 9-10-108. J.M. responded denying that R.N. is A.M.’s father and moved to dismiss the action on three grounds: (1) R.N. lacked standing because A.M. is presumed to be legitimate, and the Arkansas paternity statutes only apply to illegitimate children; (2) R.N. has no constitutionally protected interest because he has not established a relationship with A.M.; and (3) R.N. should be equitably estopped from bringing the paternity action because he waited until A.M. was almost nine months old before filing the paternity action.

After a hearing on August 31, 1999, the chancellor granted J.M.’s motion to dismiss R.N.’s petition for paternity. In the order entered on August 15, 2000, the court found that as a matter of law R.N. lacked standing to bring the paternity action and that he is equitably estopped from bringing the action. The trial court also adopted as its conclusions of law the legal arguments in J.M.’s motion to dismiss and brief in support of the amended response to the motion for paternity testing. The pleadings were incorporated by reference in the court’s order.

I. Standing

In his first point on appeal, R.N. argues that section 9-10-104 of the Arkansas paternity statutes grants him standing and that section 9-10-108 requires the trial court to order paternity or DNA testing upon motion of either party. See Ark. Code Ann. §§ 9-10-104 and 9-10-108. In response, J.M and B.M. contend that R.N. lacks standing under section 9-10-104 because that section grants standing to a putative father only when the child is illegitimate, and A.M. is presumed to be legitimate as she was conceived and born during marriage. J.M. and B.M. further assert that paternity testing should be controlled by Ark. Code Ann. § 16-43-901, which permits the trial judge to order paternity testing if the judge concludes such testing is in the child’s best interest. R.N. responds that section 9-10-104 specifically grants a putative father the right to petition to establish paternity even when the child is presumed legitimate. He states that even though being conceived and born during marriage creates a presumption of legitimacy, that presumption is rebuttable by evidence of impotency, lack of access between husband and wife, or genetic testing. R.N. argues that the use of the phrase “the trial court shall order” in section 9-10-108 makes genetic testing mandatory upon either party’s motion. He relies on our canon of statutory interpretation that a general statute must give way to a specific statute to support his contention that the mandatory language of section 9-10-108 controls because it is specific to a paternity action; whereas, the permissive language in section 16-43-901 is general in that it applies to any court action.

The resolution of the question of R.N.’s standing to petition for paternity requires us to interpret the Arkansas paternity statutes. We review issues of statutory construction de novo because it is our responsibility to determine what a statute means. Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001) (citing Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000) and Hodges v. Huckahee, 338 Ark. 454, 995 S.W.2d 341 (1999)). While we are not bound by the trial court’s ruling, we will accept the trial court’s interpretation of a statute unless it is shown that the trial court erred. Id. The purpose of statutory interpretation is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). We first seek the legislature’s intent by giving the words of the statute their ordinary and usual meaning in common language. Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). Where the meaning is clear and unambiguous, we do not resort to the rules of statutory interpretation. Id.

R.N. filed his petition to establish his paternity of A.M. under section 9-10-104 of the paternity statutes. This section was amended by Act 1184 of 1995 to read as follows:

9-10-104. Suit to determine paternity of illegitimate child. Petitions for paternity establishment may be filed by:
(1) A biological mother;
(2) A putative father;
(3) A person for whom paternity is not presumed or established by court order; or
(4) The Office of Child Support Enforcement.

R.N. asserts that section 9-10-104 plainly creates standing for him as a putative father. A “putative father” is defined throughout the Arkansas Code as any man not legally presumed or adjudicated to be the biological father of a child, but who claims or is alleged to be the biological father of the child. See Ark. Code Ann. §§ 9-9-501(11) (Repl. 1998), 9-27-303(42) (Supp. 2001), 16-43-901 (h) (Repl. 1999), 20-18-701(5) (Repl. 2000). R.N. claims to be the biological father of A.M., but he is not legally presumed or adjudicated to be the biological father of A.M. Thus, R.N. is, by statutory definition, a putative father.

As to the phrase, “[s]uit to determine paternity of illegitimate child,” that now appears in section 9-10-104, R.N. contends that it is merely a descriptive heading, and descriptive headings in the code do not have the effect of law. R.N. is correct that descriptive headings in the code are not law. See Ark. Code Ann. § l-2-115(b) (Repl. 1996) (“(b) Unless otherwise provided in this Code, . . . the descriptive headings or catchlines immediately preceding or within the text of the individual sections ... do not constitute part of the law and shall in no manner limit or expand the construction of any section.”). While it is true that a previous version of section 9-10-104, as amended by Act 725 of 1989, did not include the above-quoted descriptive heading, it is now a part of the statute after the General Assembly amended section 9-10-104 in 1995 and included the heading or title of the statute in the enactment of the statute, thus making the heading itself part of the statute. See 1995 Ark. Acts 1184.

Without this phrase, the statute would clearly grant R.N. standing. We must, therefore, determine whether the language in the descriptive heading that is now a part of the statute effectively denies R.N. standing to petition for the establishment of A.M.’s paternity. The paternity statutes do not provide us with a definition of the term “illegitimate child,” but this court has defined that term in Willmon v. Hunter, 297 Ark. 358, 360, 761 S.W.2d 924, 925 (1988): “[A]n illegitimate child is a child who is born at the time that his parents, though alive, are not married to each other.” The paternity statutes at that time provided that “any man alleging to be the father of an illegitimate child may petition . . . for a determination of the paternity of the illegitimate child.” Ark. Code Ann. § 9-10-104(a) (1987).

We also reiterated in Willmon the general principle of law that a child is presumed legitimate if the parents were married at the time of the child’s conception or birth. Id. This principle has been recognized by the General Assembly when enacting laws concerning inheritance. See Ark. Code Ann. § 28-9-209 (1987). In Willmon, we held that the presumption of legitimacy of a child born during a marriage, as well as the presumption of legitimacy of a child conceived but not born during the marriage, are rebuttable and do not preclude a party from litigating the issue of paternity. Willmon v. Hunter, supra. See also, Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987) (permitting the mother to litigate the issue of illegitimacy even though the child was conceived and born during marriage). In other words, even when the term “illegitimate child” was included within the text of the statute, and not merely in the descriptive heading, we have held that a putative father was not precluded from petitioning to determine paternity in cases where the child was presumed legitimate.

