author: Steele Hays, Justice.

text:
    Charles W. FISHER, et al. v. CITIZENS BANK of Lavaca, et al.
    91-151
    819 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Phillip J. Taylor, for appellant.

      Truman H. Smith, for appellee Home Mutual Fire Ins. Co.

      Hardin, Jesson, Dawson & Terry, by: Gregory L. Crow, for appellee Richard Organ.

      James O. Coy, for appellee Citizens Bank of Lavaca.
   Steele Hays, Justice.

Charles Fisher and Cindy Fisher filed this suit in the Circuit Court of Crawford County against Home Mutual Fire Insurance Company and five other defendants to recover the proceeds of a fire insurance policy and for other incidental relief. The other defendants are Citizens Bank of Lavaca, holder of a first mortgage, Richard Organ, agent for Home Mutual, Carlisle Adjustment Company, which adjusted the fire loss and Verda Raybourn and Donna Roberds, real estate brokers. The defendants moved to dismiss under Ark. R. Civ. P. 12(b)(6), failure to state a claim for which relief could be granted, and the trial court ordered a dismissal as to all claims except those involving Raybourn and Roberds, reciting that it was a final judgment pursuant to Ark. R. Civ. P. 54(b).

Rule 54(b) permits an appeal from an order dismissing some of the claims or parties when a final order disposing of all claims has not yet been rendered. Under the rule the trial court “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The order from which this appeal is brought merely repeats the language of Rule 54(b) without stating any facts in support of the finding there is no just cause for delay.

In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), and again in Austin v. First National Bank, 305 Ark. 456, 808 S.W.2d 773 (1991), we gave express notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is likelihood of hardship or injustice which would be alleviated by an immediate appeal rather than at the conclusion of the case. Those essential findings, and the facts which undergird them, are wholly lacking in this order. The rule is not intended to create an avenue for two stages of review simply by citing Rule 54(b). It is intended to permit review before the entire case is concluded, but only in those exceptional situations where a compelling, discernible hardship will be alleviated by an appeal at an intermediate stage. There is nothing in the order itself, nor, so far as we can determine, in the litigation, suggesting in the slightest what hardship might await and, thus, why the case cannot first proceed to termination at the trial level. If appeal is allowed at this juncture it could well produce two appeals rather than one with the attendant burden on litigants, courts and system.

Appeal dismissed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Don LEWIS v. STATE of Arkansas
    CR 91-139
    819 S.W.2d 689
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991
    [Rehearing denied December 23, 1991.]

      Morehead & Morehead, by: Robert F. Morehead, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Don Earl Lewis was charged with four counts of delivery of crack cocaine. The counts were severed and appellant was tried and convicted on one count. That case is not before us. Appellant was then tried and convicted on the second count, the one which we now address. Three points for reversal are argued: The trial court should have granted a motion to dismiss for lack of a speedy trial; the trial court should not have permitted the introduction of evidence over an objection to the chain of custody; and the evidence was insufficient to support the verdict. We find no merit in these contentions.

Speedy Trial

Appellant was charged on September 12, 1989, with four counts of delivery of cocaine and arrested the following day. Under Ark. R. Crim. P. 28.1(c) and 28.2(a) the state had twelve months from September 12,1989, to bring him to trial. Trial was set for June 18, 1990, on all four counts. One week before trial appellant asked for separate trials by filing a motion to sever the four counts. The motion was considered and granted at a pre-trial conference the following day, June 12, and on June 18 appellant was tried on a single count. On July 12 the trial court entered an order stating, “On motion of the defendant this matter is continued from April 15, 1990, through August 20, 1990.”

Appellant’s second trial, the subject of this appeal, was held on November 2, 1990, fifty-one days beyond the time for speedy trial. Consequently, the burden is on the state to show the delay was justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Appellant’s primary argument in this appeal is that the trial court should have dismissed the remaining three counts for lack of a speedy trial. Since'appellant filed a pro se motion on that ground on October 25, the point has been properly preserved for review. At a hearing on the motion the trial court and opposing counsel discussed the proceedings at the June 12 hearing on the motion to sever and counsel for appellant stated he had no independent recollection of asking for a continuance. The deputy prosecutor responded:

BY THE DEPUTY PROSECUTOR, MR. HALTOM:
Your Honor, it’s the State’s recollection in this particular matter that due to the basis that the Defendant asked for a severance of these matters is why the continuance was granted. Now, I agree with Mr. Folsom [defense counsel] there wasn’t a direct request for continuance, but by the speedy trial rules themselves, when the Defendant asked for a severance of offenses, that tolls the statute.

