author: Annabelle Clinton Imber, Justice.

text:
    Kathy STEWART v. STATE of Arkansas
    CR 97-1276
    964 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998
    [Petition for rehearing denied April 16, 1998.]

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

At the conclusion of a bench trial, the appellant, Kathy Stewart, was convicted of possession of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997). On appeal, Stewart challenges the trial court’s denial of her motion to suppress the evidence that was seized from her coat pocket. We reverse and remand.

On December 4, 1995, at approximately 1:45 a.m., Officer Spangler was patrolling an area of Lithe Rock that was known to him to have “high drug traffic.” As Officer Spangler approached the intersection of 27th Street and Broadway, he noticed Kathy Stewart standing on the corner outside of her home. Based upon the time of day, where she was standing, and the fact that he had previously made several arrests in that area, Officer Spangler believed that Stewart might be engaged in drug trafficking.

Officer Spangler pulled up to where Stewart was standing and asked her what she was doing. Stewart answered that she was about to go for a walk. Officer Spangler asked Stewart to remove her hands from her coat pocket and to walk towards his patrol car. As Stewart approached Officer Spangler’s vehicle, she placed her right hand inside of her right coat pocket two or three times despite Officer Spangler’s repeated requests to keep both of her hands out of her jacket. Stewart’s behavior caused Officer Spangler to believe that she might have a weapon in her coat pocket.

When Stewart reached the police car, Officer Spangler asked her to place both hands on the car, and he proceeded to perform a pat down search for weapons. After feeling a large bulge in Stewart’s right coat pocket, Officer Spangler reached into Stewart’s pocket and retrieved thirty-five one dollar bills, a one hundred dollar bill, and a matchbox. Officer Spangler then opened the matchbox and discovered two rocks of crack cocaine. Stewart was subsequendy arrested and charged with possession of a controlled substance.

Prior to trial, Stewart filed a motion to suppress the drugs seized from her pocket because the warrantless stop was made without “a reasonable and articulable suspicion that [she] was armed and dangerous nor with probable cause to believe that [she] had committed a felony.” At the beginning of the bench trial, Stewart reminded the court of her pending motion to suppress, and asked the court to “take the matter up” at the same time that it considered whether she was guilty of possession of a controlled substance. The trial judge granted Stewart’s request.

The State proceeded to present its case-in-chief against Stewart. When the State offered the drugs into evidence, Stewart objected on the basis that the State had failed to establish a proper chain of custody, but she did not renew her constitutional challenges to the stop and subsequent search. After the State established a proper chain of custody, the drugs were admitted into evidence. The State presented no further evidence and rested its case. Stewart immediately followed with her argument that the drugs should have been suppressed due to the unconstitutional stop and search. The same argument was renewed by Stewart at the conclusion of the trial. The court denied Stewart’s motion to suppress and found her guilty of possession of a controlled substance.

In Stewart v. State, 59 Ark. App. 77, 953 S.W.2d 599 (1997), the Arkansas Court of Appeals reversed Stewart’s conviction and remanded for a new trial because it concluded that the police officer exceeded the permissible scope of a pat-down search under Terry v. Ohio, 392 U.S. 1 (1968), when he removed the matchbox from Stewart’s pocket and examined the contents. We granted the State’s petition to review, and decide the case as if the appeal was originally filed in this court. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

I. Contemporaneous Objection

On appeal, the issue is whether the trial court erred when it denied Stewart’s motion to suppress the drugs seized from her coat pocket. Before reaching the merits of Stewart’s argument, we must first decide whether she has properly preserved this issue for appeal. The State contends that she has not because she failed to make a contemporaneous objection when the drugs were offered into evidence. Hence, we are asked for the first time -to decide whether a contemporaneous objection is required during a bench trial when the previously filed motion to suppress has been renewed at the beginning of the trial.

It is well setded that in order to preserve an issue for appeal the appellant must make an objection contemporaneously with the alleged error. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). In State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), we explained that the reason for the contemporaneous-objection rule is to give the trial court an opportunity to fully understand the reason for the disagreement with its proposed action before it renders a ruling. If, however, the motion to suppress is orally renewed at the beginning of a bench trial, and the trial court agrees to consider the motion to suppress at the same time it considers the evidence, there is no risk that the court will be unfamiliar with the nature of the objection. Under these circumstances, we hold that a contemporaneous objection is not required in order to preserve the issue for appeal.

In reaching this conclusion, we are not unmindful of two recent cases where we held that a contemporaneous objection is required in order to preserve for appeal issues that were raised in a motion in limine. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). We, however, find these cases distinguishable because they involved jury trials, instead of a bench trial as in this case. If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose. Similarly, in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), we held that litigants are not required to make a motion challenging the sufficiency of the evidence during cases tried before the court instead of a jury.

For these reasons, we hold that during a bench trial it is not necessary to make a contemporaneous objection when the contested evidence is offered if the appellant has renewed the previously filed motion to suppress at the beginning of the trial, and the court agrees to consider the motion simultaneously with the evidence on the merits. Accordingly, we hold that Stewart has properly preserved her constitutional argument for appeal.

II. Constitutionality of the Initial Encounter

As to the merits, Stewart contends that the trial court erred when it denied Stewart’s motion to suppress the drugs seized from her coat pocket. When reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. In making this determination, we view the evidence in the light most favorable to the State. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, 117 S. Ct. 2411 (1997).

In order to resolve this issue, we must first decide whether the police action in the initial encounter between Officer Spangler and Stewart was permissible under the Constitution and our Rules of Criminal Procedure. In Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), we recently explained that there are three types of encounters between the police and private citizens:

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

(citing Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988)).

The State first contends that the initial encounter between Officer Spangler and Stewart was a permissible “stop” or “seizure” under Ark. R. Crim. P. 3.1, which provides that:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or ■ verify the identification of the person or to determine the lawfulness of his conduct.

In this context, we have defined a “reasonable suspicion” as a suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995); Ark. R. Crim. P. 2.1. In making this determination, the trial court may consider several factors which are listed in Ark. Code Ann. § 16-81-203 (1987). The factors most relevant to this case are:

1) the demeanor of the suspect;
2) the gait and manner of the suspect;
6) the time of the day or night the suspect is observed;
8) the particular streets and areas involved;
12) incidence of crime in the immediate neighborhood;
13) the suspect’s apparent effort to conceal an article;

As mentioned previously, Officer Spangler testified that he asked Stewart to approach his patrol car because she was standing on a street corner in a known drug area at around 1:45 a.m. Officer Spangler also testified that Stewart returned her hand to her coat pocket two or three times, thus possibly indicating that she was concealing a weapon. However, Stewart did not do this until after Spangler asked her to approach the car, and thus it cannot be used as a justification for the stop. In addition, there was nothing about Stewart’s actions or demeanor that indicated that she was involved in any illegal activity. Thus, Officer Spangler’s only justification for stopping Stewart was simply that she was standing in the wrong place at the wrong time. Under such limited circumstances, we have no hesitancy in saying that the trial court’s finding that Officer Spangler had a reasonable suspicion to stop Stewart under Ark. R. Crim. P. 3.2, was clearly against the preponderance of the evidence.

This, however, does not end our inquiry because the State claims that, in the alternative, Officer Spangler’s initial contact with Stewart was permissible under Ark. R. Crim. P. 2.2, which provides that:

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) . . . Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.

On several occasions, we have clarified that an encounter under Ark. R. Crim. P. 2.2, is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997); Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982); Meadows v. State, 296 Ark. 380, 602 S.W.2d 636 (1980).

