text:
    James “J.F.” VALLEY v. The Honorable David BOGARD, Judge, et al.

    00-539
    26 S.W.3d 584
    Supreme Court of Arkansas
    Opinion delivered September 22, 2000

      Wilson & Valley, by: E. Dion Wilson, for petitioner.

      Mark Pryor, Att’y Gen., by: Kelly Terry, Ass’t Att’y Gen., for respondent David Bogard.

      Mark Pryor, Att’y Gen., by: Warren Readnour, Ass’t Att’y Gen., for respondents Sharon Priest and State Board of Election Commissioners.
   Per Curiam.

On May 4, 2000, the Pulaski County Circuit Court, Respondent Honorable Judge David Bogard presiding, ordered that Petitioner James “J.F.” Valley shall not be certified as a candidate for the position of State Representative, District 99, in the Democrat primary election that was held on May 23, 2000. Judge Bogard also ordered that if the ballots for the election had already been printed, any votes cast for Valley shall not be counted.

Prior to the primary election, Valley requested this court to expedite the appeal of Judge Bogard’s order. This court denied that request, due to Valley’s failure to make financial arrangements with the court reporter to secure a record in this matter. See Valley v. Bogard, 341 Ark. 305, 20 S.W.3d 272 (2000) (per curiam), and Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000) (per curiam). Valley again requests this court to expedite the appeal, and he asserts that financial arrangements have now been made to obtain the record on appeal. In his motion, Valley urges that the ballots in this matter are due to be printed shordy and that it is thus necessary to expedite this matter. Valley also seeks a stay of the contempt proceedings in the Pulaski County Circuit Court set for September 22, 2000.

We deny a stay of the contempt proceedings, but we grant the motion to expedite this matter. Accordingly, we issue a writ of certiorari to the court reporter, directing that the transcript of this matter be completed and submitted to this court on or before September 28, 2000. We further order that all the parties in this matter submit briefs to this court on or before October 3, 2000. No reply briefs are to be filed.

It is so ordered.

GLAZE, J., concurs; see Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    William L. “Bill” WALKER, R.C. “Bill” Lewellen, Jean Edwards, John Lewellen, Tracy Steele, John Eason, Robert White, Lindbergh Thomas, Michael Booker, Wilma Walker, Henry Wilkins IV, Joe Harris, Steve Jones, Arnell Willis, Calvin Johnson, Individually and as Members of the Arkansas Legislative Black Caucus v. Sharon PRIEST, in her Official Capacity as Secretary of State of the State of Arkansas
    00-1037
    26 S.W.3d 785
    Supreme Court of Arkansas
    Opinion delivered September 22, 2000

      Rickey Hicks, R.C. “Bill" Lewellen, Herschel W Cleveland, and Michael D. Booker, for petitioners.
    No response.

      Williams & Anderson, LLP, by: W Jackson Williams, Peter G. Kumpe & Jess Askew, III, for intervenor Chart.
   Per Curiam.

On September 8, 2000, an original action was filed in this court pursuant to Amendment 7 of the Arkansas Constitution. The complaint seeks an order from this court enjoining the Respondent from placing on the November 7, 2000 General Election ballot a proposed initiated act entitled, “The Tobacco Settlement Proceeds Act.” On September 19, 2000, James Lane filed a petition to intervene alleging that the petitioners in this original action had not obtained service of process upon respondent and had not sought an expedited hearing. On September 20, 2000, the petitioners filed an amended complaint and a motion for an expedited scheduling order and hearing. This same date, Arkansas Children’s Hospital, Arkansas Hospital Association, Governor Mike Huckabee, University of Arkansas, Arkansas State University, American Cancer Society, American Heart Association, Arkansas for Drug Free Youth, Hispanic Health Program, Campaign for Tobacco Free Kids and National Black Leadership Initiative on Cancer, individually and as members of the Coalition for a Healthy Arkansas Today (“CHART”), filed a motion to intervene alleging that CHART has been the primary proponent of the proposed act. This court granted the intervention by Mr. Lane on September 21, 2000. According to a return on service of process that was filed on September 21, 2000, the respondent has been served with copies of the complaint and amended complaint.

The motion to intervene by CHART and the motion for an expedited scheduling order and hearing are hereby granted. The schedule will be as follows: Answers will be filed by September 29, 2000. Simultaneous briefs from all parties, including the intervenors, will be filed by October 6, 2000. Simultaneous reply briefs from all parties, including the intervenors, will be filed by October 10, 2000. Oral argument will be held October 12, 2000, at 9:00 a.m.


author: Per Curiam. Tom Glaze, Justice.

text:
    Arnell “Buck” WILLIS and Phillips County Board of Election Commissioners v. CIRCUIT COURT of PHILLIPS COUNTY, Arkansas
    00-1033
    27 S.W.3d 372
    Supreme Court of Arkansas
    Opinion delivered September 22, 2000

      Kent J. Rubens and L. Ashley Higgins, for petitioners.

      Mark Pryor, Att’y Gen., by: Colette Honorable, Ass’t Att’y Gen., for respondent Circuit Court of Phillips County, Arkansas.

      Wilson & Valley, by: J.F. Valley, for respondents Eddie L. O’Neal and J.F. Valley.
   Per Curiam.

Petitioners Arnell “Buck” Willis and the Phillips County Board of Election .Commissioners have filed, alternatively, petitions for writ of certiorari, writ of prohibition, or writ of mandamus, asking this court to prevent the Phillips County Circuit Court from hearing a petition for declaratory relief brought by Eddie O’Neal and James “J.E” Valley. Petitioners assert that the issue now before the Phillips County Circuit Court is barred by the doctrine of res judicata. We granted a temporary stay of the proceedings pending in the circuit court, and ordered both the Petitioners and Respondents to file all necessary pleadings and responses and to appear before this court, so that we could decide whether the stay should be continued. See Willis v. Circuit Court of Phillips County, 342 Ark. 65, 27 S.W.3d 346 (2000) (per curiam).

In order to understand the nature of the relief sought, some background information is necessary. Valley and Willis both sought the Democratic nomination for a seat in the Arkansas Elouse of Representatives from District 99. Prior to the May 23 primary, Willis filed suit in the Pulaski County Circuit Court challenging Valley’s eligibility to run for that seat. Willis also filed a petition for a writ of mandamus and declaratory judgment seeking to have Valley’s name removed from the ballot. That suit properly named the Arkansas State Board of Election Commissioners, the Secretary of State, and the Arkansas Democratic State Committee, among others, as defendants. Willis claimed that Valley had not properly resided in District 99 for the required one-year time period and thus was ineligible to run for that seat. Following a hearing on the issue of Valley’s eligibility, the Pulaski County Circuit Court agreed that Valley had not resided in the district as required, and entered an order on May 4, that Valley’s name be removed from the ballot. The trial court further noted that in the event the ballots had already been printed, the proper relief was simply not to count any ballots cast for Valley.

On June 15, 2000, Valley, along with Eddie O’Neal, a registered voter in Phillips County, filed a petition in the Phillips County Circuit Court asking the court for a writ of mandamus and for declaratory judgment. Named as defendants in this suit are Willis and the County Board of Election Commissioners for Arkansas, Desha, Monroe, and Phillips Counties. Specifically, Valley claimed that he had received a majority of the votes cast in the May primary, and that such votes should be counted and Valley declared the winner. Valley argued in the alternative that even if he is not allowed to be on the ballot, Willis should not be certified as the Democratic nominee because he failed to receive a majority of the votes in the primary. Willis and the other defendants responded that the Phillips County Circuit Court lacked authority to consider Valley’s petition because the issue of whether Valley was an eligible candidate had already been decided. Moreover, in his answer, Willis asserted the affirmative defenses of failure to join indispensable parties and lack of venue.