The General Assembly included a reference to the term “illegitimate child” in the 1995 amendments to the paternity statutes knowing of our earlier decisions that a presumption of legitimacy is rebuttable notwithstanding the specific reference to that same term in a previous version of section 9-10-104. See Thomas v. Pacheco, supra., and Willmon v. Hunter, supra. “[W]hen the construction of a statute is at issue, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law.” Davis v. Old Dominion Freight Line, Inc., 41 Ark. 751, 756, 20 S.W.3d 326, 329 (2000). Because the legislature is presumed to have known of our decisions, we conclude that the plain language of section 9-10-104 grants R.N. standing to petition to determine the paternity of A.M. In other words, it gives R.N. the opportunity to bring his cause before the court.

Although section 9-10-104 gives R.N. standing to petition for paternity, at issue here is whether paternity testing is mandatory under section 9-10-108 or discretionary under section 16-43-901 in relation to these facts. R.N. urges this court to hold that the trial court erred in refusing to order the DNA testing as requested in his motion for paternity testing pursuant to Ark. Code Ann. § 9-10-108. The trial court applied section 16-43-901, which is permissive and allows a trial court to determine what is in the child’s best interest before ordering a paternity test. See Ark. Code Ann. § 16-43-901 (g). R.N. argues that the mandatory testing required under section 9-10-108 should control because it is a specific statutory right to DNA testing in the course of a paternity proceeding, and. the best interest analysis should be done after the trial court has the benefit of all the material facts, including the DNA or paternity test.

Whether sections 9-10-108 and 16-43-901 conflict is a question of statutory interpretation. We have often noted that “[i]t has long been the law in Arkansas that a general statute must yield when there is a specific statute involving the particular subject matter.” Shelton v. Fiser, 340 Ark. 89, 94, 8 S.W.3d 552, 560 (2000). See also, Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Conway Corp. v. Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). However, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Stephens, supra; Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

While the language of the two statutes appears at first to be in conflict, a full reading of the statutes and the situations to which they apply clarify that section 16-43-901 is the more specific of the two and can be applied harmoniously with section 9-10-108. Under section 9-10-108, the trial court is directed that it “shall” order testing upon the motion of either party to the paternity action; whereas, under section 16-43-901 the trial court “may” order testing where it can assist the trial judge in the determination of paternity in the particular situation where the child is presumed legitimate by being bom during the marriage of the mother and her husband. Section 16-43-901 (g) instructs the trial court to consider the best interest of the child in determining paternity in the specific situation when the child is presumed legitimate; whereas, section 9-10-108 contains no such instruction for the general determination of paternity. By finding that section 16-43-901 addresses a more limited and specific situation than does section 9-10-108, we not only can address the particular situation of determining the true parentage of a presumed legitimate child born of a marriage, but the court can also harmonize these two statutory sections.

As the court of appeals noted in Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997), Act 657 of 1989, codified at section 16-43-901, abolished Lord Mansfield’s Rule. The court of appeals stated:

The common-law rule, articulated in 1777, states the declarations of husband and wife cannot be admitted to bastardize a child born after marriage. The statute now permits a mother, her husband, and a putative father to testify about the paternity of a child. However, the strong presumption of the legitimacy of a child born of marriage continues to be one of the most powerful presumptions in Arkansas law. Only upon clear and convincing evidence may the court find this presumption overcome. This statute also provides:
The court shall consider foremost the interest of the child in making any determination hereunder and consider only testimony and evidence which will serve the best interest of the child in its findings pursuant to this section.

Id. at subsection (g)(2).

In Leach, the court of appeals reversed the chancellor’s decision to award custody of two children born of the marriage, although the older child was admittedly not the husband’s, to the mother so that the children would not be separated, although the father had had temporary custody during the divorce proceedings. While the issue of paternity testing did not arise in that case because the husband and wife did not make it an issue, the issue of paternity itself was raised sua sponte by the court. The chancellor determined that because the older child was not the husband’s, the husband could not have custody of her. The court of appeals reversed because illegitimizing the daughter was not in her best interest under the facts of that particular case. The court of appeals recognized that in considering paternity involving a child born of a marriage whose legitimacy is presumed, such a special and specific situation arises requiring the chancellor to step in and exercise discretion to determine an outcome in the best interest of the child whose fife will be most affected by any change in parentage. See Ark. Code Ann. § 16-43-901(g)(l) and (2). While Leach has no precedential value for us, its reasoning is sound and in accordance with the application of this statute to this specific situation. The discretionary “may” language in section 16-43-901(e)(1) allows a chancellor to consider the particular circumstances of each case and the child’s best interest before ordering a paternity test that could forever change a child’s life, perhaps merely because the adults who caused such a tumultuous situation are curious to know the results of their infidelity.

Furthermore, because the bulk of section 16-43-901 addresses such a specific situation rather than the general situation of establishing paternity under section 9-10-108, R.N.’s contention that section 9-10-108 is more specific merely because it uses the word “shall” is in error. By reaching that conclusion, we would necessarily void the language in section 16-43-901(e)(1), which gives the trial judge discretion to order the test if it assists the court in the determination of parentage after considering the child’s best interest under section 16-43-901(g) (2). Instead, by our determination that section 16-43-901 is more specific in its application to this particular type of paternity challenge than the general paternity-testing statute at section 9-10-108, both statutes can be read in harmony to recognize that the presumption of legitimacy of a child born during a marriage is a presumption to protect the child whose interests should be considered first and foremost. And while this presumption is rebuttable according to law, the challenging party must first show that rebutting that presumption is in the best interest of a child whose parents were married at the time the child was born and perhaps, as in this case, remain married and plan to continue as the only parents the child has ever known.

Opponents to our decision would argue that giving the trial judge discretion in such a case would erase a putative father’s ability to rebut the presumption of legitimacy where perhaps the only way to rebut that presumption is through DNA testing. However, it is this discretion in section 16-43-901 that allows the trial judge to provide the necessary level of objective reasoning to protect the best interest of a child who is presumed legitimate while still considering the interests of a putative father or other party who seeks to rebut the presumption. Otherwise, the presumption of legitimacy loses any real meaning if a putative father, for instance, has the ability, by merely requesting a paternity test, to forever change the presumed legitimacy of a child born of a marriage. We are not willing to minimize this presumption where section 16-43-901 clearly addresses a specific situation in which paternity is challenged within the larger and less specific arena of paternity challenges under section 9-10-108.

