author: Robert L. Brown, Justice. Jack Holt, Chief Justice,

text:
    AGRI BANK FCB, Formerly Farm Credit Bank of St. Louis and the Federal Land Bank of St. Louis v. Jordan MAXFIELD, Successor Trustee of the Maxfield Trust U/T/A Dated 11/8/85
    93-1063
    873 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Kemp, Duckett, Hopkins, & Spradley, by: Hal Joseph Kemp, for appellant.

      Coxey & Coxey, by: J. Kent Coxey, for appellee.
   Robert L. Brown, Justice.

This case concerns the construction of a warranty deed and whether the language of the deed evidenced on its face the retention of a vendor’s lien in the amount of $95,000 so as to give appellee Jordan Maxfield, Successor Trustee, a priority lien. The chancellor ruled that a vendor’s lien was sufficiently created and further ruled that the lien took priority over a mortgage in favor of appellant Agri Bank FCB. We hold that a vendor’s lien for $95,000 was not evidenced by the deed, and we reverse and remand.

J.R. Maxfield, Jr. owned land in Carroll County known as the 5M Ranch. In 1979, he became ill and decided to sell this property. His sons, Jordan Maxfield and Morgan Maxfield, agreed to buy it. On February 4, 1980, Maxfield and his wife, Kathryn Maxfield, executed and delivered a deed to the 5M Ranch to Morgan Maxfield. The warranty deed read:

WARRANTY DEED WITH
ASSUMPTION OF DEBT
With Relinquishment of Dower
KNOW ALL MEN BY THESE PRESENTS:
THAT, we J.R. MAXFIELD, JR. and wife, KATHRYN J. MAXFIELD, hereinafter called Grantors, for and in consideration of the sum of Ten Dollars ($10) and other good and valuable considerations, to us in hand paid by MORGAN MAXFIELD, hereinafter called Grantee, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto Morgan Maxfield of Clay County, Missouri and unto his successors and assigns forever, all of the Grantors interest in certain real estate briefly described as 1,500 acres more or less, in Township 20 North Range 27 West, in Carroll County, Arkansas, known as the 5M Ranch, which property is more particularly described on Exhibit “A” and incorporated herein by reference.
TO HAVE AND TO HOLD the same unto the said Grantee and unto his successors and assigns forever, with all appurtenances thereunto belonging.
AND we hereby covenant with said Grantee that we will forever warrant and defend the title to the said lands against all claims whatsoever, said conveyance being subject to all recorded easements and encumbrances.
AND I KATHRYN J. MAXFIELD, wife of said J.R. MAXFIELD, JR., for and in consideration of the sum of money, do hereby release and relinquish unto the said Grantee all my right of dower and homestead in and to said lands.
SAID Grantee hereby assumes the payment of certain notes totaling $240,000.00 in conjunction with this transfer of the above described 1,500 acres, more or less, in Carroll County, Arkansas.
WITNESS our hands and seals on this 4th day of February, 1980.
/s/ J.R. Maxfield, Jr.
J.R. MAXFIELD, JR.
Is/ Kathryn J. Maxfield
KATHRYN J. MAXFIELD
/s/ Morgan Maxfield
MORGAN MAXFIELD

On February 4, 1980, Morgan Maxfield also executed and delivered to his father a promissory note in the amount of $95,000, payable on April 3, 1983. Jordan Maxfield, who was present, later testified that a Deed of Trust was executed by Morgan Max-field at the same time, but no Deed of Trust was recorded or introduced into evidence at the hearing. There was no reference in the promissory note to a vendor’s lien. No payment was made on the $95,000 promissory note. The warranty deed was recorded on April 4, 1980. On April 8, 1980, Morgan Maxfield executed a promissory note in the amount of $313,000 payable to Federal Land Bank of St. Louis (subsequently Farm Credit Bank of St. Louis and now Agri Bank FCB) and further executed a mortgage to secure the note. That mortgage was recorded on May 12, 1980.

Morgan Maxfield died in a plane crash on September 4, 1981, and his will was admitted to probate in Missouri. A petition for ancillary administration was filed in Carroll County, and several claims against the estate followed, including two claims by his father, J.R. Maxfield, Jr. One of those claims was for $95,000 predicated on the February 4, 1980 promissory note. The executor of the Estate objected to the claim.

On October 17, 1990, the 5M Ranch which secured the debt of the Agri Bank and allegedly the vendor’s lien of J.R. Maxfield, Jr. was sold to Dam Site Better for $338,918.84 pursuant to an order of the probate court. On January 13, 1992, appellee Jordan Max-field, Successor Trustee of the Maxfield Trust and the interest of J.R. Maxfield, Jr., filed an amended petition for declaratory judgment in chancery court asking that the $95,000 debt be declared to be a vendor’s lien with first priority. Farm Credit Bank as predecessor to Agri Bank responded that its mortgage was in fact superior and that no vendor’s lien for the $95,000 debt had been retained by the Maxfields. It counterclaimed for an unpaid debt of $255,761.72 on its note plus interest, late charges, and attorneys fees, and prayed for foreclosure of its mortgage.

On June 4, 1993, the chancellor entered an order and found as follows on the vendor’s lien question:

A vendor’s lien is created when the grantor of the real property retains in the document transferring title a lien securing the purchase price of the property. . . . The warranty deed clearly recites an existing indebtedness at the time the deed was executed. Even though the Deed provides for an assumption of the debt, that doesn’t mean that it wasn’t for a part of the purchase price of the property. In fact, there wasn’t any testimony indicating the $240,000.00 debt mentioned in the deed was ever paid. The document creating the vendor’s lien is clear and unambiguous and [the] Court does not need to go beyond it. The Court finds that a vendor’s lien was retained by J.R. Max-field in the property.

The chancellor then granted Jordan Maxfield, Successor Trustee, a vendor’s lien securing the $95,000 promissory note and decreed it to be a first lien against the net sale proceeds of $338,918.84 derived from the sale of the 5M Ranch.

Agri Bánk contends that the chancellor erred as a matter of law in finding that the warranty deed evidenced a vendor’s lien on its face. We agree that this was error and reverse on this point.

The warranty deed in question was styled “Warranty Deed With Assumption of Debt With Relinquishment of Dower” and stated, “grantee hereby assumes the payment of certain notes totaling $240,000.00 in conjunction with this transfer of the above described 1,500 acres . . . .” There was no mention of the new $95,000 promissory note in the deed. Jordan Maxfield, Successor Trustee, urges that the express reference to the assumed payment “of certain notes” and the fact that part of the purchase price remained unpaid are enough to evidence a vendor’s lien for the $95,000 note. We do not agree. A vendor’s lien must either be stated in the deed or appear from the face of the deed. Beard v. Bank of Osceola, 126 Ark. 420, 190 S.W. 849 (1916). Here, neither circumstance occurred with respect to the new debt of $95,000.

There is a practical problem here, which we alluded to in a case dealing with a priority between mechanics liens and construction money mortgages, and which we believe to be relevant. See Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S.W.2d 863 (1957). In Barton, we said:

Practical considerations also sustain the view we have adopted, we think. It would place a great burden on materialmen and, in particular, laborers not to be able to rely on public records for protection. Otherwise they would have to rely on hear-say (sic) and oral agreements, and would have to make extensive investigations for which they are ill equipped. We have examined the authorities on which appellant, East, relies to show that actual notice is sufficient but fail to find in (sic) any merit in them as they pertain to a different situation.

228 Ark. at 305-306, 307 S.W.2d at 866.

The same holds true for Agri Bank in the case before us. The warranty deed at issue was recorded on April 4, 1980, and its mortgage from Morgan Maxfield signed four days later was recorded on May 12, 1980. Examination of the deed records would not have alerted a prudent researcher that a vendor’s lien for a new promissory note in the amount of $95,000 had been retained. Partial payment by promissory note and. by assumed debt are simply different means of satisfying the purchase price. The one does not necessarily follow the other. We conclude that the assumed debt language by itself did not put third parties, including Agri Bank, on notice that a vendor’s lien in the amount of $95,000 for the new promissory note had been retained.

We reverse and remand for an order in accordance with this opinion.

Reversed and remanded.

Holt, C.J., and Newbern, J., dissent.

Corbin, J., not participating.

Jack Holt, Chief Justice,

dissenting. I dissent. The majority points out the pertinent language from the “Warranty Deed With Assumption of Debt” which stated that in consideration of ten dollars and other good consideration the grantors conveyed the 5M Ranch, with the following declaration:

SAID Grantee hereby assumes the payment of certain notes totalling $240,000.00 in conjunction with this transfer of the above described 1,500 acres, more or less, in Carroll County, Arkansas.

Morgan Maxfield, the grantee, signed the warranty deed and executed a promissory note dated the same day as the warranty deed, in favor of J. R. Maxfield, Jr. in the amount of $95,000.00. The thrust of Agri Bank’s argument is that since the $95,000.00 note was not specifically set out in the warranty deed, then a vendor’s lien was not created. After a hearing, the chancellor determined that the warranty deed was unambiguous and evidenced on its face a vendor’s lien in favor of the trust, and further declared its priority over Agri Bank’s mortgage, to which I agree.