Because a petition for a writ of prohibition is an original action in this court, we may consider such issues as whether all the necessary parties are joined in this action and whether venue is proper in the Phillips County Circuit Court. Arkansas Code Annotated § 7-7-401 (a) (Repl. 2000) sets forth the procedure and the parties involved in certifying nominations. Section 7-7-401 provides:

(a) The county board of election commissioners shall certify the nomination of all county, township, and municipal offices to the county committee of the political party, state committee of the political party, and county clerk. It shall further certify the vote of all candidates for United States, state, and district office to the state committee and the Secretary of State.
(b) The Secretary of State shall receive the returns from the county board of election commissioners and canvass and certify the result thereof as provided by law. The boards or their officers shall, when ordered by a circuit court as provided by law, annul the certifications made and make certifications in accordance with the judgment of the circuit court.

Here, in the Phillips County suit, Valley and O’Neal are asking the trial court to declare Valley the winner of the May 23 primary, thus making him the Democratic Party’s nominee in the general election. Valley and O’Neal have failed to include the Secretary of State or the state Democratic Committee in the present action. The relief sought by O’Neal and Valley cannot be afforded without the inclusion of these parties. Therefore, the absence of these indispensable parties renders this action for mandamus and declaratory relief nonjusticiable. See Ark. Code Ann. § 16-111-106(a) (1987); see also Yamauchi v. Sovran Bank/Central South, 309 Ark. 532, 832 S.W.2d 241 (1992). Finally, because the Secretary of State is one of the indispensable parties to this action, venue is not proper in Phillips County. Arkansas Code Annotated § 16-60-103(3) (1987) states that all actions against state officers acting in their official capacity must be brought in Pulaski County.

We now turn to the issue of what type of relief is appropriate under these circumstances. We recently set forth the requirements for a writ of prohibition:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will he, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

Pike v. Benton Circuit Court, 340 Ark. 311, 314, 10 S.W.3d 447, 448 (2000) (quoting State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999)). Here, the Phillips County Circuit Court is without jurisdiction to hear O’Neal’s and Valley’s claims because not all of the indispensable parties have been joined in the action and because the proper venue is in Pulaski County. Under the particular circumstances of this case, a writ of prohibition is the appropriate remedy.

Writ of prohibition granted.

Glaze, J., concurs.

Tom Glaze, Justice.

I agree that the Phillips County Circuit Court has no venue or jurisdiction in this case. The per curiam sets out the relevant facts that led to this special proceeding. In short, Arnell Willis and James Valley were candidates for the Democratic nomination for House Representative from District 99, and, prior to the May 23 primary election, Willis filed suit in the Pulaski County Circuit Court questioning Valley’s eligibility to be a candidate. In accordance with the procedure set out in State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989), Willis filed a petition for writ of mandamus and declaratory judgment seeking to have Valley’s name removed from the ballot, as provided under Ark. Code Ann. § 7-5-207(b) (Repl. 2000). See also Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Jenkins v. Bogard, 334 Ark. 645, 980 S.W.2d 548 (1998); Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995). In addition to Willis, Valley and the County Boards of Election Commissioners from Arkansas, Desha, Monroe, and Phillips Counties being made parties in the Pulaski County action, the Secretary of State, state Democratic Party Commissioner, and State Board of Election Commissioners were jointed as parties because of their election duties related to certifying party nominees. Because this action involved state officials, venue was properly established in Pulaski County in accordance with Ark. Code Ann. § 16-60-103 (1987).

The Pulaski County Circuit Court held a hearing on May 3, 2000, and determined that Valley was ineligible to be a candidate for House member from District 99 because he had not resided in the district for the full year proceeding the May 23 election, as is required by law. The Pulaski County Circuit Court ruled Válley should not be certified as a candidate, and, if the ballots had already been printed, any votes cast for him should not be counted. The court’s order was entered on May 4, 2000. Valley filed his notice of appeal on May 9, 2000, and it remains on the supreme court’s docket as Supreme Court Case No. 539.

In his appeal from the Pulaski County decision, Valley filed a petition with this court for a writ of certiorari on May 9; the attorney general, representing Secretary of State Sharon Priest and the State Board of Election Commissioners, responded on May 10. We promptly issued a writ on May 11, in an effort to expedite an appeal. ON May 12, the Pulaski County Circuit Court reporter responded by affidavit, notifying this court that no transcript had been ordered and no payment had been made for the preparation of any record. Accordingly, we withdrew our May 11 writ. Valley requested that we reconsider our May 12 directive, but we denied it. On May 12, Valley indicated he had filed an amended notice of appeal, correcting his earlier omissions, but the court reporter responded that she had received an amended notice of appeal, but no payment, as Valley had represented to this court. On May 19, Valley again asked for reconsideration for an expedited appeal, but, because this court was not informed if or when a record could be filed, this court denied Valley’s request. In the May 19 petition, Valley agreed that he had made oversights in his attempt to expedite and accepted responsibility for any and all nocompliance with the rules of this court. Nonetheless, Valley took no further action in the Pulaski County Circuit Court case until September 20, which I will discuss later in this opinion.

Meanwhile, Valley decided to file a petition for writ of mandamus and declaratory judgment in Phillips County Circuit Court on June 15, seeking as relief the ability to be considered an eligible candidate and to have his votes counted. In that action, Valley named everyone already named in the Pulaski County case except the state officials. Valley’s action in the Phillips County suit is in definite conflict with the Pulaski County Circuit Court’s order, in that it seeks favorable relief from the Phillips County Circuit Court determining Valley the winner of the May 23 Democratic primary election. Valley relies on certain allegations in his Phillips County complaint in asking for relief under both federal and state civil rights acts.

As pointed out in the per curiam, the Secretary of State receives the election returns from the respective county boards of election commissioners, Ark. Code Ann. § 7-7-401 (Repl. 2000), and all lists of nominees of candidates from district house of representatives are filed with the Secretary of State. Ark. Code Ann. § 7-7-402 (Repl. 2000); See also Ark. Code Ann. §§ 7-5-704-705 (Repl. 2000). Clearly, the Secretary of State must be made an indispensable party under Ark. R. Civ. P. 19(a) before complete relief can be accorded the parties in these proceedings. That being so, venue was fixed in Pulaski County. This court has historically issued the writ of prohibition when venue is improper as to a party. See Boatmen’s Nat’l Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997); Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995).

In conclusion, I reiterate that Valley’s last action taken in his appeal of the Pulaski County Circuit Court May 4 order was his May 19, 2000, petition for reconsideration, wherein, among other things, he acknowledged noncompliance with the court’s appellate rules, and fully accepted responsibility for any and all noncompliance with the rules of this court. Recently, on September 20, 2000, Valley has filed a motion for stay of contempt and for expedited appeal, wherein he now complains of this court’s denials of his requests to expedite the appeal and charging such denials as being contrary tot he weight of the court’s own authority and contrary to its rules. Such comments are not only contrary to his earlier admissions in his May 19 motion, but they also miss the mark as to what has occurred. Obviously, it is impossible for this court to set briefing schedules if the court is unaware if or when a transcript will be lodged. There are procedures whereby partial records can be lodged and writs of certiorari can be issued in order to expedite an appeal so briefing schedules can be established. That simply was not done in the appeal of the Pulaski County case, and it is Valley’s failure to proceed correctly that has caused unnecessary delay.

       I would note that all issues concerning Valley’s eligibility could have been addressed in the Pulaski County case since his defense and claims arise out of the same transaction or occurrence that is the subject matter of Willis’s opposing claim. See Ark. R. Civ P. 13(a).

       The contempt matter is not relevant here, but I note that, because Valley now has correctly arranged for the record in the Pulaski County Circuit Court appeal, the court has granted Valley’s motion to expedite on this date, September 22, 2000.


author: W.h. "Dub" Arnold, Chief Justice.

text:
    ARKANSAS COUNTY v. DESHA COUNTY, Arkansas Electric Cooperative Corporation, and Arkansas Public Service Commission
    99-1332
    27 S.W.3d 379
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000
    [Petition for rehearing denied November 2, 2000.  ]

      Pike & Bliss, P.A., by: . George E. Pike, Jr. and Deborah Pike Bliss, for appellant.

      Rose Law Firm, by: Garland J. Garrett and Herbert C. Rule, III, for appellee Desha County.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Mark N. Halbert, for appellee Arkansas Electric Cooperative Corporation.

      Lee McCulloch, for appellee Arkansas Public Service Commission.

       Smith, J., not participating.