In two particular cases in the 1980s, we addressed the issue of a party’s ability to challenge paternity when a child is presumed legitimate. In Thomas v. Pacheco, supra, we allowed a mother to litigate the issue of paternity even though the child was conceived and born during her marriage. We noted that while there is a strong presumption of legitimacy for a child born during marriage, the presumption was rebuttable by evidence of the father’s impotence or the non-access of the parties. Id. We reversed the trial court’s findings concerning paternity for two reasons. One, the trial court erred in allowing the husband and wife to testify concerning non-access during the period of conception. Lord Mansfield’s Rule, a rule of evidence dating back to the 1770s and adopted in Arkansas in 1915, prohibited a husband or wife from testifying concerning non-access of the husband. Thus, the trial judge abused his discretion in allowing the testimony. Id. Second, we held that even though blood tests established a 99.5% probability that the husband was not the father, the court failed to follow the required procedure by allowing a telephone deposition, rather than a personal appearance, by the doctor who performed the test. Id. Significantly, we did not dismiss the case but remanded it, allowing the parties to continue to litigate the issue of paternity in spite of the presumption of legitimacy and the wording of the statute that appeared to limit petitions to cases of an illegitimate child. Id.

In Willmon v. Hunter, supra, we upheld the right of a putative father to litigate the issue of paternity over the presumption of legitimacy of a child conceived during marriage but born out of wedlock. In deciding that case, we held that the presumption of legitimacy was not irrebuttable. We also held that there was no public policy that would prohibit a putative father from seeking to establish his paternity of a child presumed legitimate. Id. In 1988, we held that a putative father was not entitled to notice because he did not avail himself of his rights to petition for paternity or take other affirmative action to establish a relationship with the child. In re the Adoption of S.J.B., 294, Ark. 598, 745 S.W.2d 606 (1988). Furthermore, we stated: “The Arkansas law governing the establishment of paternity by the county court is applicable to all putative fathers.” Id. at 603. The Willmon holding, like the Pacheco and Adoption of S.J.B. holdings, were made under the 1981 statute, the text of which specifically referred to an illegitimate child.

While these cases establish that a putative father or other recognized party under section 9-10-104 may petition to establish paternity, a matter we do not dispute here, any further application of those decisions to this case must fail. Those cases were decided prior to the enactment of section 16-43-901 through Act 657 of 1989, which generally did away with Lord Mansfield’s Rule. Thus, while Thomas v. Pacheco and Willmon v. Hunter recognize a party’s standing to challenge presumed paternity, the language in section 16-43-901 still retains the trial judge’s discretion to consider first and foremost the best interest of the child before making any decision regarding the receipt of evidence, including whether to order DNA tests. See Ark. Code Ann. § 16-43-901(e)(l) and (g)(2).

In conclusion on this issue, we find that the trial court erred in holding that R.N. did not have standing to petition to establish paternity. We reverse and remand to the circuit judge with the instruction that prior to ordering paternity testing, the circuit judge shall first conduct a hearing to determine whether it is in the best interest of the child to order a paternity test pursuant to section 16-43-901(g) (2), and then to further determine any related issues pursuant to the directives of that statute.

II. Equitable Estoppel

Even though R.N. has statutory standing, J.M. and B.M. assert that R.N. should be equitably estopped from bringing a paternity action because he waited until A.M. was almost nine months old before initiating the action. R.N. argues that J.M. and B.M. failed to present sufficient facts to meet their burden of proof on the elements of equitable estoppel. The trial court ruled that as a matter of law, R.N. was estopped from pursuing his paternity action. We review chancery cases de novo on the record, but we will not reverse a chancellor’s findings of fact unless they are clearly erroneous. Wisener v. Burns, 345 Ark. 84, 44 S.W.3d 289 (2001).

We have defined equitable estoppel as “a judicial remedy by which a party may be precluded by its own act or omission from asserting a right to which it otherwise would have been entitled, or pleading or proving an otherwise important fact.” Clemmons, 345 Ark. at 352 (citing 28 Am. JUR.2d Estoppel and Waiver, Page 353 § 28 (2000)). We have established four necessary elements of equitable estoppel:

(1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his or her conduct be acted on or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the latter must be ignorant of the true facts; and (4) must rely on the former’s conduct to his or her injury.

Miller County v. Opportunities, Inc., 334 Ark. 88, 96, 971 S.W.2d 781 (1998). The essence of J.M. and B.M.’s estoppel argument is that R.N. should be estopped from bringing a paternity action because, although he knew that he was probably A.M.’s biological father, he allowed B.M. to establish and develop a close relationship with A.M. during the first nine months of the child’s life.

B.M., as the proper party to assert the equitable estoppel claim, had the burden of proving each of the four elements of equitable estoppel. However, there is no proof in the record as to what B.M. knew and when, although at some point he knew there was a question about A.M.’s paternity. Furthermore, B.M. offered no evidence to show that he relied on R.N.’s conduct to his detriment. We must therefore conclude that, without the strict proof necessary to support B.M.’s estoppel claim, the trial court was clearly erroneous in concluding that R.N. was equitably estopped from bringing the paternity action as a matter of law.

III. Equal Protection

The dissent asserts that by reaching this conclusion we are violating the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because we are “discriminating” against illegitimate children by not providing them a “best interest” hearing upon the determination of paternity. Nothing could be further from the truth.

To begin with, we note that none of the parties to this action raised this issue in the trial court, and they do not attempt to raise the issue in their briefs to this court. The dissent raises this issue sua sponte despite our longstanding rule that, with the notable exception of matters involving subject-matter jurisdiction, we will not consider issues raised for the first time on appeal, even where the issue is a matter of constitutional magnitude. Furman v. Holloway, 312 Ark. 378, 383, 849 S.W.2d 520, 523 (1993); Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998), Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

On the merits, the dissent bases its argument on Gomez v. Perez, 409 U.S. 535 (1973), a case in which the United States Supreme Court determined that a Texas court’s action in a paternity and support case violated the Equal Protection Clause. In Gomez, the appellant filed a petition in Texas District Court seeking support from the appellee on behalf of her minor child. After a hearing, the state trial judge found that appellee was “the biological father” of the child, and that the child “needs the support and maintenance of her father,” but concluded that because the child was illegitimate “there is no legal obligation to support the child and the Plaintiff take nothing.” The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. The Texas Supreme Court refused application for a writ of error, finding no reversible error. On review, the Supreme Court held that a state may not “invidiously discriminate” against illegitimate children by denying them substantial benefits accorded children generally, and that once a state creates a judicially enforceable right on behalf of children for necessary support from their natural fathers, there is no constitutionally sufficient justification for denying these necessary rights to a child simply because her natural father has not married her mother, and such denial is a denial of equal protection.