For example, in Hammons v. State, supra, we held that it was permissible under Rule 2.2 for an officer to approach the driver of a parked car in the course of investigating a tip from a confidential informant that the driver of a black corvette was selling drugs behind the Old Town Tavern. Likewise, in Baxter v. State, supra, we held that an officer had not violated Rule 2.2 when he asked a driver about a theft from a nearby jewelry store that occurred only ten minutes earlier. In both of these cases, the initial encounter, which was not a seizure under the Fourth Amendment, was permissible under Ark. R. Crim. P. 2.2 because the officer was seeking assistance in the investigation of a particular crime.

In contrast, in Meadows v. State, supra, we held that an officer violated Rule 2.2 when he questioned two passengers who were exiting a plane simply because they repeatedly looked back at the officer and quickened their pace when they realized that he was following them. There was nothing in the officer’s testimony that suggested that he asked Meadows for identification in the course of an investigation. Id. In State v. McFadden, supra, an officer received a report that a juvenile girl was missing from her home, and that she might be with McFadden, her boyfriend. Because no criminal activity was suspected at the time of the encounter, we held that the officer violated Rule 2.2 when he pulled over McFadden and questioned him about the juvenile’s disappearance. Id.

In this case, Officer Spangler pulled over to the curb where Stewart was standing and asked her to approach his patrol car simply because she was standing on the corner in a high crime area late in the evening. Unlike Hammons and Baxter, Officer Spangler was not investigating a nearby crime or a tip from an informant at the time of the encounter. Under these circumstances, we cannot say that the encounter was permissible under Rule 2.2.

Because the initial encounter was impermissible under Ark. R. Crim. P. 2.2 and 3.1, we reverse the trial court’s denial of the motion to suppress as it was clearly against the preponderance of the evidence. In light of this holding, there there is no need for us to consider Stewart’s final argument that the extent of the search was unconstitutional under Minnesota v. Dickerson, 508 U.S. 366 (1993). Moreover, we note that this particular constitutional challenge is procedurally barred because Stewart did not raise it below. See Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994); Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993).

For these reasons, we reverse and remand.


source: Caselaw Access Project

author: Annabelle Clinton Imbbr, Justice.

license: Public Domain

text:
    Jimmie L. WILSON v. James A. NEAL
    96-1524
    964 S.W.2d 199
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      George E. Hairston, E. Dion Wilson, Victor Hill, Roy C. Lewellen, and Sam Whitfield, Jr., for appellant.

      Daggett, Van Dover, Donovan & Perry, PLLC, by: Robert J. Donovan, for appellee.
   Annabelle Clinton Imbbr, Justice.

Attorney Jimmie L. Wilson appeals the trial court’s order of summary judgment which disbarred him from the practice of law in Arkansas. We reverse and remand for a hearing to determine the appropriate sanction for Wilson’s violation of Model Rule of Professional Conduct 8.40).

In the words of Chief Judge Waters of the United States District Court, the procedural background of this case is “long and tortured,” Neal v. Wilson, 920 F. Supp. 976 (E.D. Ark. 1996), and it has been discussed in detail in three other opinions. See Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 117 (1995); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). The facts relevant to the issues presented in this appeal are as follows.

In 1981 and 1982, Jimmie L. Wilson borrowed approximately $775,230 from the Farmers Flome Administration (FmFIA) for farm operating expenses. The loan was secured by an FmHA lien on Wilson’s crops. On August 22, 1990, Wilson pled guilty in the United Stated District Court, Eastern District, to three counts of violating 18 U.S.C. § 658 by “knowingly” disposing of soybeans and rice that were mortgaged and pledged to the FmHA, and two counts of violating 18 U.S.C. § 641 by “knowingly” taking money from a Department of Agriculture bank account and using it for unapproved purposes. For these crimes, Wilson was sentenced to four and one-half months in prison and three years of probation. The United States District Court also suspended Wilson’s license to practice law in the federal courts until final disposition of the disciplinary actions taken against him.

On March 29, 1991, the Arkansas Committee on Professional Conduct (“Committee”) notified Wilson that a complaint had been filed against him alleging that his misdemeanor convictions in the federal court constituted a violation of the Model Rules of Professional Conduct. Wilson failed to respond either personally or in writing to the merits of the allegations contained in the complaint. On July 22, 1991, the Committee determined by a unanimous vote that Wilson had violated the Model Rules, and on October 9, 1991, the Committee filed a disbarment action against Wilson in the Phillips County Circuit Court.

Over the next five years, numerous pleadings and interlocutory appeals were filed in this case. See Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997); Neal v. Wilson, 920 F. Supp. 976 (E.D. Ark. 1996); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 117 (1995); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). Finally, on August 30, 1996, the Phillips County Circuit Court entered summary judgment in favor of the Committee. In its order, the court: 1) rejected Wilson’s argument that the Committee had denied him due process of law by denying his requests for extensions to respond to the initial complaint; 2) denied Wilson’s request for additional discovery; 3) found that Wilson had violated Model Rule 8.4; and 4) held that disbarment was the appropriate sanction. From this order, Wilson filed a timely notice of appeal.

On appeal, Wilson contends that there were numerous errors and violations of his constitutional rights throughout the disbarment process before the Committee and the trial court. We will address these issues in the order in which they arose.

I. Double Jeopardy and Collateral Estoppel

As previously mentioned, this is the third state appeal in this matter. For his first argument on appeal, Wilson contends that the doctrines of collateral estoppel and double jeopardy should have prevented the Committee from continuing the disbarment action against him. Wilson is procedurally barred from raising these arguments on appeal because they were not raised below or ruled upon by the trial court. Wilson v. Rebsamen Ins. Inc., 330 Ark. 687, 957 S.W.2d 678 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997). Accordingly, we reject this argument without reaching the merits.

II. Requests for Extensions

Next, Wilson contends that the Committee violated his right to procedural due process when it denied his requests for an extension to prepare a response to the initial complaint filed before the Committee. Citing McCullough v. Neal, 314 Ark. 372, 862 S.W.2d 279 (1993), the Committee contends that this issue is procedurally barred because Wilson failed to exhaust his administrative remedies. According to Sections 5(E)(3) and (F)(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, an attorney who has been cautioned, reprimanded, or suspended has a right to a de novo hearing before the Committee. In McCullough, we held that an attorney who failed to exercise this administrative remedy was procedurally barred from contesting the Committee’s decision on direct appeal. Id. This case, however, is distinguishable from McCullough, because if the vote is to initiate disbarment proceedings, Section 5(E)(5) declares that the Committee shall file a disbarment action in circuit court and “there shall be no hearing before the committee.” Because Wilson did not have any further administrative remedies before the Committee, as did the attorney in McCullough, we conclude that the issue is not procedurally barred.

Turning to the merits, we have previously explained that the power to regulate and define the practice of law is a prerogative of the judicial department as one of the divisions of government. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Weems v. Supreme Court Comm. on Prof'l Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975). Moreover, Amendment 28 to the Arkansas Constitution declares that, “[t]he Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” Accordingly, we have promulgated the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys of Law, which state in relevant part that:

(1) Upon receiving information of such complaint, the attorney shall have twenty (20) days in which to file a written response consisting of an original and eight (8) copies with the Executive Director ....
(2) The Executive Director is authorized to grant, at the request of an attorney, an extension of reasonable length for the filing of a response. Subsequent requests for extensions must be in written form and will be ruled on by the Chairman of the Committee.

Section 5(C).

On March 29, 1991, the Committee sent Wilson a letter announcing that a complaint had been filed against him. According to Section 5(C)(1), Wilson had twenty days to respond to the complaint. Instead of filing a response, Wilson’s attorney sent a letter to the Committee on April 15, 1991, asking for an extension until August 30, 1991. The Executive Director of the Committee granted Wilson an extension until May 20, 1991. On appeal, Wilson argues that the Committee violated his rights because it granted him an extension for only one month instead of for the three and one-half months that he requested. According to Section 5(C)(2), the Executive Director has the authority to grant the first extension for a “reasonable length” of time. We hold that one month was a reasonable length of time because Wilson already had twenty days to respond, and he was represented by competent counsel who could have helped him prepare his response.