   W.h. "Dub" Arnold, Chief Justice.

Appellant Arkansas W. County brings the instant appeal challenging a decision of the Arkansas County Chancery Court granting Desha County’s and Arkansas Electric Cooperative Corporation’s motion to dismiss. At issue is whether the Arkansas Public Service Commission has jurisdiction to resolve a county boundary dispute arising from a change in the course of the Arkansas River. The trial court found that the Commission has jurisdiction to determine both the value and location of public utility property, including a contested boundary line between Arkansas County and Desha County. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. R. l-2(a)(l) (2000) because appellant contends that such a delegation of jurisdiction violates the separation of powers provisions of the Arkansas Constitution. Under the instant facts and applicable statutes, we conclude that the legislature did not delegate such authority to the Commission. Accordingly, we reverse and remand.

The legislature granted the Arkansas Public Service Commission full power and authority to assess, value, equalize, and apportion public utility and public carrier property for taxation. Ark. Code Ann. § 26-24-102 (Supp. 1999). To assist with the administration of the Commission’s duty, the legislature created the Tax Division within the Commission and granted it the responsibility of performing all functions regarding assessment and equalization of public utility property. Ark. Code Ann. § 26-24-101 (Repl. 1997). For example, the Tax Division annually assesses all property used or held for use in the operation of electric power companies, like appellee AECC. See Ark. Code Ann. § 26-26-1602(b)(l) (Repl. 1997). AECC is required to submit, on or before March 1 of each year, a statement to the Tax Division showing all AECC property that is subject to ad valorem assessment and taxation in Arkansas. See Ark. Code Ann. § 26-26-1602(b)(2). The filing must include:

A detailed statement of all real and personal property owned or controlled by the company and situated in Arkansas on January 1 next preceding, giving the description, location, and value thereof,

(Emphasis added.) Ark. Code Ann. § 26-26-1603 (a) (8) (Repl. 1997).

After receiving the utility’s annual statement, the Tax Division meets for the purpose of assessing the property. Prior to assessment, any company or individual has the right to appear and be heard by the Tax Division concerning the valuation. Ark. Code Ann. §§ 26-26-1605(a)(l) -1609 (Repl. 1997). When the assessment is completed, the Division notifies the property owner in writing of the property’s total assessed amount. Ark. Code Ann. § 26-26-1610(a) (Repl. 1997). The Tax Division is then authorized to assign or apportion the value of the assessed property to the appropriate taxing district according to the property’s location. Ark. Code Ann. § 26-26-1611(3)(A) (Repl. 1997).

In the instant case, AECC complied with Ark. Code Ann. sections 26-26-1602(b) (2) and 26-26-1603 (a) (8), by filing its annual statement with the Tax Division and reporting its HS No. 2 Hydro Project, Tract Nos. 203, 210, 230, and 235 (the “property”), for assessment. Consistent with AECC’s filing, the Tax Division certified the property to appellee Desha County, where it was listed on the county’s real estate assessment records. AECC continued to pay taxes on the property to Desha County until the instant litigation arose.

On July 12, 1999, Arkansas County filed a complaint in the Arkansas County Chancery Court against Desha County and AECC, alleging that the property was not located in Desha County but in Arkansas County. Arkansas County sought a declaration that the property was located in Arkansas County and an injunction preventing Desha County from collecting further taxes on the disputed property. Ultimately, Arkansas County obtained an ex parte temporary restraining order prohibiting AECC from paying the real and personal property taxes due Desha County. In an amended complaint filed on September 21, 1999, Arkansas County added the Public Service Commission as a party defendant. At trial, appellant argued that although the Commission has authority to assess public utility property where there is no dispute as to the property’s location, where a boundary dispute exists, the matter becomes exclusively a judicial question.

In response, Desha County and AECC argued that the complaint should be dismissed because Arkansas County failed to exhaust its administrative remedies before the Commission. Specifically, appellees claimed that the Commission had the authority to exercise complete supervision and control over the valuation, assessment, and equalization of public utility property, including the authority to resolve incidental matters such as a county boundary dispute. The chancery court agreed. Finding that the Commission had primary and exclusive jurisdiction to determine the value and location of the subject property and concluding that the plaintiff failed to exhaust that administrative remedy, the chancery court dismissed the complaint on September 30, 1999.

In the instant appeal, both appellant and appellee Public Service Commission argue that the chancery court erred by finding that the Commission has the authority to determine the disputed location of the Arkansas River as it defines the boundary between Arkansas and Desha Counties. Appellant claims that such a delegation of judicial power to an administrative agency violates Ark. Const, art. 4, §§ 1, 2. The Commission maintains that public utilities and carriers bear the burden of establishing and reporting the location of their property to the Tax Division, and the Commission’s exclusive jurisdiction over utility matters and assessments does not include resolving boundary and waterway disputes. Rather, the proper forum for addressing such disputes lies in the chancery and circuit courts. We agree.

I. Motion to strike Commission’s brief

Before we address the merits of the appeal, we consider appellee Desha County’s pending motion to strike the Commission’s brief on the grounds that (1) the Commission is not a party to the action, (2) its brief, styled as an appellee’s brief, actually supports the appellant’s position, and (3) the Commission failed to file a notice of appeal or cross-appeal. We find merit in appellee’s arguments, and we strike the Commission’s brief as untimely.

In a remarkably similar case, Boyle v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242, we struck a brief where the appellee filed a timely notice of cross-appeal but then filed a brief supporting the appellant’s position rather than the appellee’s. We acknowledged that:

In reading Wagner’s brief on appeal, however, it is clear that far from assuming the posture of appellee or contesting any decision in favor of his brother, appellant Boyle, he associates himself with the arguments made by the appellant Boyle. He, thus, occupies the status of an appellant irrespective of how he styled himself in either his notice of appeal or on the cover of his brief. He failed to file his brief in timely fashion as an appellant but filed his brief on the same date that A.W.A.’s brief as the appellee was recorded. A.WA., as a consequence, had no opportunity to respond to Wagner’s arguments. This was inherently unfair to A.WA., especially when Wagner was embracing the same positions as the appellant. We conclude that Wagner’s brief was not timely filed, and we strike it.

Boyle, 319 Ark. at 393, 892 S.W.2d at 244. Like Wagner, the Commission styled itself an appellee and filed its brief on January 6, 2000, the same day that Desha County hied its responsive brief. Similarly, like the appellee in Boyle, Desha County had no opportunity to respond to the Commission’s arguments, which mirrored the appellant’s.

We also noted in Boyle that when an appellee seeks something more than was received in the trial court, he must hie a notice of cross-appeal within ten days of the hrst notice of appeal or within thirty days from the date of the challenged order. Boyle, 319 Ark. at 392-93, 892 S.W.2d at 244; see also Flemings v. Littles, 324 Ark. 112, 918 S.W.2d 718 (1996) (treating document styled “notice of appeal” as notice of cross-appeal). Although Wagner timely hied a notice of cross-appeal, we nevertheless struck his brief as untimely because he was not a true cross-appellant. See Boyle, 319 Ark. at 391, 892 S.W.2d at 243. Wagner aligned himself with the appellant’s position but waited until the appellees’ briefs were due to hie his own. Here, the Commission failed to hie either a notice of appeal or cross-appeal and yet filed a brief advancing the appellant’s arguments too late to give the remaining appellees an opportunity to respond. In light of Boyle, we hold that the Commission’s brief is untimely, and we strike it. Consequently, we also strike the Commission’s oral argument.

II. Jurisdiction

The central issue in this appeal is whether the Public Service Commission has jurisdiction to determine the boundary between Arkansas County and Desha County arising from a change in the how of the Arkansas River through accretion or avulsion. The Commission is a creature of the legislature whose power and authority is limited to that which the legislature confers upon it. Lincoln v. Arkansas Public Serv. Comm’n, 40 Ark. App. 27, 42 S.W.2d 51 (1992), aff’d, 313 Ark. 295, 854 S.W.2d 330 (1993). Accordingly, we must examine the statutes creating the Commission’s authority.