I take issue with the majority’s holding that the warranty deed with assumption of debt as written did not put Agri Bank on notice of the outstanding indebtedness. It is well settled that a vendor of land has an equitable lien on the land for the unpaid purchase price. Wilson v. Shocklee, 94 Ark. 301, 126 S.W. 832 (1910). Furthermore, a mortgagee who accepts a mortgage which recites a prior mortgage is estopped to deny the superiority of the prior mortgage. Id. Although our cases in this area are limited in number and are of some vintage, the law on vendor’s liens has been addressed. Vendor’s liens are discussed in Talieferro v. Barnett, 37 Ark. 511 (1881), wherein we held that a deed reciting that the land conveyed was held bound for the payment of the notes given was a valid expression of a lien. In addition this court has held that a subsequent purchaser is affected with notice of all recitals in the title deeds of his vendor, whether recorded or not. Graysonia-Nashville Lumber Co. v. Saline Dev. Co., 118 Ark. 192, 176 S.W. 129 (1915). In Graysonia we noted an even older case, Gaines v. Summers, 50 Ark. 322, 7 S.W. 301 (1887) where we stated:

A person purchasing an interest in lands, “takes with constructive notice of whatever appears in the conveyances constituting his chain of title.” If anything appears in such conveyances “sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and if he does not make it, he is guilty of bad faith or negligence,” and the law will charge him with the actual notice he would have received if he had made it.

Gaines, 50 Ark. 322, 327, 7 S.W. 301, 302.

We have long held that if a purchaser is informed by recitals in his chain of title that property has been sold on credit, he is bound to inform himself as to whether this debt has been paid. Stroud v. Pace & Allison, 35 Ark. 100 (1879); and where purchase money notes were described in deed, those notes constituted notice that the vendor had a lien for the unpaid purchase money. Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S.W. 682 (1924). One cannot rely on an abstract in the face of recitals in a deed since a mistake in the abstract of title would not relieve one from making inquiries suggested by the deed itself. Union & Planters’ Bank & Trust Co. v. Simmons, 166 Ark. 285, 265 S.W. 953 (1924). Union & Planters’ Bank & Trust was not relieved from inquiry since the deeds had recitals even though the mortgagor made a statement in his loan application that there were no liens on the land to be mortgaged. Id.

The same principles ring true in this case. The recital in the Warranty Deed with Assumption of Debt put Agri Bank on notice that there was some outstanding indebtedness which placed on it the responsibility of making inquiry as to whether this prior indebtedness had been paid. They, like the bank in Union & Planters’ Bank & Trust, could not rely on an abstract or statements of Morgan Maxfield, mortgagor, when the deed reflected a prior indebtedness. Having failed to make responsible inquiry, Agri Bank cannot now complain.

The other argument raised by Agri Bank is not addressed by the majority, but I will address it here for it too is without merit. Agri Bank alternatively argues that if there was a valid vendor’s lien, then J. R. Maxfield, Jr. waived this vendor’s lien by accepting a deed of trust. Agri Bank points out that at the hearing Jordan Maxfield testified that concurrently with the execution of the warranty deed, Morgan Maxfield gave J. R. Maxfield, Jr. a deed of trust and that J. R. Maxfield, Jr. accepted this deed of trust as security. This deed of trust was never recorded nor was the document ever produced. It was allegedly in the possession of Morgan Maxfield after its execution, and Morgan died before this action came before the chancellor. Considering Jordan Maxfield’s testimony, Agri Bank asserts that any vendor’s lien was waived and that the trust must rely on the deed of trust to establish the existence and priority of the lien. The deed of trust being unrecorded, Agri Bank asserts priority.

A deed of trust is in legal effect a mortgage, Tate v. Dinsmore, 117 Ark. 412, 175 S.W. 528 (1915), and if a mortgage is given, then an equitable vendor’s lien is indeed extinguished as the vendor must then rely upon the mortgage. See Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S.W.2d 863 (1957). However, as this court said in Chapman v. Chapman, 55 Ark. 542, 544, 18 S.W. 1037, 1037 (1892):

In the absence of an express waiver of a vendor’s equitable lien for unpaid purchase money of land, or circumstances which show that it was his intention to waive it, the lien exists. “If under all the circumstances it remains in doubt, then the lien attaches.” Generally, the acceptance of security other than the obligation of the vendee is evidence of intention to waive the vendor’s lien and rely upon the other security. But this is only prima facie evidence of waiver. Each case must be determined upon its particular circumstances.

It was evident in Chapman that where there was a mortgage taken in exchange of the vendor’s lien but it was invalidly acknowledged, no intent to waive the vendor’s lien could exist until a valid recorded mortgage was received.

The trust cites Chapman and asserts that, though it may be presumed that some document was executed, there is no proof that this document was a valid deed of trust, that it covered the lands in question, or that there was any intent on the part of J. R. Max-field, Jr. to rely on this deed to waive his vendor’s lien. I agree. It is well settled that those who claim under a lost deed must prove its contents by clear, satisfactory, and convincing proof. Witt v. Graves, 302 Ark. 160, 787 S.W.2d 681 (1990). In light of the limited information regarding the deed of trust and the fact that the vendor’s intent was not brought out in his testimony, neither the contents of the deed of trust nor waiver of the vendor’s lien was established.

Upon review of a chancellor’s findings, we will not reverse unless the findings are clearly erroneous or clearly against the preponderance of the evidence. Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993). Under these circumstances, I cannot say the chancellor’s decision was clearly erroneous. Thus, I dissent.

Newbern, J., joins in this dissent.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Raymond Dale DAVIS v. M.E. “Dale” REED, Warden
    93-1231
    873 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is taken from a denial of a petition for a writ of habeas corpus. The appellant, Raymond Dale Davis, contends on appeal as he did in circuit court that the original court accepting his guilty plea and sentencing him lacked jurisdiction to do so. We disagree and affirm the circuit court’s decision to deny his petition for habeas corpus relief.

The facts precipitating Davis’s petition are undisputed. On January 6, 1992, the prosecuting attorney for the Eleventh Judicial District-West filed two felony informations for capital murder and attempted capital murder against Davis in Lincoln County Circuit Court. Lincoln County and Jefferson County comprise the Eleventh Judicial District-West. The charged offenses occurred in Lincoln County.

Davis subsequently entered into plea negotiations with the prosecutor. On May 6, 1992, Circuit Judge Randall Williams of the Eleventh Judicial District-West signed an order setting a hearing in the Jefferson County Courthouse for the purpose of taking a guilty plea from Davis and for sentencing. That order was filed with the circuit clerk in Lincoln County. On May 12, 1992, the plea proceedings and sentencing were held before Judge Williams in the Jefferson County Courthouse. Davis pled guilty to each of the three counts and was sentenced to 30 years imprisonment and two terms of life without parole, to run consecutively. Two reports of the plea negotiations and a judgment and commitment order were filed with the Lincoln County Circuit Clerk on the same day. Davis was subsequently incarcerated in the Arkansas Department of Correction.

On June 18, 1993, Davis filed a pro se petition for a writ of habeas corpus in Lincoln County Circuit Court, alleging that Judge Williams, who accepted his plea of guilty and sentenced him in Jefferson County, lacked jurisdiction to do so. Appellee M.E. Dale Reed, Warden of the Cummins Unit, moved to dismiss the petition, and the circuit court in Lincoln County with Judge Fred D. Davis, III, sitting denied the petition on the basis that the appellant had raised a venue question and not a jurisdictional issue as required for habeas corpus relief. This appeal followed.

We note initially that a writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992); Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991); Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990); Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989). An appeal is the proper procedure for the review of a circuit court’s denial of a petition for a writ of habeas corpus. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); In Re Review of Habeas Corpus Proceedings, 313 Ark. 168, 852 S.W.2d 791 (1993). On appeal, Davis argues the circuit court in Jefferson County lacked jurisdiction to take his plea and sentence him. His jurisdictional argument appears to embrace improper venue in Jefferson County and the absence of authority vested in Judge Randall Williams to act on his case.

To begin with venue and jurisdiction, though sometimes used interchangeably, are two distinct legal concepts. Venue is the geographic area, like a county, where an action is brought to trial. Black’s Law Dictionary 1557 (6th ed. 1990). Jurisdiction is the power of a court to decide cases and presupposes control over the subject matter and parties. Black’s Law Dictionary 853 (6th ed. 1990). This court has stated that venue may be waived in a criminal case within the territorial boundaries of the judicial district. See Waddle v. Sargent, supra; see also Ark. R. Crim. R 24.8(c)(1) (waiver of venue for plea of guilty for a second offense committed in another jurisdiction). Since Davis entered his plea in Jefferson County, a contemporaneous objection was required to raise the issue of improper venue and preserve it for appeal. Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985). In Harrod, the venue issue was decided by the defendant’s failure to object to venue at sentencing and to request transfer to another county within the same judicial district. In the case before us, the same objection was lacking on Davis’s part. Indeed, he voluntarily participated with counsel in the guilty plea and sentencing in Jefferson County. Any venue argument which Davis might have had was waived, and his objection cannot be raised for the first time on appeal.