At that point the trial court denied the motion and appellant was tried and convicted on the second count. We now address the points he raises in this appeal.

It is true, as appellant contends, that insofar as the order of July 12 purports to grant a continuance beginning two months earlier, April 15, it conflicts with the holding of Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). But the order is not otherwise flawed and when the sixty-nine days from June 12 to August 20 is excluded, appellant’s trial was within the time allowed under the speedy trial rules. See Ark. R. Crim. P. 28.3(c).

Appellant argues because no continuance was specifically requested, there is no excludable time. But that would require that an express recitation in an order be overridden by indistinct recollections of counsel. For that matter, the literal wording of the order does not state that a motion for a continuance was made, only that “On motion of the defendant this matter is continued from April 15, 1990, through August 20, 1990.” The motion referred to may be the motion to sever. Be that as it may, it is obvious the remaining counts could not be tried on June 18 as scheduled, and a delay in the trial attributable to the defendant constitutes “good cause” as provided in Ark. R. Crim. P. 28.3(h). The state was prepared to try the appellant on June 18, well within the time for speedy trial and it was the appellant’s motion to sever, filed on the eve of trial, that occasioned the delay. We have held a number of times that when the defendant is scheduled for trial within the time for speedy trial and the trial is postponed because of the defendant, that is “good cause” to exclude the time attributable to the delay. In Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982), the defendant was tried seventy-nine days beyond the speedy trial and we found good cause where his trial had been set for November 28, 1980, and defense counsel moved to withdraw on October 17 because of defendant’s lack of cooperation. That motion was granted on December 1 and the defendant was given until January 5 and then until February 2 to obtain counsel, resulting in a trial postponement to May 20.

In Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978), we rejected a speedy trial argument in these words:

There was no denial of a speedy trial. The case was set for trial well within the time allowed by Rule 28 of the Rules of Criminal Procedure. A few days before the scheduled trial Foxworth assaulted his counsel, which led them to ask for permission to withdraw. The court’s action in ordering a continuance to allow Foxworth to obtain other counsel was certainly a delay “for good cause” within Rule 28.3(h).

In Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), the defendant claimed ineffective assistance of counsel for failure to argue speedy trial. The trial court denied the claim because the defendant had moved for an omnibus hearing and then waived it fifty-five days later, reasoning that a speedy trial motion would have had no merit. While we reversed that ruling, we made it clear we would have agreed with the trial court if the motion for an omnibus hearing had delayed the trial.

In Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981), the defendant was tried thirty-one days beyond the time for speedy trial and his motion to dismiss was rejected. On February 28, 1980, the trial court set his trial for April 8 and on February 29 his attorney filed a motion to be relieved because he was to become a deputy prosecuting attorney on March 3. That motion was granted and substitute counsel was appointed on May 14. Still later, on August 18, a special prosecutor was appointed on the defendant’s motion alleging a conflict of interest. We held the postponement was for “good cause.”

Returning to the case at bar, it is clear the motion to sever filed one week before trial required that trial on three of the four counts be rescheduled. If the appellant took exception to either the wording of the order granting his motion, or the time excluded under its express terms, it was incumbent on him to bring that to the attention of the trial court within a reasonable time, rather than waiting until nearly four months had elapsed. A litigant may not complain belatedly when a timely objection could avert error. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).

Chain of Custody

Lewis also contends that the chain of custody of the crack cocaine he was charged with delivering was not adequately established at trial. We disagree.