Our basic rule of statutory construction is to give effect to the intent of the legislature. See Rosario v. State, 319 Ark. 764, 769, 894 S.W.2d 888 (1995). We must give effect to that intent by making use of common sense and giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). Where the statutes are unambiguous, we construe them by looking to all laws on the subject, viewing them as a single system, and giving effect to the general purpose of the system. See Citizens to Establish a Reform Party in Arkansas v. Priest, 325 Ark. 257, 265-66, 926 S.W.2d 432 (1996) (citing Hercules, Inc. v. Pleader, 319 Ark. 702, 894 S.W.2d 576 (1995); Pace v. State Use Saline County, 189 Ark. 1104, 76 S.W.2d 294 (1934)).

When read as a whole, the purpose of the statutory provisions governing the Commission is to create an administrative agency vested with authority to valúate, assess, and equalize public utility property, and to apportion taxes to the appropriate taxing districts. Ark. Code Ann. § 26-24-102. Section 26-24-101(1) (A) specifically grants the Tax Division the “responsibility of performing all functions and duties regarding assessment and equalization of properties of public utilities and public carriers.” Considering the plain language of the statutes, we cannot say that the legislature intended to vest the Commission with the responsibility of resolving boundary disputes, nor can we interpret the statute to find that that function is related to the assessment and equalization of the property.

As further evidence of the legislature’s intent, we may also consider subsequent amendments to statutes. Rosario v. State, 319 Ark. 764, 769, 894 S.W.2d 888 1995). Notably, in Ark. Code Ann. section 23-3-119 (1987 & Supp. 1999), which deals with complaints filed in the Commission, the legislature clarified the Commission’s jurisdictional authority in a 1985 amendment to the section. The amendment, codified as subsection (f), acknowledges the Commission’s quasi-judicial jurisdiction to adjudicate public rights and claims in individual cases and to act generally and prospectively in the public’s interest. Ark. Code Ann. § 23-3-119(f) (3). However, in subsection (f)(2), the legislature clarified that the Commission’s jurisdiction to adjudicate public rights “does not and cannot ... extend to disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.” Further, in subsection (d), the legislature expressly stated that the commission did not have authority to order payment of damages or to adjudicate disputes in which the right asserted is “a private right found in the common law of contracts, torts, or property.” Appellees suggest that this statute is inapplicable, but the legislature’s intent is clear.

The chancery court’s interpretation of the governing statutes runs counter to the overall purposes of the Commission. Moreover, no statute authorizes the Commission or the Tax Division to resolve a boundary dispute, and we cannot disregard the legislature’s enactment of its intent in this area. In sum, we cannot say that the legislature intended to delegate to the Commission the jurisdiction to resolve common law property right issues between landowners sharing a river boundary. For these reasons, we hold that the chancery court erred by finding that the Commission was vested with jurisdiction to decide the boundary dispute and the location of AECC’s property. In the absence of an administrative remedy, the chancery court erred by dismissing appellant’s complaint. We reverse and remand for the chancery court to resolve the boundary issue.

We also require that the Commission continue to be a party in the action because we believe it is eminently preferable to have the legal and factual issues thrashed out in chancery court with the full participation of Arkansas County, Desha County, AECC, and the Commission. See Arkansas State Med. Bd. v. Schoen, 338 Ark. 762, 768, 1 S.W.3d 430, 434 (1999). Notably, in its August 2, 1999 motion to dismiss, AJECC agreed that the Commission was a necessary and indispensable party and urged the chancery court to require Arkansas County to join the Commission pursuant to Ark. R. Civ. P. 19(a).

Reversed and remanded.

SMITH, J., not participating.


author: Tom Glaze, Justice.

text:
    Lisa GOFF and Kenneth Goff v. HAROLD IVES TRUCKING CO., Inc.
    99-1420
    27 S.W.3d 387
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      The Mulkey Attorneys Group, P.A., by: Bruce L. Mulkey and Jeremy K. Landon, for appellants.

      Conner & Winters, P.L.L.C., by: John R. Elrod and Vicki Bronson, for appellee.
   Tom Glaze, Justice.

This case presents our court with the following issue of first impression: whether or not Arkansas should recognize intentional first-party spoliation of evidence as an independent tort cause of action.

On December 2, 1997, Lisa Goff was in a head-on collision with a tractor-trailer rig driven by an employee of Harold Ives Trucking Company (hereinafter Ives), and as a result, she suffered severe injuries. On May 18, 1998, Goff and her husband Kenneth filed suit in federal district court. They served their complaint on Ives on the same day, along with a summons and request for ■ production of documents. The request for production of documents sought Ives’ driver’s logs for the entire month of November 1997 and December 1-2, 1997.

Sometime during the course of discovery, the Goffs learned that Ives had either negligently or intentionally lost or destroyed some of its truck driver’s logs, relating to the driver who had been involved in their accident. The Goffs alleged these logs showed the hours of service, or how long the driver had been on the road. Such logs were required by federal law to be kept for a minimum of six months. Because of the missing logs, the Goffs amended their federal complaint to allege a count of spoliation of evidence. Ives subsequently admitted liability for the accident, so at trial, the jury considered and decided the issue of damages only. However, before submitting the damages issue to the jury, the federal trial judge refused to let the Gofis submit a claim for punitive damages based on spoliation, and as a result, they took a voluntary nonsuit on the spoliation count. The jury then returned a verdict in favor of the Goffs, awarding them compensation on their underlying negligence claim.

The Goffs later filed a complaint in Pulaski County Circuit Court on March 30, 1999, based solely on the spoliation count they previously nonsuited in the federal proceeding. The Gofis alleged that they had been deprived of relevant and central information in pursuing the underlying negligence action and that the destruction of the logs interfered with their opportunity to recover damages. Ives responded by fifing a motion to dismiss under Ark. R. Civ. P. 12(b)(6), asserting that the Goffs had failed to state a cause of action on the grounds that Arkansas does not recognize the tort of spoliation of evidence. Ives further urged that, even if the courts were to recognize such a claim, the Goffs could not prevail because they had already won their negligence action. On August 16, 1999, a hearing was held on Ives’ motion to dismiss, and after hearing arguments from both sides, the trial judge dismissed the Goffs’ complaint.

We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the fight most favorable to the plaintiff. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999) (citing Efurd v. Hackler 335 Ark. 267, 983 S.W.2d 386 (1998)). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint. Id.

Spoliation is defined as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.” Black’s Law Dictionary 1401 (6th ed. 1990). Our research reflects that few jurisdictions have acknowledged spoliation as an independent tort. In those few states which have recognized the tort, several courts have likened the harm arising from the destruction of evidence to that suffered by plaintiffs in cases involving intentional interference with prospective economic advantage. This reasoning was first employed in Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. App. 1984), where the California court of appeals acknowledged the new cause of action for the first time. Noting that “for every wrong there is a remedy,” the California court held that a prospective civil action in a products liability case was a valuable probable expectancy to the plaintiff, and as such, the court could and should protect that interest from the kind of interference posed by the destruction of evidence necessary to prove such a claim. Smith, 198 Cal. Rptr. at 837. Several other jurisdictions adopted this approach to the tort. See Bondu v. Gurvich, 473 So. 2d 1307 (Fla. App. 1985); Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Hirsch v. General Motors Corp., 628 A.2d 1108 (N.J. Super. 1993) (New Jersey recognizes intentional spoliation of evidence as a tort, but not negligent spoliation of evidence); Holmes v. Amerex Rent-A-Car, 180 F.3d 294 (D.C. Cir. 1999) (holding that negligent or reckless spoliation of evidence is an independent and actionable tort); Smith v. Howard Johnson Co., 615 N.E.2d 1037 (Ohio 1993) (holding without explanation that a “cause of action exists in tort for interference with or destruction of evidence”); and Coleman v. Eddy Potash, 905 P.2d 185 (N.M. 1995).

These states, however, represent what we have determined to be the minority view We find it instructive that California, the first state to adopt spoliation as an independent tort, has changed course and, more recently, that state’s highest court has held specifically that the tort would no longer be recognized. Cedars-Sinai Medical Center v. Superior Court, 954 P.2d 511 (Cal. 1998). In rejecting the logic of the Smith case, the California Supreme Court noted that while “[n]o one doubts that the intentional destruction of evidence should be condemned, . . . [t]hat alone, however, is not enough to justify creating tort liability for such conduct.” Cedars-Sinai, 954 P.2d at 515.