Clearly, the Court in Gomez saw that providing fewer rights to a child simply because he or she is illegitimate is a violation of equal protection. The Gomez case and its holding neither factually nor substantively apply here, however. Rather, in this case, by requiring paternity testing under Ark. Code Ann. § 9-10-108 in a case involving an illegitimate child, the courts will actually be effectuating the intent of the United States Supreme Court in Gomez by requiring that illegitimate children who do not have a father wifi not only be able to establish parentage, but will also be afforded all of the rights and benefits accorded children who are presumed legitimate. Hence, the “best interest” of an illegitimate child, including but not limited to the rights and benefits of having a father and the right of receiving support from the father, will always be to have parentage established for an illegitimate child, thus negating any need for a “best interest” hearing under Ark. Code Ann. § 16-43-901. The State, as well, will benefit from the establishment of paternity for an illegitimate child where certain support obligations will transfer to the rightful bearer of those responsibilities. Furthermore, required testing under Ark. Code Ann. § 9-10-108 in a case involving an illegitimate child actually raises the rights of an illegitimate child to the same level as those who are presumed legitimate, thus satisfying the Equal Protection Clause by actually conferring upon them “substantial benefits accorded to children generally.” Gomez, 409 U.S. at 538 (1973).

As a final point, R.N. argues that the trial court erred in ruling that he did not have a protectable constitutional interest that would grant him standing. Because we have ruled that R.N. has statutory standing to bring the petition, we need not address this point.

Reversed and remanded.

Thornton, J., concurs.

Glaze, Brown, and Imber, JJ., dissent.

R AY Thornton, Justice,

concurring. The majority of the court has decided that R.N. has standing under Ark. Code Ann. § 9-10-104 (Repl. 1998) to bring a paternity action challenging the legitimacy of a child, A.M., who is presumed to be legitimate because she was both conceived and born during the continuing marriage of her parents, J.M. and B.M. Both J.M. and B.M., the married couple to whom A.M. was born, strongly object to R.N.’s efforts to have the child declared illegitimate.

The public policy of our state regarding the presumption of legitimacy of a child born during marriage was declared in Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), where we stated:

Marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate should not be made easy. Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to the marriage, is one of the strongest presumptions recognized by the law.

Thomas, supra (citing Jacobs v. Jacobs, 146 Ark. 45, 225 S.W.22 (1920)). We also made a strong public policy declaration in support of the presumption of the legitimacy of a child born during marriage in Hall v. Freeman, 327 Ark. 148, 936 S.W

However, the majority of the court today holds that the legislature did not mean what it said when it enacted Act 1184 of 1995, which clearly states who has standing to bring a paternity action in a suit to determine the paternity of an illegitimate child. Act 1184 of 1995, which is codified at Ark. Code Ann. § 9-10-104, provides in its entirety:

Be it Enacted by the General Assembly of the State of Arkansas:
SECTION 1. Arkansas Code § 9-10-104 is hereby amended to read as follows:
“9-10-104. Suit to determine paternity of illegitimate child. Petitions for paternity establishment may be filed by:
(1) A biological mother;
(2) A putative father;
(3) A person for whom paternity is not presumed or established by court order; or
(4) The Office of Child Support Enforcement.”

Id.

While I have great difficulty in comprehending the reasoning employed by the majority in conferring standing upon R.N., I recognize that the majority of this court has authority to interpret the statute. It has done so in today’s opinion by declaring that R.N. has standing to bring a paternity action under Ark. Code Ann. § 9-10-104. Accordingly, I reluctantly accept the majority’s conclusion to confer standing upon R.N.

However, accepting that R.N. has standing to bring a paternity action, as declared by today’s decision, I wholeheartedly agree with the majority’s decision that, pursuant to Ark. Code Ann. § 16-43-901 (Repl. 1998), the best interests of the child should be considered by the trial court before ordering a blood test.

For these reasons, I respectfully concur.

R OBERT L. BROWN, Justice,

dissenting. I agree with Justice .Imber’s dissenting opinion. But like Justice Thornton in his concurring opinion, I am troubled by the General Assembly’s enactment of Act 1184 of 1995, which fists who has standing to sue to determine paternity. Act 1184 reads:

Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. Arkansas Code § 9-10-104 is hereby amended to read as follows:
“9-10-104. Suit to determine paternity of illegitimate child. Petitions for paternity establishment may be filed by:
(1) A biological mother;
(2) A putative father;
(3) A person for whom paternity is not presumed or established by court order; or
(4) The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration. ”

Act 1184 of 1995 (emphasis added).

The critical question for me is where did the language “9-10-104. Suit to determine paternity of illegitimate child,” which is included in Act 1184, come from? In reviewing Act 725 of 1989, which rewrote § 9-10-104, this language is not included. This means that under Act 725, paternity suits could be brought respecting either illegitimate or legitimate children. However, in checking the 1989 Pocket Supplement of the Family Law Code and the 1992 Replacement Volume as well, the language concerning an “illegitimate child” was added by the codifier as a heading to § 9-10-104, even though Act 725 made no reference to illegitimate children. Descriptive headings and titles added by a codifier, of course, are merely for convenient reference and do not have the force of law. Ark. Code Ann. § 1-2-115 (Repl. 1996).

Act 1184 of 1995 was a comprehensive act that amended forty-one statutes relating to the Office of Child Support Enforcement. In amending § 9-10-104, Act 1184 picked up the codifier’s heading relating to paternity suits for illegitimate children as part of the enactment. Nowhere else in the Act is reference made to illegitimacy. The title of Act 1184 does not allude to illegitimate children, and no Emergency Clause is included in the Act. By adding the codifier’s heading, Act 1184 of 1995 significantly amended Act 725 of 1989, which did not limit paternity suits to illegitimate children. Of course, this is a major policy shift. The question then is whether enacting a codifier’s title was legislative error or not. Ordinarily, the presumption is made in favor of error-free enactments. Yet, I am reluctant to countenance a policy shift of such consequence based on the inclusion of a codifier’s heading without any further statement by the General Assembly. It appears the General Assembly may well have inadvertently picked up the codifier’s heading in comprehensive legislation without further consideration and without intending to significantly alter the statute.

The General Assembly should review § 9-10-104 at its next legislative session in fight of today’s decision and other recent decisions of this court which relate to who can raise paternity questions and with respect to what children. This is a major policy issue that cries for clear resolution.