For his second point, Davis appears to urge that the circuit judge — Randall Williams — had no authority to conduct any proceedings in this case. We begin by underscoring the fact that Judge Williams was a circuit judge for the Eleventh Judicial District-West. A circuit judge has the authority to preside over proceedings in any courtroom, in any county, within the judicial district for which that judge was elected. Ark. Code Ann. § 16-13-210 (1987); Waddle v. Sargent, supra. In Waddle, we said:

Article 7, Section 13 of the Arkansas Constitution provides that a circuit judge “shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.” (Emphasis added). In accordance with these provisions of our constitution, Ark. Code Ann. § 16-88-105 (1987) provides that circuit courts shall have jurisdiction to try criminal offenses within the bounds of the geographical judicial district as follows: “The local jurisdiction of circuit courts . . . shall be of offenses committed within the respective counties in which they are held.” (Emphasis added). Similarly, Ark. Code Ann. 16-13-210 (1987) provides that a circuit judge who is “physically present in the geographical area of the judicial district which he serves as judge may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides[.]” (Emphasis added).

313 Ark. at 541-542, 855 S.W.2d at 920.

Since'both Jefferson and Lincoln Counties comprise the Eleventh Judicial District-West, Judge Williams had authority to preside over Davis’s plea to a Lincoln County charge even though the hearing was conducted in Jefferson County. The only issue under § 16-13-210 is whether venue was appropriate, but, again, Davis waived any argument of improper venue by his failure to object. Harrod v. State, supra.

Davis cites Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986) in support of his argument, but the factual situation in that case is clearly distinguishable from Davis’s predicament. In Dix, we stated that a circuit court did not have jurisdiction to try an offense committed “elsewhere,” but in that case the term “elsewhere” referred to a county outside of the court’s judicial district. Unlike the situation in Dix, the proceedings against Davis in this case were conducted wholly within the Eleventh Judicial District-West. Davis was accused df crimes occurring in Lincoln County by an information filed in Lincoln County. The order for a plea hearing, the two reports of plea negotiations, and the judgment and commitment order were all filed in Lincoln County. The lone event which occurred outside Lincoln County was the plea proceeding and sentencing which was conducted by the circuit judge in Jefferson County. We hold that Davis was tried before a circuit judge who had jurisdiction over his criminal case.

Davis’s last allegation of error is that the circuit court failed to comply with the provisions of Article 2, Section 10 of the Arkansas Constitution because there was no change of venue pursuant to Ark. Code Ann. § 16-88-209 (1987). Section 16-88-209, however, is only apposite when a case is removed from one county to another county due to prejudice on the part of the original county’s inhabitants. Ark. Code Ann. § 16-88-201 (1987). That section is not pertinent to. this case.

Affirmed.


text:
    IBM CREDIT CORPORATION v. PULASKI COUNTY, Arkansas
    93-1194
    873 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: James M. McHaney, Jr., for appellant.

      Nelwyn Davis, for appellee.
   Robert L. Brown, Justice.

This is an assessment case which concerns the value that the Pulaski County Assessor, B.A. McIntosh, placed on used IBM mainline computers leased to Baptist Medical Center and Dillard Department Stores. The appellant, IBM Credit Corporation, advances the argument that certain trade publications like Computer Price Watch, Computer Price Guide, and the End-User Market Value Report published by Daley Marketing Corporation are more valid for determining the value of used IBM equipment since they depict the actual market for that equipment. The circuit court agreed with the valuation method used by the assessor’s office which was the cost of the computers less straight line depreciation over six years. IBM Credit raises two points on appeal: (1) whether the circuit court erred in ignoring fair market value data as set out in those trade magazines; and (2) whether straight line depreciation for a term of years is a reasonable means of determining fair market value. We find no error in the circuit court’s decision, and we affirm.

IBM Credit is in the business of leasing IBM mainline computers. The customer and IBM Corporation, which manufactures the computers, negotiate a price for the equipment. Once the price is established, the customer then assigns the right to purchase the computer equipment to IBM Credit. IBM Credit purchases the computer equipment from IBM Corporation and leases it back to the customer.

In 1992, IBM Credit provided the Pulaski County Assessor with documentation which it claimed established the fair market value of the three leased units based on actual market conditions as of January 1992. This documentation included: (1) IBM Credit’s experience as the largest dealer of used IBM computer equipment in the United States; and (2) data contained in published trade journals such as Computer Price Watch which list both wholesale and retail prices for used, intermediate-to-large IBM computer systems.

The assessor did not use IBM Credit’s “fair market” figures to determine the value of the three used computers. Instead, he chose to use a cost-less-depreciation schedule over a six year period. This valuation method, according to the assessor, had been used to value all computers in Pulaski County since the early 1980’s. He valued IBM Credit’s two computer systems leased to Dillard’s and one computer system leased to Baptist Medical Center at $7.61 million using straight line depreciation and a useful life of six years. IBM Credit’s total value for these same three computer systems using its prices garnered from trade publications was $5.85 million.

IBM Credit challenged the assessor’s valuation methodology before the Board of Equalization, which affirmed the assessor’s figures. It then appealed to the Pulaski County Court which also affirmed the assessor’s decision. IBM Credit next appealed to Pulaski County Circuit Court and styled the case with Pulaski County, Arkansas as the sole appellee. Following a hearing, the circuit court issued a letter opinion, stating: “Although IBM’s proposed valuation might be accurate, if adopted, every computer in each ‘mom and pop’ business would have to be valued in the same manner. There is not a ‘Computer Watch,’ which mainly covers IBM products, for many of the manufacturers.” The court concluded that the assessor’s valuation figures were reasonable for the three IBM units in question and that the most practical method for arriving at the value of used equipment was the uniform method of cost less depreciation. An order affirming the decision of the county court was subsequently entered.

IBM Credit first claims that the circuit court erred in not requiring the assessor to consider its fair market data pursuant to Ark. Code Ann. § 26-26-1202(c)(Repl. 1992). § 26-26-1202(c) reads:

(c)(1) Personal property of any description shall be valued at the usual selling price of similar property at the time of listing.
(2) If any personal property shall have no well-fixed or determined value in that locality at that time, then it shall be appraised at such price as in the opinion of the assessor could be obtained at that time and place.

Pulaski County, on the other hand, relies on Article 16, § 5 of the Arkansas Constitution, which provides in part:

(a) All real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property for which a tax may be collected shall be taxed higher than another species of property of equal value. ...

The standard of review of a tax assessment is whether the assessment is “manifestly excessive or clearly erroneous or confiscatory.” Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992); Jim Paws, Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986), citing St. Louis-San Francisco Ry. Co. v. Arkansas Pub. Serv. Comm’n, 227 Ark. 1066, 304 S.W.2d 297 (1957). The burden of proof is on the protestant assessed. Summers Chevrolet, Inc. v. Yell County, supra; Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm’n, 307 Ark. 171, 818 S.W.2d 935 (1991).

It is only in the most exceptional cases that an appellate court will grant a reassessment. Jim Paws, Inc. v. Equalization Bd. of Garland County, supra. As we stated in St. Louis-San Francisco Ry. Co. v. Arkansas Pub. Serv. Comm’n, supra, “Ordinarily the Court has no jurisdiction to make a tax assessment, and if it finds error, it should remand the case to the assessing body for further proceedings in accordance with the Court’s findings.” 227 Ark. at 1069, 304 S.W.2d at 299, citing 84 C.J.S. 1123; see also Potlatch Corp. v. Arkansas City School Dist., 311 Ark. 145, 842 S.W.2d 32 (1992); Tuthill v. Arkansas County Equalization Board, 303 Ark. 387, 797 S.W.2d 439 (1990). Because of the separation of powers doctrine, it is not within the province of state courts to assess property. Tuthill v. Arkansas County Bd. of Equalization, supra.

A review of the evidence reveals that the assessor’s decision to value IBM Credit’s computers by the cost-less-depreciation method was not clearly erroneous or arbitrary or confiscatory. The publications offered by IBM Credit to establish the true market value of its computers did not list all computers that need to be assessed. The publications, therefore, lacked uniformity and in that respect differed from the “blue book” for automobiles. While arguably the publications more accurately reflect the value of IBM Credit’s computers, they do not reflect the value of all computers. To use Consumer Price Watch data to value IBM Credit’s computers would result in IBM Credit’s being treated differently than other owners of similar property, which is diametrically opposed to the dictates of Article 16, § 5. See Doniphan Lumber Co. v. Cleburne County, 138 Ark. 449, 212 S.W. 308 (1919).

Furthermore, IBM Credit’s proposed method of determining the value of computers in Pulaski County would be unduly burdensome. The evidence in the de novo hearing before the circuit court was that there are literally thousands of computers that must be assessed in Pulaski County. Not all of these computers have trade publications which list their used value; indeed, many do not.

In sum, to use a discrete methodology for valuing IBM computers and then cost less depreciation for many other brands sacrifices the very uniformity that the state constitution demands. Clearly, every other computer wholesaler and retailer assessed would have a meritorious argument of discrimination were the assessor to carve out one brand of computer for disparate treatment as compared to others.

IBM Credit next asserts that even if the assessor was free to disregard the market value data, his adoption of the straight ' line depreciation schedule was arbitrary, capricious, and confiscatory. This is so, according to IBM Credit, because the schedule fails to account for computer equipment’s functional obsolescence, as opposed to wear and tear, and assumes that all computers depreciate equally over a six year period and then cease to depreciate, which ignores market reality.