The California Supreme Court based its decision on a number of public policy concerns, noting primarily the “strong policy favoring use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct and the prohibition against attacking adjudications on the ground that evidence was falsified or destroyed.” Id. at 517. Chief among these nontort remedies is the evidentiary inference, often quoted in its Latin form, “omnia praesumuntur contra spoliatorem,” meaning “all things are presumed against a spoliator.” This inference, embodied in California’s rules of evidence and its standard jury instructions, allows a fact-finder to infer from the destruction of evidence that whatever was contained in that evidence was unfavorable to the party that destroyed it. Id. There is at least one Arkansas federal district court decision which recognized this presumption. Carr v. St. Paul Fire & Marine Ins. Co., 384 F. Supp. 821 (W.D. Ark. 1974).

In addition to this evidentiary inference or presumption, the California Supreme Court noted the “broad range of [discovery] sanctions for conduct that amounts to a misuse of the discovery process.” Cedars-Sinai, 954 P.2d at 517 (internal quotations omitted). In California, these sanctions include “monetary sanctions, contempt sanctions, issue sanctions . . . , evidentiary sanctions . . . , and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” Id. at 517-18. Arkansas has similar sanctions, in the form of Ark. R. Civ. P. 37(b)(2), which provides as follows:

(2) Sanctions By Court In Which Action Is Pending. If a person . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
4= 4= * 4=
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Ark. R. Civ. P. 37(b) (2000).

The California court also discussed the two following nontort remedies for the spoliation of evidence: the fact that lawyers may be subject to disciplinary proceedings for participating in the destruction or suppression or evidence (and thus would take steps to see to it that their clients do not engage in such behavior), and the existence of criminal penalties for spoliation. Again, both of these remedies, as deterrents, are available under our state law. Arkansas’s Rules of Professional Conduct provide that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or to] engage in conduct that is prejudicial to the administration of justice.” Model Rules of Professional Conduct 8.4(c) & (d). In addition, we have a statute which makes it a Class B misdemeanor if a person “alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose or impairing its verity, legibility, or availability in any official proceeding or investigation.” Ark. Code Ann. § 5-53-111 (Repl. 1997).

Besides the existence of the foregoing nontort remedies are several strong policy concerns that weigh against the recognition or adoption of spoliation as a new tort. We are concerned, as was the California Supreme Court, with the speculative nature of damages in a case such as this. The question goes not only to the amount of damages caused by the destruction of evidence, but also to the very existence of injury. The California court discussed this problem in its Cedars-Sinai decision as follows:

In such cases, even if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable to the spoliator, there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim’s favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation.

Cedars-Sinai, 954 P.2d at 518.

We agree with the California court’s analysis. In the present case, the Goffs’ complaint is devoid of any suggestion as to what the missing logs contained. Although the complaint states that the destruction of the logs deprived the Goffs of relevant evidence concerning their negligence action, it does not allege that the logs would have shown that the driver of the truck that struck Mrs. Goff had been on the road for more hours than federal law permits. Therefore, even if the Goffs had been permitted to present their spoliation claim to a jury, there would have been no way for that jury to tell what the logs would have shown and what injury, if any, the Goffs had suffered as a result of the logs’ destruction. We also find it telling that the Goffs won their underlying negligence action in the federal district court. In such a situation, whether any additional damages could have been proven is certainly open to question.

In declining to adopt an independent tort of spoliation, we further note that the recognition of the tort is not, as the Goffs suggest, a “growing trend” in this country. The majority of jurisdictions which have considered it have either expressly rejected the cause of action or have declined to reach the question on the facts presented. Among those states refusing to acknowledge the tort, in addition to California, are Alabama, Arizona, Georgia, Iowa, Kansas, Pennsylvania, and Texas. Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408 (Ala. 1995); LaRaia v. Superior Court, 722 P.2d 286 (Ariz. 1986); Gardner v. Blackstone, 365 S.W.2d 545 (Ga. App. 1988); Meyn v. State, 594 N.W.2d 31 (Iowa 1999) (court did not recognize negligent spoliation); Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177 (Kan. 1987); Elias v. Lancaster, 710 A.2d 65 (Pa. Super. Ct. 1998); Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998). States which have declined to reach the issue because the facts did not warrant the creation of a new tort include Connecticut, Idaho, Illinois, Missouri, New Hampshire, and Virginia. Reilly v. D’Errico, 1994 W.L. 547671 (Conn. Super. Ct. Sept. 21, 1994); Yoakum v. Hartford Fire Ins. Co., 923 P.2d 416 (Idaho 1996); Petrik v. Monarch Printing Corp. 501 N.E.2d 1312 (Ill. App. 1986); Brown v. Hamid, 856 S.W.2d 51 (Mo. 1993) (en banc); Rodriguez v. Webb, 680 A.2d 604 (N.H. 1996); Austin v. Consolidated Coal, 501 S.E.2d 161 (Va. 1998).

We join those jurisdictions that have expressly declined to recognize the tort of intentional spoliation of evidence. As discussed above, we believe that there are sufficient other avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff. Most significant, an aggrieved party can request that a jury be instructed to draw a negative inference against the spoliator. Additionally, and as discussed earlier, the plaintiff can ask for discovery sanctions or seek to have a criminal prosecution initiated against the party who destroyed relevant evidence. In short, we do not find it necessary to create a new tort out of whole cloth in order to provide a party with a remedy. The following language of the Texas Supreme Court succinctly addresses our own position on the subject:

This Court treads cautiously when deciding whether to recognize a new tort. While the law must adjust to meet society’s changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action. We thus decline to recognize evidence spoliation as an independent tort. . . . [The] traditional response to the problem of evidence spoliation properly frames the alleged wrong as an evidentiary concept, not a separate cause of action.

Trevino v. Ortega, 969 S.W.2d 950, 951-52 (emphasis added).

Because we find it unnecessary and unwise to recognize first-party spoliation of evidence as an independent tort in Arkansas, we affirm the decision of the trial court.

       In addition to intentional spoliation, a small number of jurisdictions have discussed the tort of negligent spoliation of evidence.

         This presumption is recognized as a sufficient remedy by a number of states which have refused to acknowledge spoliation of evidence as an independent tort. See, e.g., Beers v. Bayliner Marine Corp., 675 A.2d 829 (Conn. 1996); Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247 (Del. Super. Ct. 1998); Monsanto v. Reed, 950 S.W.2d 811 (Ky. 1997); Kammerer v. Sewerage & Water Bd., 633 So. 2d 1357 (La. App. 1994); Miller v. Montgomery County, 494 A.2d 761 (Md. App. 1985).

       During oral arguments in this case, counsel for the Goffs conceded that he had not sought discovery sanctions against the trucking company.


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

text:
    Mack E. STEPHENS v. STATE of Arkansas
    CR 98-1073
    28 S.W.3d 260
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      Bowden Law Firm, by: David O. Bowden, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Mack Stephens was convicted of possession of a controlled substance (methamphetamine) with intent to deliver and possession of drug paraphernalia; he was sentenced to twenty-three years in prison and fined $10,000. On appeal, he argues that the trial court improperly denied his motion to suppress evidence seized from his person and car after his arrest.

On July 12, 1996, Deputy Lance Freeman of the Van Burén County Sheriff’s Department was visiting with the owners of the Foothills Grocery in Airead. As he was inside the store, he saw a tan Oldsmobile begin to enter the parking lot, but the car then paused for a second and sped away. Deputy Freeman recognized the passenger, Terry Rudder (whom the policeman knew to be involved in drugs), but he did not know the driver. A minute or so later, the car returned to the store, and the driver was alone. Because this struck Deputy Freeman as suspicious, he asked the store owner if he knew who the driver was; the owner responded that it was Mack Stephens.'