A NNABELLE Clinton Imber, Justice,

dissenting. I agree with the majority that Ark. Code Ann. § 9-10-104 (Repl. 1998 and Supp. 2001) confers standing on R.N. to petition for the establishment of paternity. However, I disagree with the majority’s conclusion that the substantive right to mandatory paternity testing provided in the paternity testing permissive after a hearing on the best interest of the child. Furthermore, I must dissent because the majority has interpreted our paternity statutes in such a way as to offend the United States Constitution.

The majority would allow a putative father to have standing under section 9-10-104 of the paternity statutes, but then would strip him of his substantive right to mandatory paternity testing granted under section 9-10-108 if the child is presumed legitimate. Once a party has standing, that party has all the substantive rights that flow from standing. In that case of a paternity action, if a putative father has standing, he is entitled to all the substantive rights granted to him by the General Assembly under the paternity-statutes, including those granted to either party under section 9-10-108. The majority concludes that the General Assembly intended for a putative father to have standing to file a paternity action where the child is presumed legitimate and also for the putative father to somehow lose standing when he attempts to invoke his right to mandatory testing. The majority cannot have it both ways — either a putative father has standing and all the rights that flow therefrom, or he does not. The General Assembly made it clear that he does.

Sections 9-10-108 of the paternity statutes and 16-43-901 both provide for genetic testing to establish paternity. The mjority correctly points out that statutes dealing with the same subject matter should be read harmoniously if possible, but if the statutes conflict, then the more specific statute takes precedence over the more general statute. See Shelton v. Fiser, 340 Ark. 89, 94, 8 S.W.3d 552, 560 (2000); Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The majority asserts that the trial court should grant a motion to test for paternity only after conducting a hearing to determine the best interest of the child, not because section 9-10-108 of the paternity statutes authorizes the judge to do so, but because section 16-43-901 of the evidentiary statutes does.

The majority attempts to harmonize the two statutes by simply ignoring the rights granted to a party to a paternity action under section 9-10-108 if the child is presumed legitimate. A more consistent reading of the statutes is that they merely provide for paternity testing under two different circumstances. In a non-paternity case where evidence of paternity becomes an issue, section 16-43-901(g)(1) of the evidentiary statutes allows the trial court to order paternity testing under section (e)(1) after a hearing on the best interest of the child under section (g)(2). In a paternity case, section 9-10-108 of the paternity statutes grants a substantive right to the parties to request and obtain paternity testing without such a hearing. The facts in the instant case bring the testing under the mandatory provisions of section 9-10-108 because paternity is the central issue of the case. If the General Assembly had intended for the paternity testing upon the motion of a party to a paternity action to be conditioned on a hearing to determine the best interest of the child, it could have done so. However, the General Assembly did not require such a hearing, and this court is not empowered to add that restriction to the statute.

The majority also states that to the extent section 9-10-108 and 16-43-901 conflict, section 16-43-901 should take precedence because it deals specifically with a situation in which the child is presumed legitimate. The majority does not disagree that if section 9-10-108 takes precedence, the plain language of the statute makes the paternity testing mandatory because of the use of the phrase “the trial court shall order. . . .” Ark. Code Ann. § 9-10-108(a)(l). The majority’s analysis of specific versus general statutes is flawed. The cases cited by the majority in support of the proposition that a general statute must yield to a statute specific to the subject matter are instructive on the issue of how to distinguish a specific statute from a general one. In Shelton v. Fiser, 340 Ark. 90, 8 S.W.3d 552 (2000), the statute of limitations relating specifically to minor children in a medical malpractice case took precedence over a general statute of limitation for actions by minors. In Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997), the specific statute relating to forfeiture of personal property from drug trafficking took precedence over a general statute covering goods confiscated from any crime. In Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994), a statute prohibiting setoffs for money judgments to a defendant after the plaintiff commenced suit against the defendant took precedence over a statute generally allowing setoffs in money judgments. In Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989), a statute not requiring a taxing unit to accept the lowest bid on public improvement contracts took precedence over a general statute requiring the acceptance of the lowest bid. In each case, the general or specific nature of a statute was determined by how broad a range of legal actions were covered by the statute in question. Where the statute specifically related to the subject matter of the case at bar, it took precedence over statutes that only generally related to the subject matter.

In reaching its conclusion, the majority states that section 16-43-901 is more specific than section 9-10-108 because it is limited to circumstances “in which the child is born during marriage and is presumed legitimate.” This assertion is not supported by the plain language of the statute. The General Assembly clearly sets out the broad range of legal actions covered by section 16-43-901: “The purpose of this section is to enable the courts to receive into evidence relevant facts concerning the paternity of a child in any court proceeding or administrative hearing involving paternity or support obligation for a child.” Ark. Code Ann. § 16-43-901 (g)(1). (Emphasis added.) On the other hand, the plain language of section 9-10-108 sets out its limited scope. “Upon motion of either party in a paternity action, the trial court shall order that the putative father, mother, and child to submit to scientific testing for paternity. ...” Ark. Code Ann. § 9-10-108(a)(l). (Emphasis added.) Section 16-43-901 applies to legal proceedings in general, including administrative hearings. Section 9-10-108 is limited to paternity actions.

The instant case is a paternity action, and so, according to our caselaw, the statute that is specific to the subject matter takes precedence over a general statute covering a broad range of legal proceedings. Section 9-10-108 specifically applies only to paternity actions and takes precedence over Section 16-43-901 that applies to a broad range of legal proceedings.

The majority’s reliance on Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997), is misplaced because Leach was a divorce action, not a paternity action under section 9-10-104. Id. The court of appeals correctly applied the general provisions of section 16-43-901 in Leach because it was a divorce action, and paternity testing under section 9-10-108 can only be initiated by a party to a paternity action. In the instant case, the paternity of A.M. has not been established. Once paternity is established, then the circuit court must, as the court of appeals required in Leach, consider the best interest of A.M. in matters of visitation, custody, support, or other issues affecting the child.

I must also dissent because the majority has interpreted the paternity statutes in a manner that calls into question their constitutionality under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The majority’s decision creates two standards — one for children presumed legitimate, and another standard for children not presumed legitimate. According to the majority opinion, after a paternity suit is initiated under section 9-10-104, if the child is presumed legitimate the trial court is to apply section 16-43-901 to a motion for paternity testing and only grant the testing if a hearing determines it is in the child’s best interest to do so. However, if the child is not presumed legitimate, a motion for paternity testing is governed by section 9-10-108 and the testing is mandatory without a “best interest” hearing. Thus, a “best interest” hearing is afforded to a presumed legitimate child, but denied to a child not presumed legitimate. The United States Supreme Court has stated that “[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded to children generally.” Gomez v. Perez, 409 U.S. 535, 538 (1973).