On May 20, 1991, Wilson tendered a second request for an extension which was denied by the Committee Chairman. At this point, the Committee had already given Wilson one extension, thereby allowing him almost two months instead of the usual twenty days to file his response. Accordingly, we also hold that the Committee did not violate Wilson’s rights when it denied his second request for an extension.

III. Constitutionality of the Procedures Regulating Professional Conduct

After denying Wilson’s two requests for extensions, the Committee determined by a unanimous vote that Wilson’s misdemeanor convictions in the federal court constituted a violation of the Model Rules. The Committee then filed a disbarment action against Wilson in the Phillips County Circuit Court pursuant to Section 6(B), which states in relevant part 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.)

On appeal, Wilson argues that this rule is unconstitutional because it grants the Committee unfettered discretion to determine what crimes constitute a violation of Model Rule 8.4(b), and to arbitrarily choose when they will pursue disbarment. We find no merit to either of these arguments because the rule unambiguously proclaims that the Committee “shall” institute a disbarment action when it determines that a crime constitutes a violation of Model Rule 8.4(b). The Committee simply has no discretion on whether or not to file a disbarment action. Moreover, it is the trial court, not the Committee, that ultimately determines whether there has been a violation of the Model Rules, and whether disbarment is the appropriate sanction. Section 5(G)(2). Accordingly, we also find no merit to Wilson’s third point on appeal.

IV. Discovery

After the disbarment action was filed, Wilson propounded interrogatories to the Committee which included a detailed request for information regarding any complaint the Committee had ever received against an attorney who had been convicted of a criminal offense. Wilson contended that he needed this information to develop his disparate-treatment argument. When the information was not forthcoming, Wilson filed a motion to compel, which was denied by the trial court. Wilson claims that the trial court committed reversible error when it rendered this ruling. We disagree.

It is well settled that a trial court has wide discretion in matters pertaining to discovery, and thus we will reverse a trial court’s ruling only when there has been an abuse of discretion. Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). Moreover, a discovery motion must be considered in light of the particular circumstances which give rise to the request and the need of the movant for the information requested. Parker, supra; Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978).

We hold that the trial court did not abuse its discretion when it denied Wilson’s motion to compel for several reasons. First, the majority of the information that Wilson requested was a matter of public record which he could have easily obtained from the Arkansas Supreme Court Clerk pursuant to Section 4(C), which declares that:

When a letter of caution, reprimand, or suspension becomes final under these Procedures, or when the Committee decides to initiate disbarment proceedings, a copy of such shall be forwarded to the Clerk and shall be maintained as a public record by the Clerk.

Second, during the hearing on Wilson’s motion to compel, the Executive Director of the Committee voluntarily took the stand and answered many of Wilson’s questions about other attorneys who had been convicted of criminal offenses. The Committee also presented its files, which were reviewed in camera by the trial court. After reviewing the materials, the court determined that the Committee had adequately complied with Wilson’s request.

Finally, the court found that Wilson had been given ample opportunity over the five years that this case was pending to engage in meaningful discovery, but that he had been “less than diligent.” Based on these circumstances, we cannot say that the trial court abused its discretion when it denied Wilson’s motion to compel. Accordingly, we also affirm on this point.

V. Violation of Model Rule 8.4(b)

The first issue the trial court had to resolve in the disbarment action was whether Wilson’s misdemeanor convictions constituted a violation of Model Rule 8.4(b). Model Rule 8.4(b) provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In his defense, Wilson argued that his misdemeanor convictions did not constitute a violation of this rule because he did not commit the crimes with a culpable mens rea. We hold that the trial court properly rejected this argument for two reasons.

First, both crimes to which Wilson pled guilty-required knowing conduct. See 18 U.S.C. §§ 641 and 658. Wilson pled guilty to three charges that he knowingly disposed or converted to his own use crops pledged to the FmHA, and to two charges that he knowingly took money from a controlled Department of Agriculture bank account and used the money for unapproved purposes. Second, Section 6(B) declares that a certified copy of the judgment of conviction “shall be conclusive evidence of the attorney’s guilt” of the underlying crime, and that the attorney may not “offer evidence inconsistent with the essential elements of the crime for which he was convicted.” Thus, once Wilson was convicted in federal court, he was precluded from relitigating the elements of the crimes during the disbarment proceeding.

After considering the arguments by both sides, the trial court entered summary judgment in favor of the Committee. As we have said on numerous occasions, a trial court may grant summary judgment pursuant to Ark. R. Civ. P. 56 if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Rebsamen Ins. Inc., 330 Ark. 687, 957 S.W.2d 678 (1997); Sanders v. Bradley County Human Serv. Pub. Facilities Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). In making this determination, we review the evidence in the light most favorable to Wilson, as the party resisting the motion, and resolve all doubts and inferences in his favor. Wilson, supra; Sanders, supra. In this case, the trial court concluded that the “law of the case” and the “undisputed facts” required a determination that Wilson’s misdemeanor convictions constituted a violation of Model Rule 8.4(b). These rulings will be considered separately.

We hold that the trial court erred when it concluded that the law-of-the-case doctrine prevented it from deciding whether Wilson violated Model Rule 8.4(b). The law-of-the-case doctrine precludes a trial court from reconsidering questions that were “explicitly or implicitly” determined on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). In Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994), Wilson’s first appeal in this case, one of the issues on appeal was whether the Model Rules were applicable because they were adopted after Wilson committed the federal crimes, but before he was convicted. We held that the Model Rules applied because the relevant date was the day Wilson was convicted and not the days on which the crimes were committed. Id. In making this determination we said:

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.

Id. With this language, we were merely clarifying our holding that the Model Rules applied to Wilson’s federal convictions. We were not, however, either “explicitly or implicitly” making a factual conclusion that Wilson’s conduct constituted a violation of Model Rule 8.4. In fact, later in the opinion we specifically denied the Committee’s request to pronounce judgment on this issue because the trial court had not ruled on the matter. Id. Accordingly, we conclude that the trial court erred when it found that the law of the case mandated summary judgment in favor of the Committee.

This, however, does not end our inquiry because the trial court also found that “the undisputed facts” established that Wilson’s federal convictions constituted a violation of Model Rule 8.4(b). We agree. According to Model Rule 8.4(b), it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The Comments to Rule 8.4 further explain that:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return .... Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category.

(Emphasis added.)

In this case, Wilson was convicted of five counts of “knowingly” converting money and property that belonged to the federal government in violation of 18 U.S.C. §§ 641 and 658. Although all five crimes were misdemeanors, we agree with the trial court that these convictions involved dishonesty and a breach of trust, and seriously undermined “the confidence of the public in our legal profession.” See In re Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). Because we have no hesitation in holding that Wilson’s convictions reflected adversely on Wilson’s fitness to practice law, we affirm the trial court’s finding that Wilson violated Model Rule 8.4(b).

VI. Right to A Full Trial

Next, Wilson argues that by entering summary judgment on this issue, the trial court denied him a right to an “action” and a “trial” under Section 5(G)(1), which states that:

An action for disbarment shall be filed with the Clerk of the Circuit Court of the county in which the attorney resides, or in which the alleged violation was committed. In disbarment suits, the action shall proceed as an action between the Executive Director and the respondent. Proceedings in the Circuit Court shall be held in compliance with the Arkansas Rules of Civil Procedure and trial shall be had before the Circuit Judge without a jury.

Wilson somehow construes this section to give him an absolute right to a full trial and thus precludes the entry of summary judgment. We disagree. According to Section 5(G)(1), the Rules of Civil Procedure, including Ark. R. Civ. P. 56 on summary judgments, apply once the Committee files a disbarment action in the circuit court. Because summary judgment was appropriate in this case for the reasons explained above, we hold that the trial court was not required to hold a full trial.