Deputy Freeman then called the Sheriff’s Office and asked the dispatcher to QNF (query name file) the name Mack Stephens in the Arkansas Crime Information Computer (ACIC). The search came back showing that there was a 1994 warrant out for a Mack Stephens out of Faulkner County on a hot check charge. The deputy went outside and asked Stephens for his driver’s license, which showed the name Mack Stephens. Freeman told Stephens that there was a warrant out for him, and he placed Stephens under arrest.

Freeman then had Stephens turn out his pockets, as part of a search incident to the arrest. Stephens set out a red zipper pouch that contained a number of small baggies of white powder, a vial with white powder, a glass vial and measuring device with white powder, two straws, two razor blades, a pipe, a small spoon, three filtering screens, and a Royal Crown bag containing $2,229.35 in cash. A search of the car also turned up a Dial-a-Page beeper, a list of names, and a list of telephone numbers.

After being charged with possession with intent to deliver methamphetamine and possession of drug paraphernalia, Stephens moved to suppress the evidence found during this search. He contended that his arrest was “pretextual,” but the trial judge disagreed and ruled that Freeman had reason to believe Mack Stephens had a warrant out for his arrest (although it was later learned that the warrant was for Stephens’s son, whose name was also Mack Stephens), and that there was no evidence of any improper motive, bad faith, or pretext on the officer’s part in approaching and asking for identification or in placing Stephens under arrest based on the outstanding warrant.

A jury found Stephens guilty of the drug charges, and he now appeals, raising the following two points: 1) his arrest was not based upon reasonable suspicion or probable cause, but was instead premised on the fact that he had been seen with Rudder, a person known to have a history of involvement with drugs; and 2) the trial court erred in allowing the list of names and telephone numbers seized from his car to be entered into evidence. We find no merit to either of these contentions and affirm.

Stephens first asserts that Deputy Freeman could not articulate a reasonable suspicion or probable cause to permit him to access the ACIC files, and as such, the information from the ACIC search should have been deemed illegally obtained and therefore suppressed. However, this was not his argument below. Stephens argued to the trial court that the evidence should have been suppressed because the arrest was pretextual. There, he contended that Deputy Freeman only requested the QNF because of a suspicion based on Stephens’s association with Rudder. However, he never suggested or argued below that the officer acted improperly in learning about and acting on the arrest warrant. We have long held that issues must be presented to the trial court in order to preserve them for appeal. Rogers v. State, 66 Ark. 283, 989 S.W.2d 568 (1999) (citing Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998)). We will not address an argument that was not made to the trial court as part of a motion to suppress. Rhoades v. State, 319 Ark. 45, 49-50, 888 S.W.2d 654 (1994).

In addition, Stephens argues that the fruits of the search were inadmissible because Freeman had no information except Stephens’s association with Rudder as a basis for the arrest. He relies on Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), and State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997), for the proposition that an officer must have something more than a bare suspicion of criminal activity before approaching an individual. However, both Stewart and McFadden involved warrantless stops. Stephens’s argument ignores the fact that Deputy Freeman did not approach him until after Freeman learned of the outstanding arrest warrant.

This case is essentially controlled by our rules of criminal procedure — specifically, Ark. R. Crim. P. 4.2 and 4.3. Under Ark. R. Crim. P. 4.2, any law enforcement officer may arrest a person pursuant to a warrant in any county in the state. Rule 4.3 provides that the officer need not have the warrant in his possession at the time of the arrest, but if the officer does not have it, the officer must inform the accused of the fact that the warrant has been issued. Deputy Freeman complied with both of these rules. Again, Stephens emphasizes the fact that Freeman’s suspicions were based only on “guilt by association”; however, even if Deputy Freeman suspected Stephens’s involvement with drugs when he called in the QNF, an “otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity.” Mings v. State, 318 Ark. 201, 210, 884 S.W.2d 596 (1994) (citing Untied States v. Cummins, 920 F.2d 498 (8th Cir. 1990)).

We have held that pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest. Mings, 318 Ark. at 210, 884 S.W.2d at 602 (citing Ray v. State, 304 Ark. 489, 495, 803 S.W.2d 894, 897, cert. denied, 501 U.S. 1222 (1991)). An ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. Id. (citing Hines v. State, 289 Ark. 50, 55, 709 S.W.2d 65, 68 (1986)). The reasoning is that the arrest for the overt violation would have taken place in any event; thus there is no reason to bring the Fourth Amendment and the exclusionary doctrine into play. Id. Here, Deputy Freeman had an outstanding arrest warrant naming “Mack Stephens,” and because he had authority under Ark. R. Crim. P. 2.2. to approach and arrest Stephens, it cannot be said that the arrest was pretextual.

For his second point on appeal, Stephens argues that the list of names and telephone numbers seized pursuant to his arrest were not provided to him in discovery. He contends that this prejudiced his ability to put on his defense (which was that he possessed the large amount of methamphetamine for personal possession and not with the intent to distribute it) because the names on the list were “not unknown to law enforcement,” and the implication was that the list was a “customer list.” Stephens urges that the trial court should have sustained his objection or granted his motion for mistrial when the State introduced these lists.

The list in question was removed from Stephens’s possession and introduced without objection at the hearing on the motion to suppress, which was held five months before trial. At the trial, the list was again admitted, along with the other items seized, without objection. Stephens’s attorney did not object to the introduction of the list in any way until the prosecutor began to ask Deputy Freeman if he knew any of the names on the fist. Although Stephens states in his brief that he made a motion for mistrial and “for instruction,” neither the transcript nor the abstract reflects that such a motion was made.

The law is clear that any objections either to the introduction of evidence or to purported discovery violations must be made at the first opportunity. Hinkston v. State, 340 Ark. 530, 538, 10 S.W.3d 906 (2000). The first opportunity in this case was at the suppression hearing; another opportunity arose at trial when the prosecution introduced the fist along with the other items seized. Stephens, however, did not object to the evidence until Deputy Freeman’s testimony on redirect examination.

In any event, Stephens had known of the list at least for at least the five months following the suppression hearing. He had asked for documentary evidence in a discovery motion, and he does not claim that he was denied access to the list. The State cannot be held responsible for Stephens’s failure to investigate the evidence, nor was Stephens entitled to rely on discovery alone as a substitute for thorough investigation. See Rychtarik v. State, 334 Ark. 492, 501, 976 S.W.2d 374 (1998). In addition, the State was not obligated to tell Stephens what it was planning on having Deputy Freeman testify to with respect to the names on the list. See Munson v. State, 331 Ark. 41, 51, 959 S.W.2d 391 (1998); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994) (“the State has no obligation to discover to defense counsel the substance of the anticipated testimony by State’s witnesses”). We therefore conclude that Stephens’s argument on this point is meridéss.

Finally, Stephens raises a novel argument in his reply brief, urging that this court has applied an improper standard of review in cases involving motions to suppress. For this proposition, he cites Ornelas v. United States, 517 U.S. 690 (1996), which held that “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas, 517 U.S. at 699. The Court further stated that “a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id.

Our court has historically reviewed trial courts’ denials of motions to suppress using a “clearly erroneous” standard. Our most recent pronouncement of this standard came down this past June, in Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000), where we expressed the standard as follows:

When this court reviews a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Id.

Gilbert, 341 Ark. at 605.

However, while Stephens’s argument brings up an interesting legal question, we decline to address it at this time for a number of reasons. First, the argument is not timely raised. Stephens did not broach the subject until his reply brief; as a result, the State was given no opportunity to respond to this argument.

Secondly, we are not entirely convinced that our standard of review is at odds with the one enunciated by the Supreme Court. This court first formulated its standard of review in search-and-seizure cases in State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978):

We have never stated our standard for appellate review of the trial court action granting or denying motions to suppress evidence obtained by means of a warrantless search. Although the substantial evidence rule has been followed by this court in nearly every instance of review of any fact finding by circuit judge, even on questions pertaining to admissibility of evidence, there has been at least one outstanding exception since our decision in Harris v. State, 244 Ark. 314, 425 S.W.2d 293, cert. den. 393 U.S. 941, 89 S.Ct. 308, 21 L.Ed.2d 278. We then decided that we would make an independent determination of the voluntariness of a confession as a basis for its admission into evidence, giving respectful consideration to the findings of the trial judge on the critical issue. This review was crystalized into a standard articulated in Degler v. State, 257 Ark. 388, 517 S.W.2d 515 and followed thereafter. See, e.g., Smith v. State, 259 Ark. 849, 537 S.W.2d 158. We have also extended it to at least one other situation pertaining to admissibility of evidence. See Hammers v. State, 261 Ark. 585, 550 S.W.2d 432.
Pursuant to Degler, we make an independent determination based upon the totality of the circumstances, but will not set aside a trial judge’s finding of voluntariness unless it is clearly against the preponderance of the evidence. In this approach, we have given considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts. Harris v. State, supra. We must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Whitmore v. State, 263 Ark. 419, 565 S.W.2d 733 (1978).