We conclude that the assessor’s straight line depreciation schedule over six years is a reasonable means for determining fair market value. This court has approved the use of cost-less-depreciation schedules for assessing other forms of personal property. See, e.g., Potlatch Corp. v. Arkansas City School Dist., supra. In Potlatch, we noted that the Assessment Coordination Division of the Arkansas Public Service Commission, which has the power of supervision and control over county assessors and boards of equalization, had published a manual to be used by county assessors which recommended three methods to arrive at market value: (1) comparable sales; (2) capitalization of income; and (3) cost less depreciation. See also Tuthill v. Arkansas County Equalization Board, supra.

The county assessor, B.A. McIntosh, testified that he attempted to factor in functional obsolescence in computers in the early 1980’s by assessing them based on a useful life of six years versus a longer term for other forms of tangible personal property. Moreover, IBM Credit’s witness, Mike Costogan, a financial marketing advisor with the company, admitted that if he needed to value a computer not listed, he would use some alternative methodology that rapidly depreciates the value of the asset such as straight line depreciation. We are not prepared to say that straight line depreciation is an arbitrary, capricious, or confiscatory means of determining value for the computers in question. The circuit court did not err in finding that the assessed values were reasonable.

Though the issue was not raised, we observe that IBM Credit failed to join as appellee any party that could have implemented a reassessment of the computer systems in question had we decided that a remand was appropriate. That failure to join the assessor or board of equalization as a party leaves a void as to who would effect the reassessment on remand.

Affirmed.

Corbin, J., not participating.


author: Per Curiam.

text:
    Louis IVORY v. STATE of Arkansas
    CR 94-285
    873 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Bill R. Holloway, for appellant.
    No response.
   Per Curiam.

Appellant seeks a rule on the clerk. The facts are that appellant was convicted of two felonies and one misdemeanor. The judgment of convictions was entered on May 19, 1993. On June 3, 1993, his notice of appeal was filed. The notice of appeal does not mention either his being an indigent or his tendering the funds to the court reporter for the record. On the same day, June 3, 1993, he filed a motion asking to be declared an indigent. On July 13, 1993, the trial court denied the motion, in part, because appellant owns unencumbered real estate having a fair market value of $40,000. On July 14, the trial court granted an extension of seven months for the docketing of the record on appeal. Appellant tendered the record to the clerk on March 10, 1994. Thus, the record was not tendered within seven months from the date of the entry of the judgment of convictions, and the clerk correctly refused to file the record.

We will grant a motion for rule on the clerk when appellant’s attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, appellant’s attorney does not admit fault, but states that there was a misunderstanding. A statement that it was someone else’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, we deny the petition.

If appellant’s attorney files a motion and affidavit, within thirty days of the date of this order, accepting full responsibility for not timely filing the record the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


text:
    Leon ROBINSON v. STATE of Arkansas
    CR 93-1273
    873 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994
    Jan Thornton, for appellant.
    No response.
   Per Curiam.

Leon Robinson was convicted of a felony and filed a timely appeal with this Court. His brief was due January 11, 1994, but his counsel, Jan Thornton, failed to file the brief on time. She contends she did not receive notice from the Office of the Clerk of this Court setting the briefing schedule, but she acknowledges it was her responsibility to file the brief on time.

While we deem the explanation for the failure to present the brief to this Court inadequate, we grant the motion to file a belated brief because this is a criminal case and we cannot allow failure of counsel to deprive a criminal defendant of his appeal. The matter is referred to the Committee on Professional Conduct for whatever investigation and possible action it may deem proper. Stone v. State, 288 Ark. 472, 705 S.W.2d 441 (1986).


author: Jack Holt, Jr., Chief Justice.

text:
    James NEAL, as Executive Director of the Supreme Court Committee on Professional Conduct v. Jimmie L. WILSON
    93-691
    873 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994
    [Rehearing denied May 23, 1994.]

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellant.

      Friday, Eldredge & Clark, by: Jerry L. Malone, for appellee.

      Newbern, J., not participating.

   Jack Holt, Jr., Chief Justice.

The appellant, James A. Neal, in his capacity as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct, brings an appeal from the circuit court’s order granting appellee Jimmie L. Wilson’s motion to dismiss disbarment proceedings on the basis of the running of the statute of limitations. Mr. Neal has raised five points for reversal, arguing that (1) the trial court erred in finding that the disbarment proceeding was barred by the statute of limitations because no statute of limitations is applicable to disbarment proceedings; (2) alternatively, the trial court erred in finding that the disbarment proceeding was barred by the statute of limitations because any applicable statute of limitations had not run; (3) the trial court erred in finding that Mr. Wilson may have altered his position by agreeing to plead guilty to misdemeanor charges on the assumption that the Committee would take no further action; (4) the trial court erred in finding that rules of professional conduct were being applied that did not exist at the time the misconduct occurred; and (5) this court should hear the case de novo and pronounce such judgment as we may determine should have been pronounced below.

We agree with Executive Director Neal’s contention that the trial court erred in finding that the effective rules were those in force at the time of Mr. Wilson’s misconduct in 1982 rather than at the time of his guilty plea in 1990 and that the proceeding was ■therefore barred by the statute of limitations. For this reason, we reverse the trial court and remand this matter for further proceedings. We do not address the remaining issues relating to the circuit court’s decision because its order was predicated on the running of the statute of limitations and is consequently limited in this regard. We further decline to pronounce judgment as requested by the Executive Director in his fifth point on appeal.

Facts

In 1981 and 1982, appellee Jimmie L. Wilson, an attorney and farmer, borrowed approximately $775,230 from the Farmers Home Administration, a federal entity, for farm-operating expenses. The loan was secured by an FmHA lien on Mr. Wilson’s crops. A federal grand jury subsequently indicted him on various criminal charges relating to the disposition of proceeds from crop sales and the transfer of funds maintained in a joint bank account established in the names of the FmHA, Mr. Wilson, and his wife.

Following a jury trial in 1985 in the United States District Court for the Eastern District of Arkansas, Mr. Wilson was found guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, forty counts of knowingly disposing of property mortgaged to a government agency in violation of 18 U.S.C. § 658, and seven counts of unlawfully converting to his own use money belonging to the United States in violation of 18 U.S.C. § 641. He was sentenced to imprisonment for thirty months on the first count and to lesser concurrent terms on the others. The sentence was stayed pending appeal. On May 15, 1985, District Judge G. Thomas Eisele suspended Mr. Wilson from the practice of law in federal court “until final disposition of any disciplinary proceedings commenced in connection with the conviction.”

Meanwhile, on May 2, 1985, Darrell F. Brown, attorney for Mr. Wilson, sent the following request to Joe Phillips, Executive Secretary of the Supreme Court Committee on Professional Conduct:

In order that Mr. Jimmy Wilson will be aware of the policy of the Committee resulting from our discussion, I would appreciate you forwarding to me a “To Whom It May Concern” type letter advising that at this time it is the position of the Committee not to revoke the license until the appellate process has been exhausted. . . .'

On May 8, 1985, Mr. Phillips responded with the following statement:

It is presently the policy of the Committee on Professional Conduct not to take any action against a licensed attorney who has been convicted of a crime until the appeal process for that attorney is completed.

Mr. Wilson appealed his conviction, which was affirmed by the Eighth Circuit Court of Appeals in U.S. v. Wilson, 806 F.2d 171 (8th Cir. 1986).

One of the issues raised in that appeal, based on Batson v. Kentucky, 476 U.S. 79 (1986), was whether Mr. Wilson, who is black, had been denied his due process and Sixth Amendment rights due to the government’s use of peremptory challenges to strike six of seven black venirepersons. While the Eighth Circuit found no basis for reversal in Batson at that point, the United States Supreme Court opinion in Griffith v. Kentucky, 479 U.S. 314 (1987) caused the Court of Appeals to vacate its earlier decision and to remand Mr. Wilson’s case for a Batson hearing. U.S. v. Wilson, 815 F.2d 52 (8th Cir. 1987).

The District Court held a Batson hearing in July 1987 and concluded that race was not a factor in the government’s exercise of its peremptory challenges. In U.S. v. Wilson, 884 F.2d 1121 (8th Cir. 1989), the Eighth Circuit, ruling that the prima facie case of discrimination had not been overcome, reversed and remanded the matter for a new trial.

Rather than being subjected to a new trial on the existing felony charges, Mr. Wilson was charged on August 20, 1990, in a five-count misdemeanor information with three counts of converting property mortgaged or pledged to a farm credit agency to his own use in violation of 18 U.S.C. § 658 and two counts of converting public money, property, or records to his own use in violation of 18 U.S.C. § 641. Mr. Wilson appeared before federal District Judge Stephen Reasoner on August 22, 1990, and pled guilty to each misdemeanor count. The plea and its acceptance were conditioned upon the dismissal of all pending felony charges of which Mr. Wilson had previously been convicted. Judgment was entered on December 26, 1990, and Mr. Wilson was sentenced to four-and-one-half months’ imprisonment on the first count (§ 658). With respect to the remaining counts, he was placed on probation for a three-year period which was to run consecutively to the jail term. Immediately following entry of the 1990 state conviction, District Judge Eisele issued an order again suspending Mr. Wilson from federal practice “until the final disposition of any disciplinary proceedings commenced in connection with the conviction.”