VII. Appropriate Sanction

Once the trial court concluded that Wilson’s federal convictions constituted a violation of Model Rule 8.4(b), the next step was to determine the appropriate sanction. It is in this final stage of the disbarment proceeding that we find reversible error.

In its order of summary judgment, the trial court incorrectly found that Wilson “must be disbarred as a matter of law” according to Section 6(B), which provides 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.) We disagree with the trial court’s reasoning because this section declares what type of action the Committee must file and does not limit the sanctions the court may impose. Instead, we hold that the correct provision is Section 5(G)(2), which provides in relevant part that:

If the Circuit Judge finds that the attorney has violated the Model Rules, he shall caution, reprimand, suspend, or disbar such attorney as the evidence may warrant.

(Emphasis added). It is clear from this provision that the trial court was not required to disbar Wilson, but was entitled to select any one of the four listed sanctions. Accordingly, we hold that the trial court erred when it concluded that disbarment was required as a matter of law.

Again, this does not end our analysis because the trial court also declared in its order of summary judgment that “even if this conclusion were not reached as a matter of law, this Court’s conclusion would be the same, based upon the undisputed facts.” We cannot agree because the trial court reached this conclusion without all the information necessary to make a decision on the appropriate sanction.

During the hearing on the Committee’s motion for summary judgment, the trial court assured Wilson that if it concluded that he had violated Rule 8.4, it would hold a second hearing to determine the appropriate sanction. The trial court, however, never held the second hearing as promised, and instead ordered disbarment before Wilson was ever provided an opportunity to present evidence in mitigation. Clearly, at this point in the disbarment proceeding, Wilson should not have been allowed to relitigate the elements of the underlying crimes, or whether his convictions constituted a violation of Model Rule 8.4(b). Both parties, however, should have been able to present some evidence and arguments as to which of the four sanctions was appropriate in this case.

The American Bar Association Joint Committee on Professional Standards has developed the following list of aggravating and mitigating factors that we think are useful in a court’s determination of an appropriate sanction:

Aggravating Factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.
Mitigating Factors:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when;
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
0 delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
0 remorse;
(m) remoteness of prior offenses.

Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992).

For these reasons, we affirm the trial court on the first six issues and reverse only on the final issue of sanctions. We remand for a sanction hearing during which each side may present evidence and arguments regarding the above-listed aggravating and mitigating factors. The parties, however, must limit their arguments to these matters, and for the reasons explained above, are precluded from relitigating the elements of underlying federal crimes, or whether those convictions constituted a violation of the Model Rules.

Affirmed in part and reversed and remanded in part for proceedings consistent with this opinion.

Special Justices Gene E. McKissic, Charles D. Barnette, and Jack T. Lassiter join in this opinion.

Newbern, Glaze, and Corbin, JJ., not participating.

       This statute says in relevant part that:
      Whoever, with intent to defraud, knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to, or held by, . . . the Secretary of Agriculture acting through the Farmers Home Administration . . . shall be fined under this title or imprisoned ... or both ....

       This statute says in relevant part that:
      Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or any department or agency thereof, . . . shall be fined under this title or imprisoned ... or both ....


author: Ray Thornton, Justice. Tom Glaze, Justice, Annabelle Clinton Imber, Justice.,

text:
    Alvie NELSON v. TIMBERLINE INTERNATIONAL, INC.; Crum & Forster, Carrier; and Second Injury Fund
    97-439
    964 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Barber, McCaskill, Jones & Hale, P.A., by: Tim A. Cheatham, for appellees-petitioners Timberline International, Inc., and Crum & Forster Commercial Insurance.

      Judy W. Rudd, for appellee-respondent Second Injury Fund.
   Ray Thornton, Justice.

Timberline International, Inc., and Crum & Forster Commercial Insurance, its workers’ compensation carrier, appeal the decision of the Arkansas Workers’ Compensation Commission holding that the Second Injury Trust Fund is not liable for the permanent disability benefits awarded to Alvie Nelson, a former employee of Timberline, because his present condition resulted from the cumulative effect of successive injuries he received while in the same employment. The Arkansas Court of Appeals affirmed the Commission’s decision based on the authority of McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), and Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986). Nelson v. Timberline Int’l, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997). We granted review of the decision of the court of appeals pursuant to Ark. Sup. Ct. R. l-2(f).

The primary issue is whether we should overrule McCarver and Riceland Foods, in which we affirmed decisions of the court of appeals interpreting Ark. Stat. Ann. § 81-1313(i) (Supp. 1985), now codified at Ark. Code Ann. § 11-9-525 (Repl. 1996), to mean that the Second Injury Trust Fund is not liable for wage-loss disability benefits resulting from the cumulative effect of successive injuries when the claimant sustains the injuries in the same employment. We are persuaded by a careful review of the McCarver and Riceland Foods decisions that they should be overruled.

The facts of this case are not disputed. In 1988, Alvie Nelson suffered a lower-back injury while working as a diesel mechanic for Timberline. He eventually underwent back surgery resulting in a permanent impairment rating of fifteen percent to the body as a whole. When he recovered, Nelson returned to work at Timberline where he performed lighter work as a mechanic for about six months before being placed in the parts department where he worked for a year or so. Nelson then returned to his job as a diesel mechanic, and, in March 1992, he suffered another lower-back injury, for which he underwent two surgeries. Nelson has not returned to work or attempted to return to work since the second back injury. A neurosurgeon assessed his permanent impairment from the 1992 injury to be an additional fifteen percent to the body as a whole.

Timberline accepted full responsibility for the payment of benefits for the permanent physical impairment resulting from Nelson’s second injury. A hearing was held before an administrative law judge to determine the extent of Nelson’s permanent disability and the liability for any wage-loss disability benefits in excess of Nelson’s permanent physical impairment ratings. The judge found that Nelson was not permanently and totally disabled due to the March 1992 injury but that he had sustained wage-loss disability benefits of sixty percent. The judge also ruled that the Second Injury Trust Fund had no liability for these benefits.

Nelson appealed the administrative law judge’s decision to the Workers’ Compensation Commission, and Timberline cross-appealed, asserting that the Second Injury Trust Fund was liable for the wage-loss benefits over and above Nelson’s permanent physical impairment rating. The Commission rejected Nelson’s claim of permanent and total disability, but reversed in part, finding that Nelson had sustained a thirty percent impairment to his earning capacity in excess of his physical impairment rating. Furthermore, the Commission, citing our decisions in McCarver and Riceland Foods, affirmed the determination that the Second Injury Trust Fund had no liability for Nelson’s wage-loss disability benefits because he sustained the second disabling injury while working for the same employer for whom he had worked when he suffered his first compensable injury.

Both parties appealed the Commission’s decision to the court of appeals, which affirmed on both points. In its opinion, the court of appeals urged that the “same employer” defense, created by the court in McCarver and Riceland Foods, deserves our reconsideration. Nelson, 57 Ark. App. at 36, 942 S.W.2d at 261. Nelson did not file a petition asking us to review the court of appeals’ determination that there was sufficient evidence to support the Commission’s finding that he was not permanently and totally disabled; therefore, we do not address that determination. On May 5, 1997, we granted Timberline’s and Crum & Forster’s petition for review solely to determine whether we correctly interpreted Ark. Stat. Ann. § 81 — 1313(i), now codified at Ark. Code Ann. § 11-9-525, in McCarver and Riceland Foods to provide that the Second Injury Trust Fund is not hable for permanent disability benefits which exceed those directly related to a second injury in the same employment. When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997).