Because I believe that the majority’s interpretation of sections 9-10-108 and 16-43-901 discriminates against children not presumed legitimate in violation of the Equal Protection guarantees of the Fourteenth Amendment, I must respectfully dissent.

Glaze, and Brown, JJ., join in this dissent.

       Pursuant to the passage of Arkansas Constitutional Amendment 80, which went into effect on July 1, 2001, our state courts are no longer separated into chancery and circuit courts. Rather, these courts have merged and now carry only the designation of “circuit court.” Therefore, although the trial court in this case was originally a chancery court, in will herein be referred to as the circuit court.

       B.M. was allowed to intervene in this action on June 29, 1999, and he later joined J.M. in her motion to dismiss R.N.’s paternity suit.

       It should be noted that Act 1184 of 1995, as codified at Ark. Code Ann. § 9-10-104 (Repl. 1998) states as follows:
      9-10-104. Suit to determine paternity of illegitimate child.
      Petitions for paternity establishment may be filed by:
      (1) A biological mother;

        (2) A putative father;
      (3) A person for whom paternity is not presumed or established by court order; or
      (4) The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration.


author: P ER CURIAM.

text:
    John Lee HUDDLESTON v. STATE of Arkansas
    CR 00-697
    61 S.W.3d 163
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   P ER CURIAM.

Appellant was convicted in Sebastian County of possession of amphetamine with intent to deliver and possession of drug paraphernalia. He was sentenced as a habitual offender to life imprisonment and ten years’ imprisonment, with the sentences to run concurrently. Appellant was also fined $10,000.00 for possession of drug paraphernalia. Appellant filed a motion for new trial and two amended motions. A hearing was held, and the motions for new trial were denied. Appellant’s convictions were affirmed by this court. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Appellant then filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37 in the trial court, raising claims of ineffective assistance of trial and appellate counsel. The circuit court denied the petition without an evidentiary hearing. Appellant appeals to this court. We find no error and affirm.

Appellant’s first claim on appeal from the denial of the Rule 37 petition consists of three sub-parts: (1) trial counsel was ineffective for failing to establish that Kelly Mendoza was an agent for the State, (2) trial counsel failed to call Gary Lee, Greg Stevens, and Jimmy Cureton as witnesses, and (3) trial counsel failed to proffer the testimony of Lee, Stevens, and Cureton.

First, appellant claims that Mendoza, who was with appellant when he was arrested, was acting on behalf of state drug investigators when she planted the drugs on appellant that led to his arrest. According to appellant, trial counsel was aware of this. The circuit court denied appellant’s claim on the basis that matters of trial tactics and strategy are not grounds for postconviction relief. See Neal v. State, 270 Ark. 442, 456, 605 S.W.2d 421, 427 (1980).

On direct appeal, appellant claimed that the trial court erred in denying his motion for new trial based upon a claim of ineffective assistance of counsel. This court found that appellant’s claim was procedurally barred because appellant failed to abstract the guilt phase of his trial and because appellant failed to argue that Mendoza was an agent for the State, a claim for which the trial court made no specific ruling. Huddleston, supra.

In its brief, the State argues that because appellant raised this claim of ineffectiveness on direct appeal as permitted by Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993), he cannot raise it again in a Rule 37 proceeding. According to the State, if an appellant is permitted to raise ineffective-assistance claims on direct appeal, then raise the previously barred or new ineffective-assistance claims in a Rule 37 petition, an appellant is able to have such claims considered in two successive state court proceedings, which is contrary to the prohibition under Rule 37 on the filing of successive petitions. The State urges this Court to overrule Missildine and hold that ineffective-assistance claims can be raised only in postconviction proceedings. We disagree with the State and decline to overrule Missildine.

Missildine does not present the problems that the State contends. Even if there was a motion for new trial which raised some claims of ineffective assistance of counsel, this does not preclude the petitioner from filing a Rule 37 petition later, provided the claims in the petition are being raised for the first time. We agree that claims of ineffective assistance raised in a new trial motion are settled by the trial court; however, claims not raised in the motion for new trial are proper in Rule 37 proceedings.

As stated, on direct appeal this Court found that appellant’s claim of ineffectiveness was procedurally barred because appellant failed to abstract the guilt phase of his trial and to argue that Mendoza was an agent for the State, a claim for which the trial court made no specific ruling. Huddleston, supra. It was appellant’s obligation to obtain a ruling in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). We have repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Jackson v. State, 334 Ark. 406, 412, 976 S.W.2d 370, 373 (1998). Because this claim was decided on direct appeal, we decline to consider the issue in these proceedings. See Neal, supra, at 447, 605 S.W.2d at 424.

Appellant also claims that trial counsel failed to interview and call as witnesses Lee, Stevens, and Cureton and that he failed to proffer their testimony. According to appellant, these witnesses, if called, would have testified at trial that Mendoza told them that she “set up” appellant. However, appellant claims that trial counsel misrepresented the substance of their testimony to the court by stating that the three men would testify about Mendoza’s setting up other individuals, not appellant; therefore; the trial court disallowed the testimony. The circuit court found that trial counsel’s decision of whether or not to call these witnesses was a matter of trial strategy, which is outside the purview of Rule 37. Additionally, the circuit court noted that these contentions were addressed on appeal; therefore, they are not grounds for relief under our postconviction rule. Id.

The issue of trial counsel’s failure to call these witnesses was addressed in appellant’s motions for new trial. At the hearing on the motions, all three witnesses were present. Stevens and Cure-ton testified that had they been called as witnesses, they would have testified that Mendoza told them she planted drugs on appellant at the request of police. However, Lee invoked his Fifth Amendment privilege. Appellant testified that each of these witnesses would have testified that Mendoza set him up. Because this issue was addressed in appellant’s motions for new trial, they cannot be raised again in a Rule 37 petition.