On March 29, 1991, the appellant, James A. Neal, notified Mr. Wilson of a pending complaint before the Arkansas Supreme Court Committee on Professional Conduct (“the Committee”), “predicated on your entry of a plea of guilty to certain criminal offenses on August 22, 1990, in the United States District Court for the Eastern District of Arkansas.” Mr. Neal noted that “It appears the allegations of this complaint come under Rules 8.4(b) and 8.4(c) of the [amended] Model Rules.”

Mr. Wilson’s attorney, Darrell F. Brown, in a letter dated April 15, 1991, sought an extension of time for filing a response from April 23, 1991, the twentieth day following notification, until August 30, 1991. Responding by a letter dated April 19, 1991, Mr. Neal granted an extension to May 20, 1991. Mr. Brown mailed another request for an extension on May 16, 1991, which was not received by the Committee until May 20, the final day of the extended period. On June 10, 1991, Mr. Neal advised Mr. Brown that “the request for an additional extension is denied.” Moreover, the Executive Director declared, “the complaint is being processed to the Committee for its determination.”

By a certified letter dated and mailed on July 22, 1991, Mr. Neal informed Mr. Wilson of the following:

It is the unanimous decision of the Committee that your conduct in this matter violated the Model Rules of Professional Conduct, as amended. It is the further decision of the Committee to institute disbarment proceedings against you on the basis of that conduct.
In lieu of the filing of a disbarment suit, the Committee will give you the opportunity to voluntarily surrender your Arkansas attorney’s license. . . .

Mr. Brown responded on behalf of his client in a letter dated July 24, 1991, informing the Executive Director that Mr. Wilson “disagrees with the decision of the committee to institute disbarment proceeding and at this time does not wish to voluntarily surrender.” In addition, the appellee’s attorney advised the Committee that the matter was still on appeal in the Eighth Circuit Court of Appeals. (The record, however, does not support the attorney’s contention.)

On October 9, 1991, Mr. Neal, as Executive Director of the Committee on Professional Conduct, filed a complaint for disbarment in the Phillips County Circuit Court pursuant to Section 6B(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, which were adopted on a trial basis by per curiam order on July 16, 1990. Section 6B(1) requires the Committee to institute a disbarment action when the complaint against an attorney is based on a conviction of a felony or a criminal act that, under the terms of Rule 8.4(b) of the Model Rules of Professional Conduct, reflects adversely on the attorney’s “honesty, trustworthiness or fitness as a lawyer in other respects.”

Mr. Wilson filed a motion to dismiss for failure to state a cause of action. In the motion, Mr. Wilson asserted that he had not, under the terms of Section 6B(1) of the Procedures, been convicted of a felony and that, within the meaning of the language of Rule 8.4(b), he had not committed a criminal act that reflects adversely on his honesty, trustworthiness, or general fitness as a lawyer. He characterized the conduct to which he had pled guilty as nothing more — apart from the involvement of an agency of the federal government — “than a simple breach of contract.”

On December 18, 1991, the Committee filed a motion for summary judgment. Mr. Wilson filed a supplement to his motion to dismiss on February 21, 1992, in which he stated:

6. Rule 8.4(b), the rule which Defendant is accused of violating, was adopted by per curiam order of the Arkansas Supreme Court on December 16, 1985, and became effective on January 1, 1986. These rules apparently replaced the then-existing Code of Professional Responsibility adopted by per curiam order of June 21, 1976 (See 260 Ark. 910), which became effective on July 1, 1976. Consequently, the Model Rule which the defendant is accused of violating was not in existence at the time of the alleged conduct which provides the basis for these disbarment proceedings. (Further, the Procedures, including Sections 5.6 and 6.B.(1), were not adopted until the Arkansas Supreme Court did so on a trial basis by per curiam order of July 16, 1990.)

In addition, Mr. Wilson asserted that disbarment proceedings are civil in nature and are subject to the rules of civil procedure, which entail application of a five-year statute of limitations to offenses which occurred nine to eleven years earlier.

A hearing was held on April 6, 1992. In a letter opinion dated February 16, 1993, the trial court reiterated its finding at the hearing that the statute of limitations applied. The circuit judge also commented that Mr. Wilson’s due process rights would be violated by adherence to rules of professional conduct not in effect at the time the misconduct occurred. He further stated:

The Court is convinced that Mr. Wilson conducted himself in a manner, because of which the committee, had it acted in a more timely fashion, could have disciplined him under an appropriate rule. . . . [I]t appears that the State Committee ill advisedly waited for the Federal Committee to perform. However, the Federal Committee did suspend Mr. Wilson’s privilege of practicing law in the Federal Courts in 1985. Yet, the State Committee still took no position.
Whether it comes under statute of limitations, laches, waiver or some other legal theory, Mr. Wilson may well have agreed to the misdemeanor charge, after two felony conviction reversals, on the premise that the state was going to do nothing and thus altered his position for several possible reasons.
The State Committee chose to wait too long, and the defendant’s motion to dismiss is granted and the State’s complaint for suspension is dismissed.

On March 3, 1993, the trial court’s formal order of dismissal was filed, along with its letter opinion; based on the reasons set forth in the opinion, and primarily on the application of the statute of limitation, Mr. Wilson’s motion to dismiss was granted, and the Committee’s complaint was dismissed with prejudice, as well as its motion for summary judgment upon its complaint, which was denied for mootness. A notice of appeal was filed on March 15, 1993.

Standard of review

The present appeal arises from the judgment of the circuit court dismissing the complaint for disbarment filed by Mr. Neal on behalf of the Committee. In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. R 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989). In deciding such motions, the trial court must look only to the allegations in the complaint. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

Here, the complaint, filed on October 9, 1991, provided pertinent information.about Mr. Wilson’s pleas of guilty on the misdemeanor charges as well as considerable detail about the conduct that ultimately led to those pleas. Included were the dates 1981 and 1982 for the illegal grain sales and fund transfers as well as the August 1990 plea proceedings. Accepting those dates as true, the circuit court determined that the statute of limitations was applicable and prohibited the Committee from pursuing the disbarment proceeding.

Judicial authority to regulate practice of law

The power to regulate and define the practice of law is a prerogative of the judicial department as one of the divisions of government. Weems v. Supreme Ct. Comm, on Prof. Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975), reh’g denied, 257 Ark. 685-A, 523 S.W.2d 900 (1975). Our responsibility is set forth explicitly in Amendment 28 of the Arkansas Constitution: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”

Statute of limitations and rules of professional conduct

The issues involving .the applicability of the statute of limitations and the rules of professional conduct promulgated by this court are closely intertwined. It is, however, unnecessary for us to address the questions raised concerning the applicability and running of the statute of limitations because the operative Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, adopted (prior to Mr. Wilson’s guilty plea) by per curiam order on July 16, 1990, focus upon the fact of conviction rather than the allegation of misconduct. The entire question of the statute of limitations is, therefore, a non-issue. The Committee’s action for disbarment, filed on October 9, 1991, was by any definition timely, having followed Mr. Wilson’s plea of guilty on August 22,1990, by approximately thirteen and one-half months.

This consideration brings us to the Executive Director’s fourth point for reversal, in which he asserted that the trial court erred in finding that the rules of professional conduct that were invoked by the Committee in its disbarment action did not exist at the time of the misconduct and, as a result, that Mr. Wilson was denied due process of law.

Implicit in the trial court’s letter opinion is the view that the operative rule at the time of Mr. Wilson’s misconduct was Rule X of the Rules of the Court Regulating Professional Conduct of Attorneys at Law, 260 Ark. 910 (1976), adopted by per curiam order on June 21, 1976, and made effective July 1, 1976. That rule provided, in relevant part:

If an attorney has been convicted of a felony or infamous crime under the laws of any State or the United States, a charge may be made by complaint filed with the Committee with the Clerk of a Court of proper venue under these Rules. . . . The sole issue to be determined shall be whether the crime warrants discipline and, if so, the extent thereof. . . .

(Emphasis added.) Rule X afforded the Committee greater discretion in filing a complaint than is now the case, and the conduct in question, consisting of either a “felony” or an “infamous crime,” was narrower in scope than at present.

Section 6A of the current Procedures states that:

All prosecuting attorneys and judges participating in or presiding over a hearing in which an attorney is convicted of, pleads guilty to, or pleads nolo contendere to a crime which is a Class A misdemeanor or greater offense, shall have the duty to report such conviction or plea to the Executive Director.

(Emphasis added.) Section 6B(1), under which the Executive Director filed his complaint on October 9, 1991, states, as quoted earlier, that:

When a complaint against an attorney is based on a conviction of a felony or a crime which also violates Rule 8.4(b) of the Model Rules of Professional Conduct, the Committee shall institute an action of disbarment.

(Emphasis added.)

As Section 6 clearly indicates, it is the conviction, or, as in this instance, the guilty plea, that triggers the mandatory disbarment action against an attorney. Prior to conviction, no such action is required. As a practical matter, the present Procedures emphasize taking action upon actual conviction or pleas of guilty or nolo contendere more so than conducting proceedings independently prior to trial for alleged violations of the Model Rules of Professional Conduct.