Barbara Crowe, an undercover officer, testified that she bought seven rocks of crack cocaine from Lewis on August 8, 1989. After labeling and packaging the drugs in an envelope she turned them over about an hour later to Sergeant Don Nix with the Miller County Sheriffs Office. Sergeant Nix testified he accepted the envelope from Crowe and filled out a chain of custody form which he attached to the envelope. After he placed the envelope in an evidence locker Nix notified Lieutenant Bob Page who is in charge of submitting evidence to the State Crime Lab. Lieutenant Page stated that after Nix notified him he retrieved the evidence from a locked locker that only he, the Sheriff and Sergeant Nix had keys to. Page testified that he filled out his part of the chain of evidence form, placed the envelope into a larger one and mailed it to the crime lab for analysis, taking the envelope to the post office himself. Keith Kerr of the State Crime Lab testified that he received the envelope from the receiving station of the lab. He stated that the substance he analyzed was cocaine based. Kerr, resealed the envelope after the analysis and returned it to the receiving section of the lab to be mailed back to the Miller County Sheriffs Office. Lieutenant Bob Page testified that since receiving it from the crime lab the evidence had been in his possession in the locked locker until the date of the trial.

We have said that the purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To prove authenticity the state must show a reasonable probability that the evidence has not been altered in any significant way. Id. It is not necessary for the state to call every person who could have conceivably come into contact with the evidence; the trial judge in his or her discretion need only be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Phills v. State, 301 Ark. 265, 783 S. W.2d 348 (1990). Our review of the record shows that the chain of custody which was established at trial was sufficient to satisfy the judge that the evidence was genuine and he properly exercised his discretion in admitting it.

Sufficiency of the Evidence

For his final point on appeal, Lewis maintains that the evidence was. insufficient to support his conviction due to the defective chain of custody of the drugs. As has been demonstrated, the trial judge did not abuse his discretion in allowing the drugs admitted into evidence, therefore we need not address appellant’s final point.

Affirmed.

Dudley, Newbern, and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. This court should require the prompt trial of criminal cases. The majority opinion refuses to do so, and therefore, I dissent.

In the 1960’s, when an accused was charged with a crime, he was often released on bond, and remained free until he was tried; many times that was two (2) years later, sometimes three (3) years later, and on rare occasions, even longer. The accused usually was pleased with such a system. However, sometimes an accused did want a prompt trial in order to assure attendance of his witnesses, or to ensure the preservation of his records or other evidence, or to avoid a longer conditional release. Clearly, however, the public and the victim never did approve of such a system. A reform movement began. Its purpose was to ensure prompt trial of criminal cases. In 1968 the American Bar Association approved a draft of the Standards Relating To Speedy Trial. In 1971, this court created the Arkansas Criminal Code Revision Commission, and a part of its task was to implement standards relating to speedy trial. In 1972, the Supreme Court of the United States handed down the now famous case of Barker v. Wingo, 407 U.S. 514 (1972) which enunciated the present constitutional criteria for determining an accused’s right to a speedy trial.

In 1975 this court adopted the Criminal Code Revision Commission’s recommendations as the Arkansas Rule of Criminal Procedure. Article VIII of those rules is entitled “Speedy Trial.” The commentary to that article provides in part: “[T]he concern here is with how the interest of defendants and the public in prompt trial should be determined and protected.” (Emphasis added.) The Commission studied the American Bar Association’s standards. A part of that commentary provides:

The principles underlying most of the standards in ■ this report deal primarily with protection of the defendant, who otherwise would not be in a position to force a prompt trial. The interest of the public in the prompt disposition of criminal cases, however, must also be recognized. Speedy trial may be of concern to the defendant, as he may want to preserve the means of proving his defense, to avoid a long period of pretrial imprisonment or conditional release, and to avoid a long period of anxiety and public suspicion arising out of the accusation. From the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses.

Wayne R. LaFave, Standards with Commentary, Standards Relating to Speedy Trial 5-6 (A.B.A. 1967) (emphasis added).

Similarly, we have written that one purpose of the speedy trial rule is to protect the accused, but that it is also to protect the victim of the crime and, perhaps above all, to serve the interests of the public. See, e.g., Chandler v. State, 284 Ark. 560, 683 S. W.2d 928 (1985). The concept of the prompt and speedy trial is based upon sound public policy.

The only meaningful way to ensure that the public policy is effectuated is to discharge an accused who is not promptly tried. A prosecutor or a judge who allows many accused persons to be discharged will not long remain in office. In this way prompt criminal trials are assured.

The majority opinion amounts to an erosion of the speedy trial rule, and its precedent will set us back to the practices of twenty years ago. The accused will suffer, the victims will suffer, the witnesses will suffer, and the public will suffer.