At the outset, we consider appellee’s, the Second Injury Trust Fund, argument that principles of stare decisis militate against revisiting our prior decisions interpreting the liability of the Fund under the statute. We are mindful that under the doctrine of stare decisis we follow the previous decisions of this court construing a statute. Scarbough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991); Southwest Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988). In Southwest Arkansas Communications, Inc., we considered the principle of stare decisis in the context of interpreting a constitutional provision and stated:

A cardinal rule in dealing with constitutional provisions is that they should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision or a statute has been construed, and that construction consistendy followed for many years, such construction should not be changed.

Id. at 145, 753 S.W.2d at 269 (citing O’Daniel v. Brunswick Balke Collender Co., 195 Ark. 669, 674, 113 S.W.2d 717, 719 (1938)). Nevertheless, as the United States Supreme Court has recognized, stare decisis has never been applied mechanically to prohibit overruling prior decisions that have determined the meaning of statutes. Monell v. New York City Dept. of Social Serv., 436 U.S. 658, (1978). Indeed, this court has, on occasion, departed from a prior statutory interpretation. See Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968). We believe the ultimate inquiry is whether there are compelling reasons for abandoning our prior judicial interpretation of the statute. As discussed below, upon review of the McCarver and Riceland Foods decisions, we conclude that compelling reasons exist to overturn them.

We also note that Ark. Code Ann. § 11-9-1001 (Repl. 1996) does not affect our ability to decide the issue before us. That statute provides:

When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so .... In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.

(Emphasis added.)

This language does .not preclude our review in this matter because we are not “liberalizing, broadening, or narrowing” the scope of the Workers’ Compensation Act. In addressing the liability of the Second Injury Trust Fund for permanent disability benefits under the statute, the issue relates only to the allocation of responsibility for payment of those benefits. The claimant receives the same compensation regardless of who bears the liability. We are not changing the scope of the Workers’ Compensation Act; rather, we are merely interpreting a statutory provision allocating responsibility for benefits, which is clearly a function of this court.

Prior to 1979, employers who employed previously impaired workers were obligated under Ark. Stat. Ann. § 81-1313(f)(l) (R.epl. 1976) to pay benefits for permanent total disability in the event a new injury had the cumulative effect of causing such a permanent disability. That statute provided:

If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability as provided in Section 10(a) 81-1310 of this Act.

Ark. Stat. Ann. § 81 — 1313(f) (1). In order to clarify the provisions of the Arkansas workers’ compensation law and to provide improved benefits for persons qualifying under the Act, the Arkansas General Assembly passed Act 290 of 1981, which significantly changed the laws relating to second injuries and repealed all laws in conflict with its provisions. Section 4 of Act 290 provides in pertinent part:

Commencing January 1, 1981, all cases of permanent disabilities or impairment where there has been previous disabilities or impairments shall be compensated as herein provided. ... If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage or disability or impairment caused by the combined disabilities or impairment is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no preexisting disability or impairment. After the compensation liability of the employer for the last injury, considered alone, . . . has been determined . . . the degree or percentage of employee’s disability that is attributable to all injuries or conditions existing at the time of the last injury was sustained shall then be determined . . . and the degree or percentage of disability or impairment which existed prior to the last injury plus the disability of impairment resulting from the combined disability shall be determined and compensation for that balance, if any, shall be paid out of a special fund known as a Second Injury Fund provided for in Section 47 (Ark. Stats. 81-1348).

(Emphasis added.)

This language appears to reflect a clear legislative intent that any employer who employs a handicapped or disabled worker is responsible only for such actual anatomical impairment as may result from the last injury, and the Second Injury Trust Fund is obligated to provide compensation for any greater disability that may result from a combination of injuries.

In 1986, the court of appeals decided Second Injury Fund v. Riceland, 17 Ark. App. 104, 704 S.W.2d 635 (1986) and Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986), in which the court of appeals interpreted Section 4 of Act 290 of 1981, now codified at Ark. Code Ann. § 11-9-525. We begin our analysis by reviewing those opinions to determine the basis upon which the court of appeals declined to apply the above quoted language to cover circumstances where the claimant sustained successive injuries during the same employment.

In those companion cases, the court of appeals reviewed and reversed decisions of the Workers’ Compensation Commission finding that the Fund was liable for the permanent disability benefits of the individual claimants even though all the injuries occurred while in the same employment. We consider the rationale employed by the court of appeals in each case separately.

In Riceland, the court of appeals reviewed a decision in which the administrative law judge and the Commission had determined that the Second Injury Trust Fund was hable for the permanent disability benefits based on the following language contained in paragraph three of Act 290, now codified at Ark. Code Ann. § 11-9-525 (b)(5):

If the previous disability or impairment or disabilities or impairments whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself; ....

Riceland, 17 Ark. App. at 106, 704 S.W.2d at 636. On review, the court of appeals found the statute was ambiguous and stated that “although it is possible to make the interpretation made by the law judge and the Commission, we do not think ‘previous disabiHty or impairment’ refers to a condition which occurred while in the employment of the second-injury employer.” Id. at 107, 704 S.W.2d at 636. Instead, the court of appeals focused on general language contained in Ark. Stat. § 81-1313 (i), now codified at Ark. Code Ann. ll-9-525(a)(l):

The Second Injury Fund established herein is a special fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment.

Id. at 106, 704 S.W.2d at 636 (emphasis in original). Based on this language, the court of appeals reasoned:

[I]f . . . the employer employing a handicapped worker is to be liable only for the disability or impairment that occurs when the worker sustains an injury during that employment, then it must follow that such employer will be liable for all the disability or impairment that occurs when the worker is injured while in that employment.

Id. at 107, 704 S.W.2d at 636 (emphasis in original).

The reasoning employed by the court of appeals in Riceland was both logically and legally flawed. It does not follow from the premise that the employer “is to be liable only for [injuries during an employment],” that the employer “will be hable for all [injuries during an employment.]” The establishment of the Second Injury Trust Fund was for the stated public purpose of encouraging employment of disabled or handicapped workers by assigning liabilities for some wage-loss consequences of a second injury to that Fund.

In McCarver, the court of appeals further reasoned that the Fund should not be liable for same employment injuries:

The legislature expressly stated that the purpose of the statute is to insure that an employer employing a handicapped worker will not be required to pay for a greater amount of the disability or impairment than that which the worker sustains while in the employment of that employer. Stretching the statute to require the Second Injury Fund to assume liability for part of the disability or impairment sustained by a handicapped worker while in an employer’s employment reheves that employer of part of his statutory liability and grants him a windfall or subsidy. It was not, in our opinion, the legislature’s intent to give employers that type of encouragement to hire or retain handicapped or injured workers.

McCarver, 17 Ark. App. at 103-04, 704 S.W.2d at 641. Contrary to the court of appeals’ conclusion, if we interpret the Fund law to mean that an employer’s liability is limited to the actual anatomical impairment resulting from the last injury, there is clearly no windfall to employers because it is the employers themselves who contribute to the Fund.

The court of appeals also inferred that the Fund could become insolvent if the statute was interpreted to allow employers to seek recovery from the Fund in instances where the employee sustained both injuries while employed by the same employer; therefore, the court of appeals reasoned that the solvency of the Fund required the application of what has become known as the “same employer” defense. Riceland, 17 Ark. App. at 107, 704 S.W.2d at 637; McCarver, 17 Ark. App. at 103, 704 S.W.2d at 641.