In sum, the cause of action did not accrue until August 22, 1990, the date on which Mr. Wilson entered his guilty plea. As for the 1985 felony conviction, the Committee decided, as a matter of policy stated in its letter of May 8, 1985, “not to take any action ... until the appeal process ... is completed.” Granted, the Committee had the option of proceeding at the time the misconduct occurred, but it chose not to do so. Rather, it deferred to the pending federal court matter, as it had a right to do. This deferment inured to Mr. Wilson’s benefit, for he was permitted to continue his practice of law in the state courts while his case meandered in its course for some ten years of trial, appeal, and rehearings in the federal system. In any event, Mr. Wilson’s 1985 federal felony conviction was overturned and is irrelevant for purposes of this appeal; we look, instead, to his 1990 conviction as the basis for the Committee’s charge.

Rule 8.4(b), which defines “professional misconduct” in part as the commission of “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” and which comprehends the misdemeanor charges to which Mr. Wilson pled guilty, was effective as part of the Model Rules of Professional Conduct on January 1, 1986, having been adopted by per curiam order on December 16, 1985. In the Matter of the Arkansas Bar Association: Petition for the Adoption of Model Rules of Professional Conduct, 287 Ark. 495, 702 S.W.2d 326 (1985). The supplemental Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, under which the Executive Director filed the complaint for disbarment, were effective on July 16, 1990, the date of our per curiam. In the Matter of Procedures of the Arkansas Supreme Court Committee Regulating Professional Conduct of Attorneys at Law, 303 Ark. 725, 792 S.W.2d 323 (1990). Both were controlling when Mr. Wilson pled guilty on August 22, 1990.

In passing, we note that Mr. Wilson’s reliance on Sexton v. Supreme Ct. Comm, on Prof. Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988), is misplaced. In that case, attorney Sam Sexton, Jr., was charged with misconduct under the Model Rules that became effective at the beginning of 1986. We held, however, that because the acts in question occurred in 1983, it was a violation of due process to charge Mr. Sexton under a rule that was not in effect at the time of the alleged misconduct. “Due process,” we said, “requires notice that an act is punishable at the time it is committed. ... It might not matter if the rules were substantively the same, but we find a significant difference between the old rule . . . and the new rule . . . .” 295 Ark. at 144, 747 S.W.2d at 96. Still, we held it permissible for the Committee to proceed under the Code of Professional Responsibility, the now-superseded body of rules that was in effect in 1983.

Two factors distinguish the Sexton case from the present appeal. There, attorney Sexton was appealing a one-year suspension, while here the Executive Director of the Committee on Professional Conduct is appealing the dismissal of a complaint for disbarment. Further, since the Sexton decision was handed down in 1988, this court has adopted the supplementary Procedures that contain the language of Section 6B(1) making a mandatory disbarment action contingent upon “conviction of a felony or a crime which also violates Rule 8.4(b) of the Model Rules of Professional Conduct.” (Emphasis added.) We hold that the Sexton case is not controlling under the circumstances.

Wilson’s reliance on Committee policy

Mr. Neal maintains, in his third point for reversal, that the trial court also erred in commenting that Mr. Wilson may have altered his position by agreeing to misdemeanor charges in the belief that the Committee would take no action. As noted earlier, we do not reach this issue because the trial court’s order focused on the running of the supposedly applicable statute of limitations, and our inquiry is consequently limited in scope to that question. Any speculation by the trial court regarding Mr. Wilson’s motivation in entering a guilty plea amounted to unverifiable dicta.

Requested pronouncement of judgment

Relying on Section 5H(3) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Mr. Neal requests that this Court, in its de novo review, “pronounce such judgment as in its opinion should have been pronounced below.” He has, however, overlooked a crucial phrase in the section:

Appeals from any action by the Committee after hearing shall be heard de novo on the record and the Arkansas Supreme Court shall pronounce such judgment as in its opinion should have been pronounced below[.]

This appeal arises from a decision of a circuit court and is not governed by Section 5H(3).

The applicable provision, Section 5H(4) follows:

Appeals from any judgment of a Circuit.Court in a disbarment proceeding shall be heard in accordance with the rules governing appeals of civil cases.

Although disbarment proceedings are heard de novo on appeal, Weems v. Supreme Court Committee on Professional Conduct, supra, it would be inappropriate for this Court to render judgment in this case because the appeal is from a motion to dismiss. The matter must be remanded to the circuit court.

Long ago, United States Supreme Court Chief Justice John Marshall, in a disbarment case involving former Vice-President Aaron Burr, observed:

On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the Court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the Court itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of interposing its authority, and would do so only in a plain case.

Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530 (1824). See also Hurst v. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 S.W.2d 697 (1941); Maloney v. State, 182 Ark. 510, 32 S.W.2d 423 (1930); Beene v. State, 22 Ark. 149 (1860). This,as any other disbarment proceeding, is a difficult case for consideration. Yet because the matter was dismissed by the circuit court, we have no basis for “interposing [our] authority” at this point.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Newbern, J., not participating.


text:
    Jeff RICKS v. STATE of Arkansas
    CR 94-109
    873 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994
    [Rehearing denied May 23, 1994.]

      Phyllis B. Worley, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.

      Newbern, J., not participating.

   Jack Holt, Jr., Chief Justice.

The appellant, Jeff Ricks, raises two issues in this appeal from his conviction on a class A misdemeanor charge of theft by receiving. He challenges the sufficiency of the evidence and questions the trial court’s interpretation of Ark. Code Ann. § 5-4-403 (Repl. 1993), the statute governing the imposition of concurrent or consecutive sentences. Neither point has merit, and we affirm the trial court’s judgment.

Ricks was charged by information on April 27, 1993, with theft by receiving, a class C felony, in violation of Ark. Code Ann. § 5-36-106(a) and (e)(2) (Repl. 1993), and with being a habitual offender in violation of Ark. Code Ann. § 5-4-501 (Repl. 1993). According to the affidavit for the arrest warrant, Joy Goodman notified the White County Sheriff’s Department on April 26, 1993, that Ricks had wanted to trade an RCA color television set, which she believed might have been stolen, for her father’s truck. That day, the affidavit noted, Sgt. Kyle Stokes of the sheriff’s office examined the television set and determined, by checking the serial number, that it had been stolen from the residence of Mary Lee on April 20, 1993. The information report estimated the value of the set to be $2,500.

At the time of his arrest, on April 26, 1993, Ricks was on parole from the Arkansas Department of Correction (“ADC”) for a previous felony conviction. Fifteen days later, his parole was revoked, and he was transferred to the ADC to serve the balance of his sentence. There he remained until his trial on the theft by receiving charge.

A bench trial was held on September 30, 1993. From photos presented by the state, Ms. Lee identified an RCA television set and a remote control as items that had been taken from her house. She testified that her brother had purchased the set the year before and had paid $600 for it. The defense presented an appraisal from the RCA dealer who had sold the television set to Ms. Lee’s brother. In the dealer’s opinion, the model, which had been discontinued, was worth $175. On that basis, the trial court reduced the theft-by-receiving charge against Ricks to a class A misdemeanor under Ark. Code Ann. § 5-36-106(e)(3) (Repl. 1993).

The trial court found Ricks guilty of the charge and sentenced him to one year in the county jail, crediting him with fifteen days which he had served between his arrest on April 27, 1993, and his return to the Arkansas Department of Correction on May 11, 1993, on the felony parole revocation based on the arrest. The court ordered that if Ricks were released from the Department of Correction prior to the expiration of his 350 days, he should be delivered into the custody of the White County Detention Center to complete the misdemeanor sentence.

In a motion to correct sentence, the defense contended that, pursuant to Ark. Code Ann. § 5-4-403(b) (Repl. 1993), the misdemeanor sentence should be discharged by the felony sentence and that Ricks should not be required to serve any additional time after his release from the Department of Correction. The trial court denied the motion, and this appeal followed.

I. Sufficiency of the evidence

We first address Ricks’s challenge to the sufficiency of the evidence, as it must be considered prior to a review of any other asserted trial error. Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994); Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994).

Ricks contends that neither the Arkansas test for substantial evidence as set forth in Jones v. State, 269 Ark. 119, 589 S.W.2d 748 (1980), nor the federal test as set forth in Jackson v. Virginia, 443 U.S. 307 (1979), have been met in the present case. The federal standard is of no particular relevance, but this court has often held that, on appeal, the evidence is reviewed in the light most favorable to the appellee (in this instance, the state) and that the judgment will.be affirmed if there is any substantial evidence to support the jury’s verdict. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993).

Evidence is substantial when it is forceful enough to compel a conclusion one way or the other, beyond suspicion and conjecture. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). This court need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

The offense of theft by receiving is defined at Ark. Code Ann. § 5-36-106 (Repl. 1993):

(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.
(b) For purposes of this section, “receiving” means acquiring possession, control, or title or lending on the security of the property.

(Emphasis added.)