In this case, the appellant was charged with four (4) felonies on September 12, 1989. Trial was set for June 18, 1990, well within the allowable twelve (12) months. On June 11,1990, the appellant moved to sever the four (4) charges and have separate trials. On June 12, the trial court granted the motion to sever the charges and set one of the felonies for trial on the scheduled trial date, June 18. The trial court did not enter findings at that time, but later concluded that the remaining three (3) cases could be tried at a later time, possibly in later years, because the motion for a severance necessarily implies a motion for a continuance. The majority opinion adopts such reasoning and provides that a continuance on three (3) of the four (4) counts was clearly necessitated by appellant’s motion to sever the offenses and is an excludable period. The majority opinion cites no authority for such a proposition because there is none. The majority opinion’s holding implies that, as a matter of law, an accused cannot be tried for two different crimes before the same panel of jurors. There is no such statute or case law, and the majority opinion is wrong in so holding.

Once a defendant is tried for one crime, a judge can recall the panel and select a fair and impartial petit jury from those members of the panel who did not hear the first trial. At times, a third petit jury can be selected. Under the majority opinion, the trial judge must now wait until the next term of court and provide the accused with a complete new panel. If the county in which the charges arise is like most counties, there are only two (2) terms of court each year. If the trials proceed as the one now before us has, the first count will be tried at or around the end of the first year; the second will be tried six months later, the third in the next term, or six (6) more months, and the fourth even six (6) months later. The intent and purpose of the speedy trial rule is obviously thwarted, and we are back to the practices of the 1960’s. Therefore, I dissent.

David Newbern, Justice,

dissenting. The deputy prosecutor who tried this case stated “There wasn’t a direct request for continuance.” The State’s brief before us admits “the trial court’s order granting a continuance was based on Lewis’ motion to sever the offenses.” The State does not even suggest that the Trial Court order of July 12, 1990, stating that Lewis moved for a continuance effective April 15,1990, was correct, and yet that is the only leg on which the majority opinion can stand.

The State cannot argue that Lewis sought any part of the 51 - day delay at issue here, much less a continuance from April 15, 1990, to August 20, 1990. Even if we were to hold, and I find no authority whatever for doing so, that the motion to sever was “tantamount” to a motion to continue, the State argues the August 20 date was based on a “term of court,” suggesting there was proof that a jury could not have been assembled to try Lewis until a new term of court began. The Court’s opinion wisely does not adopt that rationale, as there has been no showing that a jury could not have been empaneled from the venire serving Miller County during the months in question.

The majority opinion cites cases in which it was demonstrated that a defendant delayed a trial without moving for a continuance. There is no such proof in this case. If there were any evidence whatever that the severance motion caused the fatal 51-day delay, this would be a different matter. There is none.

Arkansas R. Crim. P. 28 is a Rule of this Court. We should not seek to evade its application as has been done in this case. As recently as October 1,1987, we amended the Rule to shorten the time in which a person charged but set at liberty must be tried. One purpose of the Rule is to assure an accused the benefit of the Sixth Amendment and Ark. Const, art. 2, § 10. See Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). There are other purposes as well, however, including serving the interests of victims of crime and, perhaps above all, the public. See Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1983). I can not countenance this obvious attempt to get around the Rule which was so patently applicable and so clearly violated.

I respectfully dissent.

Brown, J., joins in this dissent.


text:
    Albert N. WOMACK v. Judy R. WOMACK
    91-167
    818 S.W.2d 958
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Hoover, Jacobs & Storey, by: Joyce Bradley Babin, for appellant.

      Rice & Ogles, P.A., by: John Ogles, for appellee.
   Steele Hays, Justice.

When Albert and Judy Womack divorced in 1985 Albert Womack was ordered to pay $425 per month to Judy Womack as permanent alimony “in lieu of her right to receive said amount as a distribution of marital property.” The amount was one-half of Albert Womack’s military disability compensation paid pursuant to 10 U.S.C. §§ 1201 and 1202 (1986) and 38 U.S.C. §§ 3104 and 3105 (1981).

From November 1988 through December 1990 Albert Womack paid nothing to Judy Womack and in July 1990 she petitioned the chancery court to find Albert Womack in contempt. He responded that he had received no income other than disability compensation during the period involved which, he contended, was not subject to division or alimony. Albert Womack moved to modify the award on the grounds that disability income is not subject to division or to an award of alimony.