Osborn, 263 Ark. at 557, 566 S.W.2d at 140.

Without additional argument and citation of authority, we are unable to say our standard is in conflict with that set out in Ornelas. The Supreme Court directed reviewing courts to examine the factual findings of trial courts “only for clear error” and give “due weight to inferences drawn from those facts by resident judges”; our standard, as set forth in Osborn, requires us to do the same.

Finally, we note that in reviewing the record before us, the outcome would be the same under the Ornelas standard or the one our court has adopted. In short, the trial judge who heard Stephens’s motion to suppress made an appropriate factual finding that there was no pretext involved in Stephens’s arrest. Based on that finding, the judge reached the correct legal conclusion to deny Stephens’s motion to suppress. In other words, whether we applied our “independent determination based on the totality of the circumstances” and “clearly erroneous” standard of review or examined the record de novo, giving a clear error review of historical facts as described in Ornelas, we conclude that the trial court made the right decision. ' Simply put, Deputy Freeman arrested Stephens based on an outstanding arrest warrant, and he then conducted a lawful search incident to arrest. We hold the trial court’s ruling to allow the evidence gained from the search of Stephens and his car was correct.

For the foregoing reasons, we affirm Stephens’s convictions.

Brown and Smith, JJ., concur.

Robert L. Brown, Justice,

concurring. I agree with the majority opinion but write only to expand on one point. The majority opinion correctly cites Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), for the following proposition:

An ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. Id. (citing Hines v. State, 289 Ark. 50, 55, 709 S.W.2d 65, 68 (1986)). The reasoning is that the arrest for the overt violation would have taken place in any event; thus there is no reason to bring the Fourth Amendment and the exclusionary doctrine-into play. Id.

The Mings opinion, however, goes forward and emphasizes that an objective, reasonable-officer standard is applied in determining whether the arrest is valid and relies on Wayne R. LaFave’s distinguished treatise as authority. See 1 Wayne R. LaFave, Search and Seizure § 1.4, at 22 (Supp. 1994). Thus, failure to meet the objective and reasonableness standard set out in Mings can undermine the validity of an arrest. We recently upheld a reasonableness standard for pretextual arrests in State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), reh’g denied 340 Ark. 318-A, 16 S.W.3d 551 (2000).

Smith, J., joins.

       In his reply, Stephens first makes mention that the warrant was stale or perhaps was outside the statute of limitation. However, Stephens still offers no convincing argument or citation of authority concerning the warrant’s invalidity, and we have said on numerous occasions that we do not consider arguments unsupported by convincing authority, unless it is apparent without further research that they are well taken. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998).

       This rule provides that “[a] law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation ... of crime.”

       Stephens did not attack the validity of the warrant, but even if he had challenged it, the United States Supreme Court has indicated that a law enforcement officer “executing an arrest warrant is [not] required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent.” Baker v. McCollan, 443 U.S. 137, 145-56 (1979)

       This appeal was originally filed in the Court of Appeals, but was certified to us on the basis of this perceived conflict between Ornelas and our standard of review.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice.

text:
    David Carroll GOODWIN v. STATE of Arkansas
    CR 99-11
    27 S.W.3d 397
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      Teri L. Chambers, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant David Carroll Goodwin, an inmate in the Arkansas Department of Correction, was charged with furnishing a prohibited article in violation of Ark. Code Ann. § 5-54-119 (Repl. 1997). He was convicted in Izard County Circuit Court of the lesser charge of possession of a controlled substance in a detention facility in violation of Ark. Code Ann. § 5-64-401 (F) (Supp. 1999). He was sentenced to an additional term of six years’ imprisonment, to be served consecutive with his current term. Goodwin sets forth two points for reversal: (1) that the State failed to adequately prove the chain of custody involving the marijuana introduced at trial; and (2) that the trial court erred in instructing the jury that possession of marijuana is a lesser-included offense of furnishing a prohibited article. This case was certified to us from the Arkansas Court of Appeals as requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b) (5) and (d)(1). We find no error and affirm.

The record reflects that on February 9, 1998, Jerry Landreth, an officer at the North Central Unit of the Arkansas Department of Correction, was making a check in the barracks when he noticed Goodwin carrying an eyeglass case. Landreth took the case from Goodwin, and when he opened it, two small packages fell out. The packages contained a total of 0.152 grams of marijuana. According to Landreth, he turned over the packages containing the marijuana to Sergeant Kelly Hatman that same day. Hatman testified that once he received the items from Landreth, he locked them in the evidence room at the back of the penitentiary for about an hour until the warden arrived. Hatman then locked the items in the warden’s evidence locker. Officer Gary Poland testified that he is in charge of the warden’s evidence locker and maintains the log of its contents. According to Poland, the marijuana seized from Goodwin was placed in the evidence locker on February 10, 1998, where it remained until February 18, when Officer Tommy Cleveland from the Arkansas State Police took possession of it. Cleveland then delivered the marijuana to the Arkansas State Crime Lab on February 23, 1998. The marijuana was tested and remained at the State Crime Lab until the day before Goodwin’s trial when Cleveland retrieved it from the Crime Lab.

I. Chain of Custody

For his first point on appeal, Goodwin argues that the trial court erred in allowing the State to introduce the marijuana at trial because the State failed to establish a sufficient chain of custody. Specifically, Goodwin argues that there was a break in the chain of custody from the time it was given to Sergeant Hatman and the time it was secured in the evidence locker. He points to the fact that Hatman testified that he locked the marijuana in the evidence locker on February 9, the same day it was received; however, Officer Poland testified that his log showed that the items were not locked in the evidence locker until February 10.

This court has consistently held that the purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); see also Ark. R. Evid. 901. The State is not required to eliminate every possibility of tampering with the evidence; rather, the trial court must be satisfied within a reasonable probability that there has been no tampering. Crisco, 328 Ark. 388, 943 S.W.2d 582; Newman, 327 Ark. 339, 939 S.W.2d 811.

Here, there was testimony from officers of the correctional facility that they consistently maintained custody of the items once they were seized from Goodwin. Those same officers also testified that the marijuana introduced at trial was in substantially the same condition as it was when they originally took possession of it. The fact that there is a one day discrepancy between when Officer Hatman stated that he locked the evidence in the locker and when the log showed that it was placed in the locker is not enough to establish a break in the chain of custody. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissable as a matter of law. Crisco, 328 Ark. 388, 943 S.W.2d 582; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

We also disagree with Goodwin’s assertion that the present situation is analogous to that in Crisco, 328 Ark. 388, 943 S.W.2d 582. There, the description of the substance seized was completely different from the way it appeared when analyzed by a chemist at the State Crime Lab. On appeal, this court held-that the State had failed to sufficiendy establish the chain of custody. This court recognized that proof of the chain of custody for interchangeable items like drugs or blood needs to be more conclusive. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999); Crisco, 328 Ark. 388, 943 S.W.2d 582. In this case, however, there is no assertion that the substance introduced at trial differed in appearance or content from the substance seized from Goodwin. Moreover, there are no allegations of any tampering with the marijuana. The State established a sufficient chain of custody over the marijuana; thus, Goodwin’s argument is without merit.

II. Lesser-included Offense

For his second point on appeal, Goodwin argues that the trial court erred in instructing the jury that possession of marijuana is a lesser-included offense of furnishing a prohibited item. During the trial, Goodwin argued that possession was a totally different charge, and that because the information only charged him with furnishing a prohibited article, the State could not request an instruction on possession. Goodwin contended these were two different types of crimes because one was found under the heading of obstructing governmental operations, while the other is found under the heading of controlled substances. The State argued that possession is a lesser-included offense because in order for one to be able to furnish something, they must first possess it. The trial court agreed with the State and instructed the jury on the lesser-included offense. The jury ultimately found Goodwin guilty of the lesser-included offense of possessing marijuana in a detention facility.