According to Ricks, the state failed to prove that he was ever in possession of the television set. He asserts that the only evidence that linked him with the stolen property was the testimony of Joy Goodman, who had previously been convicted of theft of property. Ms. Goodman stated that on April 26, 1993, Ricks came to her father’s residence in Judsonia and offered to trade a television set for a 1970s-vintage pickup truck belonging to Ms. Goodman’s father. Acting on behalf of her father, who was intoxicated, Ms. Goodman accompanied Ricks to a trailer where the appellant had stored the set in a bathroom. She described the televison as being “cable ready” and appearing to be of greater value than her father’s truck. She also saw a disassembled water bed in the bathroom. Ricks and Ms. Goodman then transported the set to her father’s residence. Because Ms. Goodman’s father had no cable hookup, Ms. Goodman and Ricks were unable to get a picture when they tested the televison.

Ms. Goodman testified that Ricks spent the night with her niece in one of the rooms in her father’s house. The next morning, Ms. Goodman took the remote control to the Auto Zone, a store where her friend, Mary Lee, worked, as Ms. Goodman was aware that Ms. Lee’s residence had been burglarized recently. Ms. Lee phoned her mother, who came to the store and, agreeing that the remote control was the one that was stolen, phoned the police.

After giving a statement, Ms. Goodman returned to her father’s house. Ricks was still present. Subsequently, a sheriff’s deputy arrived, and, Ms. Goodman said, when Ricks saw the patrol car, he “walked to the back of, you know, behind the house and then ran.” Ms. Goodman turned the television set over to the Sheriff’s Department.

On appeal, Ricks objects that the trial court “took Goodman’s word that the television got into her home because appellant brought it there to trade it for a truck that she testified was a junker.” As this court has long held, however, where witness credibility is involved, wide discretion is accorded the fact-finder, who has the opportunity to observe the witnesses. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993); Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993). Further, in instances where the only issue for determination on appeal is the trial court’s assessment of a witness’s credibility, we defer to the trial court’s factual findings. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

The trial court also had testimony before it from Ms. Lee, who identified the television set in question as the one taken from her residence. Moreover, she also stated that a water bed, a jewelry box, and money had been taken in the burglary. Ms. Goodman, as mentioned earlier, testified to having seen a disassembled water bed in Ricks’s bathroom when she went with Ricks to pick up the television set.

Sergeant Kyle Stokes of the White County Sheriff’s Department testified that on April 26, 1993, he met with Ms. Goodman and Ms. Lee at the Auto Zone in Searcy, where Ms. Lee worked. Ms. Lee had identified an RCA remote control device that Ms. Goodman showed her as one that had recently been stolen from her house. Sergeant Stokes then went to the sheriff’s office, where he took a statement from Ms. Goodman. When he arrived at Ms. Goodman’s father’s house, Sergeant Stokes testified, he saw Ricks “standing at the front portion of the house in the driveway. He said something or mouthed something to Ms. Goodman, turned, saw me, and started walking toward the back of the house.” The deputy went into the house, checked the serial number on the television set, and then went outside to locate Ricks. “Approximately fifteen seconds between the time I checked the t.v. and the time I went outside passed,” Sergeant Stokes recalled, “and he was nowhere in sight. The backyard was approximately seventy-five yards long, and it was completely mud soaked.” A person’s flight to avoid arrest can be considered as corroboration of evidence tending to establish his guilt. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993).

Suffice it to say, there was substantial evidence from which the trial court, as finder of fact, was able to determine that Ricks was guilty of theft by receiving.

II. Interpretation of Ark. Code Ann. § 5-4-403

The present appeal also questions the trial court’s interpretation of Ark. Code Ann. § 5-4-403 (Repl. 1993), as applied to the circumstances of Ricks’s sentencing. That statute provides:

(a) When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless the court orders the sentences to run consecutively.
(b) When a sentence of imprisonment is imposed on a defendant who has previously been sentenced to imprisonment, whether by a court of this state, a court of another state, or a federal court, the subsequent sentence shall run concurrently with any undischarged portion of the previous sentence unless the court imposing the subsequent sentence orders it to run consecutively with the previous sentence.
(c) The power of the court to order that sentences run consecutively shall be subject to the following limitations:
(1) A sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences shall be satisfied by service of sentence for a felony, and
(2) The aggregate of consecutive terms for misdemeanors shall not exceed one (1) year.

(Emphasis added.) Ricks relies on subsections (b) and (c)(1) for his contention that his felony parole-violation sentence should discharge the subsequent misdemeanor. He argues that the sentence imposed by the trial court amounts to a consecutive sentence, with jail-credit time being given for time served in the Department of Correction on the felony parole violation. Assuming this to be the case, he asserts that the misdemeanor sentence would be satisfied, under § 5-4-403(c)(l), by the time served on the felony parole violation.

However, § 5-4-403(b) provides that a subsequent sentence “shall run concurrently with any undischarged portion of the previous sentence.” The statute says absolutely nothing about the subsequent sentence being discharged by the completion of the earlier sentence'when the subsequent sentence extends beyond the earlier sentence. The statute takes as a given the probability that a misdemeanor sentence will be shorter in duration than a felony sentence and thus contemplates that the former’s terminal date will fall within the latter’s actual span.

As for § 5-4-403(c)(l), that subsection pertains to the power of the court to order consecutive as opposed to concurrent sentences and is inapplicable here. In any event, it, too, is silent on the question of a felony sentence being completed prior to a concurrent misdemeanor sentence. In Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986), we held that, under Ark. Stat. Ann. § 41-903(3) (Repl. 1977), the identical predecessor to § 5-4-403(c)(l), a trial court lacked the authority to impose simultaneously a consecutive misdemeanor theft-by-receiving sentence upon a felony failure-to-appear sentence. Nothing in the Howard decision, however, affects the authority of a trial court to require a defendant to serve an entire misdemeanor sentence when he or she is already serving a sentence for a prior, unrelated felony.

In the present case, Ricks’s suspended sentence had already been revoked when he was sentenced on the misdemeanor theft-by-receiving charge. There is, therefore, nothing inconsistent with the intent of Ark. Code Ann. § 5-4-403 in the trial court’s decision to order Ricks to be remanded to the custody of the White County authorities to serve the rest of his misdemeanor sentence upon the completion of his felony term at the Department of Correction.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    UNION PACIFIC RAILROAD COMPANY and C.T. Frederking v. STATE of Arkansas EX REL. FAULKNER COUNTY, Arkansas and City of Mayflower, Arkansas
    93-838
    873 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994
    [Rehearing denied May 23, 1994.]

      Friday, Eldredge & Clark, by: Herschel H. Friday, Elizabeth J. Robben, and M. Gayle Corley, for appellant.

      Wright, Lindsey & Jennings, by: Gregory T Jones', and H.G. Foster, Prosecutor; and Larry E. Graddy, Special Prosecuting Attorney.

      Hays, J., not participating.

   Robert H. Dudley, Justice.

The City of Mayflower filed this suit in chancery court against Union Pacific Railroad Company and one of its employees, C. T. Frederking. The complaint asked the chancery court to issue an order directing the railroad to construct a crossing so that Scenic Hill Road could be connected to Highway 365, asked that the railroad be enjoined from obstructing the road, and asked for a penalty in the amount of $2,000, plus $5.00 per day, for every day the railroad fails to construct the crossing. The railroad answered and also filed a counterclaim asking damages for inverse condemnation. The railroad filed a motion to dismiss because the chancery court did not have subject matter jurisdiction. The trial court denied the motion to dismiss, heard the case, dismissed the action against the railroad employee, ordered the railroad to construct the crossing, dismissed the complaint for inverse condemnation, and assessed a penalty of $2,000, plus $5.00 per day, from the date the complaint was filed until the railroad completes the crossing. The railroad appeals and the City cross-appeals. The railroad contends that, by ruling that it must pay both a fine and construct a crossing, and by refusing to require damages for condemnation of this roadway, the Chancellor erred in his interpretation of section 23-12-305 of the Arkansas Code Annotated of 1987. The City cross-appeals and contends that the Chancellor did not assess a sufficient penalty and should have awarded attorney’s fees. We reverse because the chancery court was wholly without subject matter jurisdiction.

Article 7, section 11 of the Constitution of Arkansas provides: “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” Id. This provision means that, unless a cause of action is confided by the Constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. State v. Deavers, 34 Ark. 188 (1879). “All unassigned jurisdiction under the Constitution is vested in the circuit court. . . .” Patterson v. Adcock, 157 Ark. 186, 193, 248 S.W. 904, 906-07 (1923).

Subject matter jurisdiction is determined from the pleadings. McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). The complaint in this case states that the railroad “is the owner of a railroad line that passes through the City of Mayflower.” The answer and counterclaim admit the existence of the railroad’s property, and the counterclaim asks the chancery court to award “between one and two million dollars . . . based on the value of the main track which is condemned and the cost to replace the condemned side track.” The City answered the counterclaim and denied “that the cost of locating a suitable tract of land and constructing a replacement facility is estimated at between one and two million dollars.” The quoted pleadings state that the City asks for an order authorizing it to open a street across the railroad’s right of way. There is no allegation that the City owns an easement, or presently has any right, to cross the railroad’s right of way. Before the City has the right to require the railroad to construct the crossing, it must condemn the right of way for the street to cross the railroad. St. Louis & San Francisco R.R. Co. v. Fayetteville, 75 Ark. 534, 87 S.W. 1174 (1905). It can acquire that right by agreement with the railroad or by filing a condemnation suit in circuit court. Id. at 539-40, 87 S.W. at 1175. The circuit court has subject matter jurisdiction of condemnation suits unless equitable defenses are raised. Arkansas Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986); Ark. Code Ann. § 18-15-303 (1987). No equitable defenses were raised by the railroad. Subject matter jurisdiction of the railroad’s counterclaim for inverse condemnation is also in circuit court. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). In sum, the quoted pleadings do not provide any basis for subject matter jurisdiction in chancery court.