The chancellor denied the motion to modify, found Mr. Womack in contempt and awarded Mrs. Womack a judgment for an arrearage of $ 19,402.25. On appeal Albert Womack contends his military disability retirement benefits are not divisible or payable to Mrs. Womack for alimony purposes. Finding no error, we affirm the order appealed from.

Mr. Womack reasons that because the chancellor looked only toward his disability pay and awarded alimony in lieu of a property division, the chancellor in actuality made a property division of his disability benefits in violation of the provisions of the federal Uniformed Services Former Spouses’ Protection Act [10 U.S.C. § 1408 (1982 ed. and Supp. V)] (FSPA). The FSPA excludes such benefits from division in divorce where the retiree has waived military retirement pay in order to receive disability benefits, leaving state courts free to divide only “disposable” retirement pay in divorce suits. Mansell v. Mansell, 490 U.S. 581 (1989).

But we are not persuaded that simply because the order recites “in lieu of her right to receive said amount as a distribution of marital property” the chancellor made a property division in violation of the FSPA. The words are at most ambiguous and that being so we will presume them to be in conformity with the FSPA. Pelham v. The State Bank, 4 Ark. 202, 4 Pike 202 (1842). Where a judgment is ambiguous, it is the legal effect, rather than the mere language used, that governs. Magnolia Petroleum Co., et al. v. Caswell, et al., 295 S.W. 653 (Tex. Ct. App. 1927). Moreover, whether the chancellor looked only to Mr. Womack’s disability benefits in awarding alimony some six years ago is not discernible from this record and inferences to be drawn from a judgment or decree are not dependent on express words. Norrell v. Coulter, 218 Ark. 870, 239 S.W.2d 280 (1951). While it is plain the chancellor took note of the disability benefits paid to Mr. Womack, the fact is he made an award of alimony and nothing more — he did not order a division and did not direct that alimony be withheld from Mr. Womack’s benefits — and we do not think the gratuitous comment which accompanied the award converts it from alimony to a division of property.

We settled this issue for all practical purposes not long ago in Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990). In Murphy we recognized that the FSPA excludes disability benefits from division or alimony in divorce and that one spouse is not entitled to direct payments for alimony under the FSPA. However, we said that does not prevent a chancellor from awarding alimony, nor does it mean that a military retiree is relieved of the payment of alimony. For similar holdings see In re Marriage of Kraft, 808 P.2d 1176 (1991); Jones v. Jones, 780 P.2d. 581 (Hawaii App. 1989). We believe the holding in Murphy v. Murphy was correct and we have no inclination to overturn it.

Affirmed.


author: David Newbern, Justice.

text:
    MANITOWOC REMANUFACTURING, INC. v. William C. VOCQUE and Debra F. Vocque
    91-72
    819 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Baxter, Eisle, Duncan, & Jensen, by: Ray Baxter, for appellant.

      Laser, Sharp, Mayes, Bufford, & Watts, P.A., by: Kevin Staten, for appellees.
   David Newbern, Justice.

This case presents the question whether a chancery court has jurisdiction of an action to enjoin a nuisance, and if so, whether a claim upon which relief could be granted was stated. We hold that the Court has jurisdiction of the subject matter and that a claim upon which relief could be granted was stated. We reverse the Chancellor’s decision that the Court lacked jurisdiction.

The complaint of the appellant, Manitowoc Remanufacturing, Inc., alleged that in the early 1920s, the Rock Island Railroad acquired an easement across land presently owned by the appellees, William and Debra Vocque. The purpose of this easement was to place railroad tracks. During the time the easement was used by Rock Island, it was located on an elevated dump. Rock Island Railroad later declared bankruptcy, and the easement was abandoned.

Prior to the abandonment, Reynolds Metal purchased the property subject to the easement and established a mining operation on the property. Hurricane Creek surrounded the operation, and in the 1940s, Reynolds built dikes to contain the creek’s floodwaters and thus protect the business. These dikes and the elevated railroad dump served as a dam to keep the high waters of Hurricane Creek from flooding underground mining operations conducted south of the easement. Reynolds later built an extension of the dam in order to channel Hurricane Creek away from its original course and away from the mining operation.