This court has consistently held that an offense must meet three criteria to be considered a lesser-included offense: (1) it must be established by proof of the same or less than all the elements of the greater offense; (2) it must be of the same generic class as the greater offense; and (3) it must differ from the greater offense based upon degree of risk to persons or property or upon grades of intent or culpability. See Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985).

As set out below, all three criteria are met here. First, the proof required to establish the offense of possession of marijuana is the same as the proof required to establish the offense of introducing a prohibited article into a correctional facility. Specifically, one cannot furnish a controlled substance without exercising some degree of dominion, control, and management over it. Ark. Code Ann. § 5-1-102(15) (Supp. 1999). See also Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992) (possession of a controlled substance is a lesser-included offense of delivery of a controlled substance). The second criteria requires that the offenses be of the same generic class. Flere, the offense of possessing marijuana in a correctional facility and the offense of furnishing a prohibited article are of the same generic class in that they both involve the possession of items prohibited by law within a correctional facility. Indeed, Ark. Code Ann. § 5-54-101(10)(B) (Repl. 1997) provides that a controlled substance is a prohibited article within the meaning of the statute. Finally, there must be a distinction between the offenses based upon grades of intent or degrees of culpability. Furnishing a prohibited article is a Class B felony, while possession of a controlled substance in a correctional facility is a Class D felony. Accordingly, because each of the criteria for lesser-included offenses has been established, Goodwin’s argument on this point is without merit.

Affirmed.

BROWN, J., concurs.

Robert L. Brown, Justice.

I would also affirm this case on the lesser-included offense point, but I would do so on the basis of the statute (Ark. Code Ann. § 5-1-110(b) (Repl. 1997)), and not the following cases cited in the majority opinion:

Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985).

My reason for this is simple. Our cases require that the three criteria cited in the majority opinion all be met while § 5-l-110(b) speaks in the disjunctive and provides that an offense qualifies as lesser included if only one of the factors is met. Our case law erroneously construes § 5-1-110(b), and for that reason I would not rely on it.

       We recognize that there is a possible inconsistency between our case law and the provisions of Ark. Code Ann. § 5-1-110 (Repl. 1997). This issue has not been raised or briefed by either party; rather, both parties base their arguments on the long-standing case law announced by this court. Because neither party has had the benefit of briefing this issue, we do not address it. We would, however, be inclined to address the issue when it is properly raised and briefed by parties in the future.


author: Robert L. Brown, Justice.

text:
    Wardell FRANKS v. STATE of Arkansas
    CR 00-205
    27 S.W.3d 377
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      Bishop & Bishop, by: Eric T. Bishop, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey Weber, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Wardell Franks was convicted of first-degree murder for the slaying of Shirley Gillam and sentenced to life in prison. He appeals on the basis that the evidence was insufficient to sustain the verdict. We affirm.

The facts of this case are largely undisputed. On the evening of October 23, 1998, Franks and Gillam met at Brookshire’s, a shopping establishment in Ashdown. They decided to leave and drove their respective cars to an area behind the Soulville Club. There, Gillam joined Franks in his car, and they apparently engaged in sexual activity. Franks and Gillam left separately, and later on Franks realized that he did not have his wallet. He went back to the location behind the club and found his wallet, which had contained at least $200 but now was empty. He became enraged and went to his house to get his gun, a Virgo .38 caliber revolver. He began searching for Gillam. He found her in the duplex mobile home where Preston Adams and Helen Cook lived. Cook was related to Gillam. He knocked on the door, and Gillam went out on the front porch to speak with Franks. Franks accused her of stealing his money and threatened her with the gun. Gillam stated that she did not have his money and, according to Franks, taunted him, saying that she did not believe that he would shoot her. At that time, Franks, who was holding Gillam by her shirt collar with the gun in her face, shot her in the mouth. She fell to the ground. Franks shot her twice in the back as she lay on the ground.

After the killing, Franks drove his pick-up truck to his place of employment and walked home. Witnesses at the crime scene described the truck Franks had been driving to police officers, and the truck was later found at Franks’s place of employment, Little River Millworks, and impounded. The next morning, Franks called the Ashdown Police Department and reported that his truck had been stolen. Police officers went to where he was residing, and while they were waiting for other police officers to arrive, Franks left from the rear of the house, carrying a gun inside of a towel. Franks was arrested, and the gun, which was the Virgo .38 caliber revolver, was sent to the Arkansas Crime Lab for testing. The test results showed that the bullets removed from GiUam’s body were fired from this gun.

While in custody Franks initially denied knowing anything about the murder. Later, he told police officers that he was with Gillam the night before and that he did find his empty wallet at the Soulville Club location where the two had been. He further admitted to going home, getting his gun, and searching for Gillam. When he found her, he admitted that he told her to give him his money, and she re&sed. He then said that he “shot three times.”

Franks was charged with first-degree murder. At trial, the defense counsel moved for directed verdict on the ground that the evidence of the necessary intent for first-degree murder was deficient. The motion was denied. The trial court, however, did instruct the jury on the lesser-included offenses of second-degree murder and manslaughter. The jury returned a verdict of first-degree murder, and Franks was sentenced to life imprisonment.

The only point raised by Franks on appeal is that the evidence was insufficient to sustain a verdict of first-degree murder. The essence of his argument is that he was provoked by Gillam’s presumed theft and taunting comments just before the slaying. This court has stated that the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). In determining whether substantial evidence exists, we view the evidence in the light most favorable to the State. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).

Here, the undisputed facts show that Franks was infuriated when he discovered that his money was missing from his wallet after he had been with Gillam and that he went to get his gun before searching for Gillam. When he confronted Gillam at the Adams/ Cook residence, he said, “Give me my money or I will blow the top of your head off.” Gillam replied that she did not have his money and added,“Oh, I guess you’re going to shoot me.” This comment further infuriated Franks. He backed her against the wall, grabbed her shirt, and pointed the revolver in her face. He said, “You don’t believe Ell shoot you.” He shot Gillam in the mouth and twice in the back after she fell to the ground. The Associate Medical Examiner, Dr. Stephen Erickson, testified at trial that the gunshot wound in the mouth itself was not fatal, but that Gillam died from multiple gunshot wounds and specifically from two gunshot wounds to her back. Franks admitted to investigating officers that he shot his revolver three times. The bullets retrieved from Gillam’s body were positively fired from the Virgo .38 caliber gun found in Franks’s possession. Viewing this evidence in the light most favorable to the State, it is more than ample to support a conviction for first-degree murder.

Franks, however, takes issue with the fact that he was charged with and found guilty of first-degree murder, which requires that a defendant “[w]ith a purpose of causing the death of another person, . . . causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). The Criminal Code defines the culpable mental state of “purposely” as: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1997). Franks maintains that there is no evidence that he purposely went about the murder. Rather, he argues that he was enraged by Gillam’s actions, and when he shot her, he was “under the influence of extreme emotional disturbance .for which there is reasonable excuse.” Ark. Code Ann. § 5-10-104. That is the criminal intent for manslaughter, which he advocates, would have been the more appropriate conviction.

Again, we have no hesitation in affirming the verdict and sentence in this case. The evidence is substantial that Franks purposely carried out a plan of murder after the theft of $200 by going home to retrieve his gun and shooting his victim not only in the mouth but twice in the back. Under these facts, the jury could reasonably have concluded that the shots in the back were to assure her death. Moreover, we note that mere taunts such as those relied on by Franks as a catalyst for his emotional disturbance have been held by this court not to be a sufficient provocation to sustain even a manslaughter conviction. See Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). In Spann, we said that the necessary provocation for manslaughter must be in the form of physical fighting, a threat, or a brandished weapon. Id.

The record in this case has been reviewed pursuant to Supreme Court Rule 4-3 (h) for reversible error, and none has been found.

Affirmed.