In addition, the City’s complaint alleges that the chancery court “has subject matter jurisdiction pursuant to Ark. Code Ann. § 23-12-305 (1987).” In oral argument before this court, one of the City’s attorneys was asked about the basis of chancery court jurisdiction, and he responded that jurisdiction was conferred on the chancery court by the cited statute. There is no basis for this assertion. The statute, which was repealed in 1993, makes no mention of subject matter jurisdiction. See Ark. Code Ann. § 23-12-305 (1987). There have been many cases involving this statute, but they were all tried in circuit court. See, e.g., Missouri Pac. R.R. v. Howell, 198 Ark. 956, 132 S.W.2d 176 (1939); Missouri Pac. R.R. v. Meyer, 186 Ark. 810, 56 S.W.2d 169 (1933); St. Louis-San Francisco Ry. v. State, 182 Ark. 409, 31 S.W.2d 739 (1930); Kansas City S. Ry. v. City of Mena, 123 Ark. 323, 185 S.W. 290 (1916); St. Louis Southwest Ry. v. Royall, 75 Ark. 530, 88 S.W. 555 (1905). No case holds that the statute gives subject matter jurisdiction to the chancery court.

The statute provides that, when a city constructs a street across a railroad, the railroad must maintain the crossing “at no greater elevation or depression than one (1) perpendicular foot for every five (5) feet of horizontal distance,” and, when the railroad refuses to so maintain the crossing, the city street overseer is authorized to give notice to the railroad that it is not properly maintaining the crossing. See Ark. Code Ann. § 23-12-305(a) and (b) (1987). A copy of the notice is to be filed in the county clerk’s office. Id. § 23-12-305(d)(l). If the railroad then refuses to maintain the crossing in conformity with the statute, the county clerk “shall” give the notice to the prosecuting attorney and he “shall institute suit against the railroad company,” and the railroad company “shall forfeit and pay . . . not less than one hundred dollars ($100) nor more than two thousand dollars ($2000), and five dollars ($5.00) per day for every day such refusal or neglect shall continue. . . .” Id. § 23-12-305(d).

The original version of the statute was enacted in 1887. It provided that the notice should be filed in the office of the county clerk because, at that time, all cases involving public roads were heard in county court. Appeals from county court are to circuit court, and not to chancery court. In Kansas City Southern Railway Co. v. Sevier County, 111 Ark. 900, 286 S.W. 1035 (1926), a case involving the same statute, we outlined the procedure in that case as follows: “The suit was first tried in the county court, then on appeal in the circuit court, where it was adjudged upon the testimony and law that the highway should be opened across appellant’s right of way at a point where its land had been acquired exclusively for railroad yards.” Id. at 901, 287 S.W. at 1036. At the time the case at bar was filed, the statute still provided that the notice must be given to the county clerk. The complaint alleges that notice was given by the City to the county clerk. This notice provision in the statute strongly implies that the General Assembly contemplated the remedy being at law, and not in chancery court.

In St. Louis Southwestern Railway Co. v. Royall, 75 Ark. 530, 88 S.W. 555 (1905), we held that the statute does not contemplate compensating the railroad either for constructing the crossing or keeping it in repair, but it does contemplate compensating the railroad for appropriating a part of its right of way. The opinion provides:

The public does not seek to deprive the railroad of its right of way. It only seeks to condemn the mere right to cross, which would leave the company free still to use its right of way and track as it had used it before. A right affecting the use of its property by the company to so slight an extent as this country crossing would affect it would not call for any great amount of damages, but whether large or small the company has a right to be compensated to that extent.

Id. at 533, 88 S.W. at 556.

We then reversed the case to the county court for a determination of the amount of damages the railroad suffered because of its loss of part of its right of way. We said the determination of damages for loss of part of the right of way was a fact question. Appeal from the county court’s determination of damages would be to circuit court. Again, there was no suggestion of subject matter jurisdiction in chancery court.

In addition, we have held that violation of the statute by the railroad can be evidence of negligence in a tort action. In Missouri Pacific Railroad Co. v. Howell, 198 Ark. 956, 132 S.W.2d 176 (1939), we said the statute makes it the duty of every railroad company to properly construct and maintain crossings over public roads so that they will be safe for motorists crossing the railroad, and whether the railroad so maintained the crossing is a fact question for a jury to determine in a tort suit by a motorist who became stuck on a crossing. Again, the remedy was at law.

The statute, in addition to tort liability, provides for a penalty against the railroad if it fails to maintain the crossing as specified. Penal statutes will neither give nor oust jurisdiction in chancery. Hickinbotham v. Corder, 227 Ark. 713, 301 S.W.2d 30 (1957). Chancery court may invoke jurisdiction where the enforcement of a penal statute does not afford adequate protection against injury to property. Id. at 717, 301 S.W.2d at 33. However, here no pleadings allege facts sufficient to show that the remedy at law is inadequate. In addition, we have said it is a general rule that courts of equity will not aid in the enforcement of penalties when the case originates in chancery court. Sigmon Forest Prods, v. Scroggins, 250 Ark. 385, 465 S.W.2d 673 (1971).

The City asked for an injunction to prohibit the railroad from allowing it to open the road, but merely asking for an injunction will not confer subject matter jurisdiction when, under the pleadings, the chancery court does not otherwise have subject matter jurisdiction. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). It is not enough just to name an equity theory cognizable in chancery court and then state facts which would not support the equity theory, but which might support a claim at law. See Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992).

The railroad moved to dismiss for lack of subject matter jurisdiction, but only argued that the chancery court lacked subject matter jurisdiction because the notice was not timely filed with the county clerk. The chancellor correctly denied the motion on that ground. The railroad did not object on the ground that subject matter jurisdiction was wholly lacking. Even so, when subject matter jurisdiction is wholly lacking, it cannot be induced simply because there was no valid objection. J. W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). In such cases, we have a duty to raise the issue on our own. Arkansas Sav. & Loan Ass’n Bd. v. Corning Sav. & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972). The City sought two things: first, it sought a railroad crossing which would require the taking of some part of the railroad’s property; second, it sought to have the railroad penalized for refusing to allow it to cross the railroad’s property. No matter what the two types of action are labeled, the remedy at law in both actions is fully adequate, and the chancery court is wholly without subject matter jurisdiction in both actions. We have a duty to raise the issue. We do so and, accordingly, reverse.

Reversed and remanded on both direct and cross-appeal.

Hays, J., not participating.


text:
    Gary WALKER v. Jenoddin “J.K.” KAZI
    93-1084
    875 S.W.2d 47
    Supreme Court of Arkansas
    Opinion delivered April 18, 1994

      David Hodges, for appellant.

      B. Richard Allen, for appellee.
   Robert H. Dudley, Justice.

Because of traffic, plaintiff Jenoddin Kazi stopped his pickup truck on State Highway 14. His truck was hit from behind by a second car. A third vehicle, another pickup track, struck the second car from behind and pushed it into plaintiff’s pickup truck. Plaintiff alleges he suffered injury in the accident. The police report shows that the third vehicle was driven by Gary Walker, Route 2, Weiner, Arkansas 72479. Plaintiff filed suit and caused summons to be served on Gary Walker, Route 2, Weiner, Arkansas 72479. Gary L. Walker of Route 2, Weiner was served. Gary L. Walker filed an answer denying that he was the driver of the third vehicle, and averred that his son, Gary D. Walker, also of Route 2, Weiner, was the driver of the vehicle at the time of the accident.

Gary L. Walker then filed a motion for summary judgment. Plaintiff responded with a motion asking that he be allowed to amend his complaint to name Gary D. Walker as the defendant and that the amendment relate back to the filing of the complaint. The trial court granted Gary L. Walker’s motion for summary judgment. At the same time, the trial court granted plaintiff’s motion to amend his complaint to name Gary D. Walker as the defendant and allowed the amendment to relate back to the date of filing the complaint. The notice of appeal and appellant’s brief are both in the name of “Gary Walker” only. We dismiss the appeal.

The trial court granted Gary L. Walker’s motion for summary judgment. If Gary L. Walker is the appellant, we dismiss the appeal because he was the prevailing party, and a prevailing party cannot appeal. Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). Further, Gary L. Walker has no standing to appeal for Gary D. Walker. See Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992).

If Gary D. Walker is the appellant, the order allowing the amendment to relate back to the date of filing is not a final order and is not an appealable order. Ark. R. App. P. 2. This is not an attempt to appeal under ARCP Rule 54(b). The issue of a final order is a jurisdictional issue which the appellate court has the duty to determine. In Re Subpoena of Badami, 309 Ark. 511, 831 S.W.2d 905 (1992). We raise the issue, and dismiss the appeal regardless of which Gary Walker is attempting to appeal.

Appeal dismissed.