Our recent holding in Stucco Plus v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997) points out the faulty reasoning in McCarver and Riceland Foods. In Stucco Plus, we rejected an argument of the Workers’ Compensation Commission concerning the solvency of the Second Injury Trust Fund. In holding that the Commission’s reliance on protecting the solvency of the Fund was misplaced, we stated:

[I]n Mid-State Constr. Co. this court cited with approval Justice Newbern’s dissent in McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), which pointed out that the court of appeals’ reference to language from Arkansas Workmen’s Compensation Comm’n v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950) on consideration of the Fund’s solvency came from the Commission and not from this court. Secondly, we note that the funding mechanisms provided for the Fund in 1950 by Ark. Stat. Ann. § 81 — 1313(f)(2)(iii) (Supp. 1949) were remarkably different from the current funding mechanisms provided in Ark. Code Ann. §§ 11-9-301 to -307 (Repl. 1996). This difference in funding sources underscores that any considerations of the Fund’s solvency in this case is inappropriate. Finally, we note that, in the event the Fund becomes insolvent, the General Assembly has expressed an intent to provide claimants with arrearage once the Fund regains its solvency, without any possibility of reverter of responsibility for benefits to employers. Section 11-9-301(f).

Stucco Plus, 327 Ark. at 321, 938 S.W.2d at 559-60.

In 1986, we reviewed the decisions rendered by the court of appeals in McCarver and Riceland Foods. In our review, we affirmed the decisions of the court of appeals without fully addressing the rationale employed by that court in reaching its decisions, and we concluded:

If successive injuries in the same employment cause total and permanent disability the employer or his insurance carrier is responsible to the employee for all benefits. If the previous disability or impairment did not arise out of the employment by the same employer, the Second Injury Fund must pay the benefits.

Riceland Foods, 289 Ark. at 531, 715 S.W.2d at 435.

The question before us now is whether this determination of the Second Injury Trust Fund’s limited liability under the Riceland and McCarver decisions was correct. We begin our reconsideration by noting that the statutory language at issue is ambiguous; we must therefore interpret it using the tools of statutory construction. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning. Vanderpool v. Fidelity & Cas. Inc. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). The basic rule of statutory construction, to which all other interpretative guides must yield, is to give effect to the intent of the legislature. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In attempting to ascertain legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, legislative history, and other appropriate matters that shed light on the matter. Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).

We recently explained the legislative intent in the establishment of the Second Injury Trust Fund law as follows:

It is clearly expressed in section 11-9-525 that the purpose of the Fund is to fully compensate an employee for his total injuries while simultaneously protecting employers from having to pay for injuries that did not occur while the employee was working for that employer .... Moreover, the statute clearly and unambiguously provides for the Second Injury Trust Fund to make up the balance of the employees total benefits and the employer’s share when it states that the “fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined.”

Stucco Plus, 327 Ark. at 322, 938 S.W.2d at 560.

In light of the legislative intent, we examine again the judicial analysis used to reach the results of McCarver and Riceland. Based upon the flawed logic and incorrect assumptions regarding the solvency of the fund and a potential windfall to employers, which buttressed those opinions, we conclude that McCarver and Riceland Foods were wrongly decided. It remains for us to exercise our authority and responsibility to overrule those cases if a compelling reason exists for doing so. Such a compelling reason was recently articulated in Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). In Mid-State Construction, we reviewed an unpublished decision by the court of appeals that determined the Second Injury Trust Fund had no liability for the wage-loss benefits that resulted from the combination of a prior nonwork related impairment and a compensable injury. The court of appeals held that the employer and its carrier were liable for the full disability. In reversing that decision, we wrote the following regarding the result reached by the court of appeals:

That result impermissibly distinguishes between two types of handicapped persons, contravenes the statutory scheme which makes employers hable only for the “degree of percentage of disability or impairment which would have resulted from the [recent compensable] injury had there been no preexisting disability or impairment,” and defeats the purpose of the Fund to encourage the hiring of the handicapped.

Mid-State Constr. Co., 295 Ark. at 8, 746 S.W.2d at 543.

We also note that the legislative intent to make available employment opportunities for injured workers is a more significant public policy consideration than the determination of which of two privately funded providers of compensation benefits shall be responsible for payment of wage-loss disability benefits. Our reinterpretation of ambiguous statutory language to give effect to the legislative intent merely reallocates responsibility for payment of claims by requiring that the cost of additional wage-loss benefits, beyond the actual anatomical impairment resulting from the second injury, is to be borne by the Second Injury Trust Fund.

The requirement that the risk of employing an injured worker should be spread over the entire pool of employers is so fair and reasonable that it is apparently followed in every other jurisdiction that has a second injury fund law. See, e.g., Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990); Denton v. Sunflower Elec. Coop., 740 P.2d 98 (Kan. App. 2d 1987); Estep v. State Workmen’s Compensation Comm’n, 298 S.E.2d 142 (W.Va. 1982). We are unaware of any cases to the contrary.

As a result of our determination that Act 290 of 1981 must be reinterpreted to give effect to legislative intent, we also consider whether an earlier statute, Ark. Stat. Ann. §81-1313(f)(1) (Repl. 1976), remains effective. In Riceland, we noted that while Act 290 contained a clause repealing all provisions of law contrary to Act 290, Ark. Stat. Ann. § 81-1313(f)(l) was not inconsistent with Act 290 and need not be considered repealed by implication. Riceland, 289 Ark. at 532, 715 S.W.2d at 434. With the interpretation of Act 290 we adopt today, it is clear that Ark. Stat. Ann. § 81-1313(f)(1) is in conflict with Act 290, and accordingly is deemed repealed by implication by Act 290 from the time of this decision.

We conclude that our interpretation of Act 290 in McCarver and Riceland Foods was wrong and that it defeats the purpose of encouraging employers to retain employees with disabilities or impairments resulting from a prior injury in the same employment, in contravention of legislative intent. This is a compelling reason for overruling those decisions.

For the reasons stated, we reverse the Commission’s decision and remand for further proceedings consistent with this opinion.

Glaze, J., concurs.

Corbin and Imber, JJ., dissent.

Tom Glaze, Justice,

concurring. The dissenting opinion correctly sets out this court’s sound principles bearing on stare decisis, and I certainly do not take issue with them. This court has and continues to follow those rules, but it should not do so blindly. As the majority opinion says, stare decisis has never been applied mechanically to prohibit overriding prior decisions that have determined the meaning of statutes.

Only recently, this court dealt with the Second Injury Fund in the case of Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997), where we held the Worker’s Compensation Commission erred in relying on the Commission’s public policy to protect the solvency of the Fund. In so holding, the Stucco Plus case stood at odds with this court’s earlier cases of Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), and McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 428 (1986).

The Riceland Foods and McCarver cases were reviews of court of appeals’ decisions which were infected with the court of appeals’ belief that the solvency of the Second Injury Fund required the Fund law provisions to be strictly complied with. See Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986); Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986). In short, the court of appeals inferred that the Fund might become insolvent, if the court adopted an interpretation of the Fund law that permitted employers to seek Fund relief in instances where the injured or handicapped workers sustain both the first and second injuries while with the same employer. See, Glaze, J., dissenting, Riceland Foods, Inc., 17 Ark. App. at 100. Unfortunately, this court in its review of Riceland Foods expressly and favorably recognized the court of appeals’ solvency reference to the Fund as the state of the law. 289 Ark. at 532.

As already noted, our court, after deciding Stucco Plus as it did, had cases going opposite directions as to how Arkansas’s Fund law should be interpreted and what, if any, effect insolvency of the Fund should play in awarding benefits. As I see it, this court was either correct in its holding in Riceland Foods and McCarver, or it was correct in Stucco Plus, and it is this court’s province and duty to decide which case(s) should prevail. Stare decisis is simply not the issue; the issue, instead, is whether the rationale in Riceland Foods and McCarver prevails or whether the reasoning in Stucco Plus should stand.

Because I believe solvency of the Fund has no relevance when construing Fund provisions, I join with the majority court in overriding Riceland Foods and McCarver.

Annabelle Clinton Imber, Justice.,

dissenting. There are two fundamental principles of statutory construction that prevent me from joining the majority. The first, as the majority acknowledges, is that statutes and constitutions:

should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision or a statute has been construed, and that construction consistently followed for many years, such construction should not be changed.

Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993); Southwest Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988); O’Daniel v. Brunswick Balke Collender Co., 195 Ark. 669, 113 S.W.2d 717 (1938); Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476 (1936). The second principle is that once we have construed a statute, our interpretation becomes part of the act just as if it had been so written by the legislature. See, e.g., Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Gibson v. Gibson, 264 S.W.2d 418, 572 S.W.2d 146 (1978); E.C. Barton v. Neal, 263 Ark. 40, 562 S.W.2d 294 (1978); Merchant’s Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929).

Adhering to these two principles, we have, on many occasions, refused to abandon our interpretation of a statute or constitutional provision in the absence of legislative action. See, e.g., Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997) (thirty-six-year interpretation of the habeas corpus act, Ark. Code Ann. § 16-112-103); Morris v. McLemore, supra (one hundred-year interpretation of the statute of limitations for legal malpractice actions, Ark. Code Ann. § 16-56-105); Burns v. Burns, supra, (seven-year interpretation of the marital property act, Ark. Code Ann. § 9-12-315); Scarbrough v. Cherokee Enters., 306 Ark. 461, 816 S.W.2d 164 (1991) (fifty-year construction of the standard of review in workers’ compensation cases, Ark. Code Ann. § 11-9-711); Southwest Ark. Communications, Inc. v. Arrington, supra (five-year interpretation of the usury law contained in Ark. Const., amend. 60); E.C. Lumber Co. v. Neal & Jones, supra (seventy-year construction of the mechanic’s lien statute, Ark. Stat. Ann. § 51-601); Gibson v. Gibson, supra (sixteen-year interpretation of the partition statute, Ark. Stat. Ann. § 34-1801).

Eleven years ago, we held in Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), and McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), that pursuant to Ark. Code Ann. § 11-9-525, the Second Injury Fund is not liable when an employee sustains successive injuries while working for the same employer. As mentioned previously, once we reached this conclusion, our interpretation became part of the Workers’ Compensation Act. Since that time, the General Assembly has convened on eight separate occasions, but no changes were made to Section 11-9-525 in response to our holdings in Riceland and McCarver. In fact, in 1993, the General Assembly made comprehensive revisions to the Workers Compensation Act, some of which were in response to particular cases decided by this court. 1993 Ark. Acts 796, §§ 6 and 31. Yet, Section 11-9-525, and our interpretation thereof, remained unchanged.

Even though the legislature has, by implication, approved of our holdings in Riceland and McCarver, the majority is willing to abandon our well-established precedent in favor of the policy considerations articulated by Timberline. Although these policy considerations appear persuasive, the identical arguments were considered and rejected by this court eleven years ago in Riceland and McCarver. In particular, the majority appears to have been persuaded by Timberline’s contention that our construction of Section 11-9-525 discourages employers from retaining impaired or injured workers. However, the record before us is devoid of any evidence indicating that this concern has been realized over the last eleven years. In the absence of such evidence, I am hesitant to abandon our well-established interpretation of Section 11-9-525.

Finally, as we said in Gibson v. Gibson, “even though we might feel that decision was wrong in retrospect, the construction of the statute . . . established a rule of [law], and we are not at liberty to overturn it.” Once we considered the relevant policy considerations and interpreted the ambiguous language contained in Ark. Code Ann. § 11-9-525, our construction became part of the statute itself, and it was up to the legislature to amend the act if it disagreed with our interpretation. The General Assembly has simply refused to do so, and we should not act in their stead.

For these reasons, I respectfully dissent.

Corbin, J., joins in this dissent.

       Regular Sessions in 1987, 1989, 1991, 1993, 1995 and Extraordinary Sessions in 1988, 1989, 1992.

       Specifically rejecting our interpretations of the exclusive remedy provision, Ark. Code Ann. § 11-9-107, in Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991); and Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991).

       Specifically rejecting our construction of the provision regarding the modification of-workers’ compensation awards, Ark. Code Ann. § 11-9-713, in International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990).


author: Per Curiam.

text:
    Jerry Chris JOHNSON v. STATE of Arkansas
    CR 97-1306
    964 S.W.2d 199
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      James Wyatt, for appellant.
    No response.
   Per Curiam.

Appellant Jerry Chris Johnson has filed an appeal from an order of the trial court denying his Rule 37 petition. His brief was filed on December 29, 1997, and the State, as appellee, filed its brief on January 26, 1998. Johnson, prior to filing his reply brief, has filed this motion to supplement the record and for an extension of time to file his reply brief.

According to his motion, Johnson requests that this court allow him to supplement the record on this appeal “with the abstract of his previous appeal.” We construe his request to be for permission to supplement the record in the instant case with the record of the underlying trial.

The motion is moot in that it is not necessary for an appellant in a postconviction appeal to request that the record be supplemented with the trial transcript. The transcript of a trial which has been lodged in the appellate court on direct appeal of the judgment is a public record. As such, it need not be incorporated into the record in a postconviction appeal which stems from the same judgment of conviction. Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997). As it will be necessary for Johnson’s counsel to abstract the record of the previous appeal, however, rebriefing should occur so that Johnson can file his original brief with an abstract which includes an abstract of the trial record.

Motion moot.


text:
    Anthony PACEE v. STATE of Arkansas
    CR 90-285
    962 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Petitioner, pro se.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for respondent.
   Per Curiam.

In 1990, Anthony Pacee was found guilty of four counts of violating the Arkansas Uniform Controlled Substances Act and the offense of being a felon in possession of a firearm. He was sentenced as a habitual offender to terms of imprisonment of twenty years, twelve years, twelve years, and life. We affirmed. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). Pacee subsequently filed in the trial court a petition for postconviction relief which was denied.

On December 16, 1997, Pacee filed a petition here entitled “Petition for an Extraordinary Remedy from a Judgment in Columbia County, Arkansas,” which invokes “the ancient writ of error coram nobis.” We treat the petition as a petition to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis and deny it. Once a judgment has been affirmed on appeal, a petition for leave to proceed in the trial court with a coram nobis action is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, citing United States v. Morgan, 346 U.S. 502, 512 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

Petitioner asserts that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the following grounds: (1) he was not informed of his right to counsel under Criminal Procedure Rule 36.4; (2) he was not present during an ex parte communication with the jury; and (3) he was denied effective assistance of counsel because a “fee cap” was in place which undermined his defense. We do not find that petitioner Pacee has demonstrated that there was a fundamental error extrinsic to the record which would have resulted in a different verdict had the fact been known at trial. As a result, there is no cause to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis.

Petition denied.


text:
    Calvin PORTER v. STATE of Arkansas
    CR 96-1477
    964 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Curtis L. Bowman, for appellant.

      Winston Bryant, Att’y Gen., by: O. Milton Fine, II, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Calvin Porter, was convicted of capital murder and sentenced to die by lethal injection. We affirmed the conviction and sentence in Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995). Porter subsequently sought a stay of the mandate while he petitioned the Supreme Court for a writ of certiorari. We granted the stay on October 23, 1995.

The Supreme Court denied certiorari in Porter v. Arkansas, 116 S.Ct. 1329 (1996), on March 25,1996. Consequendy, this court issued the mandate from the direct appeal on April 1, 1996.

Porter sought postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. He filed his petition in the Jefferson County Circuit Court on June 17, 1996. The State responded with a motion to dismiss in which it argued that the Circuit Court did not have the jurisdiction to grant relief because Porter’s petition was filed more than sixty days after the issuance of the mandate. The Circuit Court dismissed Porter’s petition as untimely. Porter now appeals that order. We remand the case for a hearing in order to determine whether Porter had an attorney at the time the Clerk issued the mandate, and if not, whether he mistakenly relied on that fact.