Appellant’s second claim on appeal from the denial of his Rule 37 petition is that trial counsel was ineffective when he failed to disclose a conflict of interest. Appellant claims that at the time of appellant’s criminal trial, the Sebastian County Public Defender’s Office, trial counsel’s employer, was also representing Lee on an unrelated charge. Appellant claims that trial counsel did not disclose that his office was representing Lee, and therein lies the alleged conflict. According to appellant, trial counsel failed to interview and call Lee as a witness at trial, because Lee was being represented by the Public Defender’s Office. Appellant claims he was prejudiced by trial counsel’s failure to call Lee as a witness because Lee would have testified that Mendoza told him that she “set up” appellant the night of the arrest.

This claim was raised on direct appeal, and this Court found that because the trial court did not rule on this claim, the point was not preserved for appellate review. Huddleston, supra. In addition, the circuit court did not rule on this issue in denying appellant’s Rule 37 petition. As stated previously, failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Jackson, supra.

Appellant’s third claim is that trial counsel was ineffective by failing to inform appellant of a plea offer. According to appellant, the State offered to recommend a fifteen-year sentence in exchange for appellant’s guilty plea; however, trial counsel never communicated this offer to appellant. In denying appellant’s petition, the circuit court found that appellant provided no support for this assertion. Although appellant did not raise this claim in his motions for new trial, the issue was addressed at the hearing on the motions. At the hearing, Ron Fields, former Prosecuting Attorney for the Twelfth Judicial District, testified that after leaving the prosecutor’s office for private practice, he became involved in appellant’s case at the request of appellant’s mother. Upon realizing a conflict because of his position as former prosecuting attorney, Fields withdrew from the case. According to Fields, the plea offer to which appellant is referring has to do with a federal felon in possession of a firearm charge. According to Fields, he did not work out a deal for appellant with the State.

In Scott v. State, 286 Ark. 339, 691 S.W.2d 859 (1985) (per curiam), this court denied a petitioner’s claim that counsel was ineffective for failure to communicate a plea offer because a bare assertion of an offer by the petitioner alone is insufficient reason to grant a hearing. Id. at 340, 691 S.W.2d at 860. This Court stated:

If it were otherwise, even where there had been no plea negotiations, a petitioner could open a judgment of conviction to collateral attack based on his mere contention that there was a plea offer. A collateral attack on a valid judgment must be founded on more than an unsubstantiated allegation if the presumption that a criminal judgment is final is to have any meaning. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

Id. at 340-41, 691 S.W.2d at 860. Because appellant provides no evidence that a state plea offer existed which trial counsel failed to communicate to him, appellant’s claim for ineffective assistance has no merit and is therefore denied.

Finally, appellant claims that appellate counsel was ineffective for fading to abstract the guilt phase of appellant’s trial, which resulted in the procedural bar on direct appeal of appellant’s claim that trial counsel was ineffective for failing to present evidence that Mendoza was acting as a government agent and planted drugs on appellant. This Court found that appellant failed to abstract the guilt phase of his trial and to argue that Mendoza was an agent for the State; therefore, the trial court made no ruling, and appellant’s claim was procedurally barred. Huddleston, supra.

As previously stated, it is appellant’s obligation to obtain a ruling in order to properly preserve an issue for review. Beshears, supra. Failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Jackson, supra. Because this claim was decided on direct appeal, we decline to consider the issue in these proceedings. See Neal, supra.

Affirmed.

IMBER, J., not participating.


author: P ER Curiam.

text:
    Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas
    CR 01-351
    60 S.W.3d 484
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Roy Lewellen, for appellants.
    No response.
   P ER Curiam.

On October 11, 2001, this court issued a per curiam directing the Supreme Court Clerk to accept a substituted copy of the trial transcript in this matter when all of the attorneys of record certify to the Clerk by affidavit that the trial transcript is true, accurate, and complete. Robinson v. State, 346 Ark. 266, 57 S.W.2d 162 (2001) (per curiam). We further directed the attorneys of record to reconstruct the record in the appeal, including trial exhibits, and certify in the same affidavit that the full record with the transcript and exhibits is accurate and complete. Id.

On October 26, 2001, attorney for the appellants filed a “Certification” and stated that the trial transcript was complete but that the thirteen trial exhibits are “presumed lost.” On November 7, 2001, the deputy prosecuting attorney filed an affidavit approving the trial transcript and stating in part: “If requested, I will attempt to reconstruct the trial exhibits.”

We again direct counsel of record to reconstruct the trial exhibits, as they appear pertinent to this appeal, and certify the same to this court by affidavit. See Ark. R. App. P.—Civ. 6(d); Ark. R. App. P.—Crim. 4(a). This must be done within thirty days from the date of this per curiam.

IMBER, J., not participating.


text:
    Phillip WILLIAMS v. STATE of Arkansas
    CR 01-1170
    60 S.W.3d 485
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Thomas B. Devine, III, Public Defender, for appellant.
    No response.
   P ER CURIAM.

Thomas B. Devine III, a state-salaried, full-time conflicts public defender for the Sixth Judicial District, was appointed by the trial court to represent Appellant Phillip Williams, an indigent defendant, in his capital murder case. Following a trial, Williams was sentenced to life in prison without parole. A timely notice of appeal and request for the transcribed record have been filed.

Mr. Devine now asks to be relieved as counsel for Mr. Williams in this criminal appeal as a result of this court’s decision in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Rushing, this court determined that state-salaried, full-time public defenders were ineligible for compensation by the court for work performed in the appeal of a matter in which the public defender represented the defendant. In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000).

Since the time of these decisions, however, the law has changed. In the most recent legislative session, the Arkansas General Assembly amended Ark. Code Ann. § 19-4-1604 through Act 1370 of 2001, which now provides that “[pjersons employed as full-time public defenders who are not provided a state funded secretary may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” Mr. Devine’s motion to be relieved as counsel on appeal is denied because the motion does not contain information regarding whether he is provided a state-funded secretary. Mr. Devine may resubmit his motion, providing information about whether he is provided a state-funded secretary, in order for us to determine whether he qualifies for dismissal in light of the amendment to Ark. Code Ann. § 19-4-1604.


author: T OM Glaze, Justice.

text:
    Dale HURST, Donny Hurst, d/b/a Hurst Brothers, Trustee of the Glen Cox Residual Trust, et al. v. Herman HOLLAND, The Estate of Addie Holland, Fred Holland, Ted Holland, Bob Holland
    01-603
    61 S.W.3d 180
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Grider Law Firm, PLC, by: M. Joseph Grider, for appellants.

      David J. Throesch, for appellees.
   T OM Glaze, Justice.