In this appeal, Porter contends that his petition should not be considered untimely because he did not receive “actual notice” from the Clerk of the Supreme Court or from the Jefferson County Circuit Clerk that the appellate mandate was issued on April 1, 1996. He argues that due process requires this Court to change its practice in order to insure that the appellant receives actual notice of the issuance of the mandate. We decline to change the practice of issuing the mandate direcdy from this Court to the Clerk of the Circuit court that entered the judgment of conviction. We have previously noted that it is incumbent on a convicted defendant to determine when the judgment is entered before filing a notice of appeal. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994).

The aspect of this case that concerns us, however, is the absence of facts that indicate how Porter became aware of the issuance of the mandate, and if the delay in his awareness of the issuance was in any way related to the unique circumstances surrounding the status of his legal representation at that time. Specifically, Porter’s brief indicates that the Director of the Arkansas Capital Resource Center, A1 Schay, represented Porter before the Supreme Court. While Porter’s petition for a writ of certiorari was pending, however, funding for the Arkansas Capital Resource Center was terminated. Under these circumstances, it may well be that Mr. Schay’s representation of Porter ended when the funding for the Resource Center ceased, and that Porter did not have an attorney at the time the mandate was issued. More importantly, it may well be the case that the delay in filing Porter’s petition was caused by his belief that Mr. Schay, as his attorney, would notify him of the disposition of his certiorari petition and the issuance of the mandate and would file the necessary Rule 37 petition.

The importance of determining the status of Porter’s legal representation at the time the mandate was issued is highlighted by our new Rule 37.5 relating to death sentences. See In Re: Adoption of Rule 37.5 of the Rules of Criminal Procedure, 329 Ark. 641 (1997). Had Rule 37.5 been in effect, Porter would have been called before the Circuit Court within 21 days of the mandate’s issuance and the availability of counsel for Rule 37 purposes would have been assessed by the Circuit Court.

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1997) (Arkansas Effective Death Penalty Act of 1997), where the General Assembly expressly noted that the purpose of the Act was to comply with federal law by instituting a comprehensive state court review. Ark. Code Ann. § 16-91-204 (Supp. 1997). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Therefore, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.

Accordingly, we remand this case for a hearing in order to develop facts surrounding the status of Porter’s legal representation on April 1, 1996, and his understanding regarding the status of that representation.

Remanded.


text:
    Jacqueline WALLACE v. Frank BROYLES
    97-170
    961 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Joey McCutcheon, Gary L. Richardson and Chad R. Richardson, for appellants.

      Jeffrey A. Bell and Woody Bassett, III, for appellee J. Frank Broyles.

      Jeffrey A. Bell, for appellee Dean Webber.

      Davis, Cox & Wright, P.L.C. , by: Walter Cox, Jeffrey A. Bell and Woody Bassett, III, and Winston Bryant, Att’y Gen., by: Angela S.Jegley, Asst. Att’y Gen., for appellees James Woody Woodell and Harp’s Food Stores, Inc.

      Davis, Cox & Wright, P.L.C. , by: Walter Cox and Constance G. Clark, for appellees, Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter “Duke” Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd.
   Per Curiam.

Frank Broyles, Dean Weber, James “Woody” WoodeU, Harp’s Food Stores, Inc., Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter “Duke” Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd., petition for rehearing. They contend that we erred in our statement that the wrong standard was applied by the trial court in granting their motion for summary judgment. We disagree and deny the petition.

The argument is that we have, in prior summary-judgment appeals, used the very terminology used by the trial court here, i.e., whether “reasonable minds” could differ as to a factual conclusion to be reached. The petitioners set forth the following five of our earlier decisions in support of their point.

In Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991), we reversed a summary judgment in a wrongful-death case after pointing out that the potential evidence shown by discovery responses was in conflict. Although we spoke of “weighing” the proof, we wrote:

Some courts apply the “scintilla of evidence” rule which requires a court considering summary judgment to admit the truthfulness of all evidence favorable to the nonmovant, thereby removing all issues of credibility from the case, and determine if there are any facts from which a jury could reasonably infer ultimate facts upon which a claim depends; if so, the case must be decided by the factfinder. Schoen v. Gulledge, 481 So.2d 1094 (S.Ct.Ala. 1985). Our own rule is similar:
The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied.
Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).

In a subsequent paragraph we stated, “We have said that summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ.” Although we thus used the term “reasonable minds,” the context makes it clear that we were concerned with that part of Ark. R. Civ. P. 56(c) which entitles a moving party to a summary judgment if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Although facts may not be in dispute, they may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. We say again that, in such an instance, summary judgment is inappropriate.

Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993), is another case in which we reversed a summary judgment. We wrote:

The standard of review in these cases is well settled. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be resolved. If there is any doubt as to whether there are issues to be tried, the motion should be denied. In this case the defendants, as the moving parties, bore the burden of showing that there were no genuine issues of material fact. Plaintiff is entided to have all doubts and inferences resolved in his favor, and summary judgment is not proper if reasonable minds could reach different conclusions when given the facts. Tullock v. Eck, 311 Ark. 564, 785 S.W.2d 31 (1993).”

Again, we used the “reasonable minds” language but it was in combination with our concern with whether, although there might be no dispute as to underlying facts, different conclusions could be reached. Summary judgment was inappropriate.

Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996), was a legal malpractice action in which a summary judgment was granted in favor of the defendant-attorney. The summary judgment was premised on the fact that, although the attorney had been negligent, the damages claimed by the plaintiff resulted from events which were not proximately caused by the defendant’s negligence. In other words, the plaintiff had failed to produce evidence on an element of its claim. We wrote:

Tyson [the plaintiff] questions the determination of proximate [cause] by means of summary judgment. Summary judgment is to be granted by a trial court when it is clear that there is no genuine issue of material fact to be litigated, and, on appellate review, the appellate court determines if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). The granting of summary judgment can be appropriate in a legal malpractice suit. [Citation omitted.] Here, there was no question of material fact to be determined, and the evidence was such that reasonable minds could not differ about proximate cause. Thus, the trial court correctly granted summary judgment.

Obviously we did not mean, by the reference to “reasonable minds,” that the evidence was in a state to be weighed and we were doing so. Rather, we held the plaintiffs case was lacking in the element of proximate causation. There was no possibility of varying conclusions and no remaining issue of fact because of the lack of evidence of proximate causation. In Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983), a divided court reached a similar result on the ground that the plaintiff had presented no evidence of proximate causation.

The final Arkansas case cited by the petitioners is Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). That was a case in which the issue was whether a verdict should have been directed in favor of the defendant after the evidence had been produced at the trial. It was not a summary-judgment case. We wrote, correctly, that “proximate causation becomes a question of law only if reasonable minds could not differ.” In the directed-verdict context we are, as is the trial court, in a position to make that call even though there may be some conflicting evidence.

Also cited by the petitioners is Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), in which the Supreme Court stated that the summary-judgment standard “mirrors the standard for a directed verdict.” That statement was repeated by the Supreme Court, although it was not the basis of the holding, in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), a case we have cited often for other language concerning summary-judgment law but not for the “mirror” concept.

If it has not been clear heretofore, we hope this opinion clarifies that, although we follow federal courts’ interpretation of the parallel rule, F.R.C.P. 56(c) when possible for the sake of uniformity, we have never gone so far as to say, much less hold, that we will make a “sufficiency of the evidence” determination when a summary-judgment motion is at issue. We regard that directed-verdict standard, used in ruling on motions made pursuant to Ark. R. Civ. P. 50, as being somewhat different from the summary-judgment standard.

We have ceased referring to summary judgment as “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law.

Petition denied.


text:
    Shawn WATKINS v. STATE of Arkansas
    CR 98-160
    959 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Andre K. Valley, for appellant.
    No response.
   Per Curiam.

Shawn Watkins, by his attorney, has filed a motion for rule on the clerk.

His attorney, Andre K. Valley, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.