The appellants in this case are Dale Hurst and Donny Hurst, who are trustees of the Glen Cox Residual Trust, and who farm tracts of land in Randolph County known as the Cox Trust Estate and the Cherry Estate. The appellees are Herman Holland and other members of his family (collectively referred to simply as “Holland,”) who own and farm the tract of land directly south of the Cox Estate.

In 1993, the farmland at issue in this case experienced a flood. In 1995, Holland constructed a levee along the eastern boundary of their land in order to prevent further flooding. On June 15, 1995, the Hursts filed suit in Randolph County Chancery Court, requesting injunctive relief and alleging that Holland did not have the appropriate governmental permits to build the levee. The Hursts further alleged that the building of the levee would cause flooding of their land, in that the levee directed water away from Holland’s property and away from the main drainage ditch that flowed from north to south. Following a series of continuances, the Hursts filed an amended complaint on May 9, 1996, adding an allegation that the construction of the levee would cause damage to their grain bins, as well as damage to the Cherry Estate. Also in 1996, during the pendency of this suit, both the Cherry and Cox lands farmed by the Hursts were flooded.

On September 25, 2000, the trial court held a hearing on the Hursts’ petition for injunctive relief; that hearing resulted in an order, entered on March 2, 2001, finding that the Hursts had an adequate remedy at law under Randolph County Ordinance No. 150, captioned the “Flood Damage Prevention Code.” That county ordinance provides that when it is alleged that the Floodplain Administrator has erred in the enforcement or administration of the ordinance — for example, by erroneously issuing a development permit — the Appeal Board shall hear and render judgment on the appeal. The trial court concluded that the Hursts should have taken the matter to the Randolph County Appeal Board rather than pursuing injunctive relief.

From that order, the Hursts have brought the present appeal, wherein they argue that the trial court erred in ruling that Ordinance No. 150 required them to appeal to the Appeal Board, because that Board did not exist when the Hursts initially petitioned the court for injunctive relief in 1995, or when the chancery court held its hearing in September of 2000. In fact, the Appeal Board was not created until December 14, 2000, nearly three months after the hearing in this matter.

Ark. Code Ann. §§ 14-268-101 to -105 (Repl. 1998), is captioned “Flood Loss Prevention.” These statutes, enacted in 1969 following the passage of the National Flood Insurance Act, provide communities in Arkansas with the authority to take “appropriate actions to prevent and lessen . . . flood hazards and losses.” § 14-268-101(5). In seeking an injunction against the Holland levee, the Hursts proceeded under § 14-268-105, which provides as follows:

Every structure, building, fill, or development placed or maintained within any flood-prone area in violation of measures enacted under the authority of this chapter is a public nuisance. The creation of any of these may be enjoined and the maintenance thereof may be abated by action or suit of any city, town, or county, the state, or any citizen of this state. (Emphasis added.)

The trial court, however, ignored this language and instead relied on the Randolph County ordinance, which was passed in 1987 pursuant to the authority granted by § 14-268-104(a), which states the following:

In addition to all other powers, and notwithstanding any provision of any other law, each city, town, or county in this state is authorized to enact, adopt, and enforce ordinances; building or zoning codes, or other appropriate measures regulating, restricting, or controlling the management and use of land, structures, and other developments in flood-prone areas.

Among the measures local communities may take are, for example, the restriction of development and use of land which is exposed to flood damage, guiding the development of proposed construction away from locations threatened by flood hazards, and regulating the types, purposes, and uses of structures, buildings, developments, or fills permitted to be erected or improved in flood-prone areas. § 14-268-104(b).

The Randolph County ordinance, on which the trial court relied, established the county tax assessor as the Floodplain Administrator, and empowered that office with the duty to “review, approve or deny all applications for development permits required by adoption of this ordinance.” As noted above, if a party believes the Floodplain Administrator has made an erroneous decision regarding the enforcement of the ordinance, that party may take an appeal, defined in relevant part as a “request for a review of the Floodplain Administrator’s interpretation of the ordinance,” to the Appeal Board. The ordinance also provides that any person aggrieved by a decision of the Appeal Board may “appeal such decision in the courts of competent jurisdiction.”

Here, however, the parties agree that there was no such Appeal Board in 1995, when the injunction was originally sought, or in September of2000, when the trial court held a hearing on the matter. While the trial court concluded that the Hursts had an adequate remedy at law by taking their appeal to the Appeal Board, we disagree. A person need not exhaust his or her administrative remedies when to do so would be futile. See Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998) (exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile). Here, the Hursts had no adequate relief under County Ordinance 150 because there was no Board to which they could have appealed.

Further, we note that the statute under which the Hursts proceeded — § 14-268-105 — does not require an aggrieved party to exhaust his administrative remedies prior to seeking injunctive relief. The statute simply permits a party to enjoin a public nuisance without directing that any other steps be taken prior to requesting such relief. The county ordinance, however, does not allow for any kind of injunctive relief, and as such, did not provide the Hursts with an adequate remedy.

The trial court erred in ruling that the Hursts had an adequate remedy at law and were required to pursue their case before the Appeal Board. Ordinarily, this court tries equity cases de novo and resolves the factual and legal questions raised therein. See Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000) (the appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record). Here, however, because that court’s ruling did not consider the evidence or the merits of the case, we reverse and remand for further proceedings so that the lower court may consider and decide whether injunctive relief was proper. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979) (the appellate courts have the discretion to remand an equity case for further proceedings when it is clear that the chancery court’s decision was based upon an erroneous theory, and this court cannot determine from the record the rights and equities of the parties).

Holland contends that any error in the trial court’s denial of injunctive relief was harmless because the Hursts failed to prove any damages. We do not reach this argument because of our decision to remand the case to the trial court. In addition, Holland asserts that the Hursts’ action should be barred from appealing the Floodplain Administrator’s decision to the Appeal Board because more than five years have passed since the initial petition for relief. However, this argument was never raised below, and we will not consider it for the first time on appeal. See Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). Further, the argument is raised with no further discussion, and with only a citation to a statute that does not exist (Ark. Code Ann. § 16-15-115). This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. See, e.g., Public Defender Comm. v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000); Federal Fin. Co. v. Noe, 335 Ark. 78, 983 S.W.2d 107 (1998).

For the foregoing reasons, we reverse and remand this case for further proceedings.

ÍMBER, J., not participating.

       We note that although the Hollands have provided us with an addendum including a purported notice of appeal to the Appeal Board and that Board’s decision, these documents do not appear in the record, and thus, we do not consider them in reaching our conclusion.