In 1987, Reynolds sold the property which had been the location of the mining operation to the appellant, Manitowoc Remanufacturing, Inc. Manitowoc operates a manufacturing business on its portion of the former Reynolds property. Reynolds later sold to the Vocques the portion of the tract on which the elevated railroad dump continued to serve as a dam preventing Hurricane Creek from flooding the Manitowoc property.

Manitowoc’s claim is that the Vocques removed gravel from the dump creating a gap which caused the creek to flood the Manitowoc property, temporarily shutting down its operation. Manitowoc claims a prescriptive right in the continued maintenance of the easement as a flood control device and that the Vocques’ action in removing the gravel constituted a nuisance. Manitowoc requested a temporary restraining order and a permanent injunction prohibiting the Vocques from altering the course of Hurricane Creek by removing gravel from the dam. Manitowoc also claimed as damages lost profits, costs, and attorney’s fees.

In the motion to dismiss, the Vocques argued a landowner has no affirmative duty to maintain an artificial condition regulating the flow of water onto an adjacent landowner’s property. The Chancellor dismissed the suit without prejudice, but the order stated only that he “lacked equitable jurisdiction.”

The record before us consists only of the pleadings, the motion to dismiss, a response to the motion, briefs to the Chancellor from both sides arguing the issue whether a cause of action has been stated, an affidavit attached to Manitowoc’s response by a former Reynolds employee purporting to verify the history stated in the complaint, and the Chancellor’s order stating the Court lacked jurisdiction.

If possible, we decide chancery cases without remand. The record in this instance does not permit us to resolve this case altogether. We can, however, decide, in addition to the jurisdiction question, that Manitowoc stated a cause of action.

1. Jurisdiction

An injunction is an equitable remedy of which a chancery court has jurisdiction. Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Association, Inc., 285 Ark. 284, 686 S.W.2d 418 (1985); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973). A private nuisance is conduct on land which disturbs the quiet use and enjoyment of nearby property, and if injury to nearby property is certain and substantial, an injunction may issue. Arkansas Reliance Guidance Foundation v. Needier, 252 Ark. 194, 477 S.W.2d 821 (1972); Clark v. Hunt, 192 Ark. 865, 95 S.W.2d 558 (1936). It was error to hold the Chancery Court lacked jurisdiction.

2. Cause of action

a. Prescription

Manitowoc claims a prescriptive right in the continuance of the dam for its benefit. One asserting an easement by prescription must show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 235 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). If prescription is to be the basis of Manitowoc’s claim, one of these bases must be found.

b. Reliance

In its brief to the Chancellor Manitowoc argued it had stated a claim upon which relief could be granted because it had a right to rely on the continued existence of the dump or dam citing, among many other cases, Mitchell Drainage Dist. v. Farmers Irr. Dist., 256 N.W. 15 (Neb. 1934), and Greisinger v. Klinhart, 282 S.W. 473 (Mo. App. 1926). Manitowoc quoted from the Greisinger case a passage dealing with reciprocal easements created with respect to an artificial lake and stating that subsequent grantees from a common owner cannot alter the artificial condition absent “mutual agreement or joint action.”

The general rule is that an owner of property may create an artificial condition upon a portion of the owner’s land, benefitting another portion of the land, causing the condition to be regarded as the natural state of the property by subsequent grantees purchasing the property with notice of the condition. 3 Farnham, The Law of Waters and Water Rights, § 830 (1904). If an owner of land artificially creates a condition favorable to one portion of his property and then sells that portion, the grantee takes it with the right to have the condition continued. 3 Farnham, supra, § 833.

When an owner uses a part of his or her land for the benefit of another part, a quasi-easement has been held to exist. The part of the land benefitted has been referred to as the quasi-dominant tenement, and the land utilized for the benefit of the other property has been referred to as the quasi-servient tenement. When the owner of the land subject to a quasi-easement in favor of another part conveys the quasi-dominant tenement, an easement corresponding to the pre-existing quasi-easement is vested in the grantee of the land. The quasi-easement must be of an apparent, continuous, and necessary character. 3 Tiffany, The Law of Real Property § 781 (1920). These easements have been referred to as implied easements corresponding to pre-existing quasi-easements.

The doctrine originated in Lampman v. Milks, 21 N.Y. 505 (1860). A landowner diverted a stream flowing across his property through an artificial channel to benefit another portion of the property. The owner conveyed the land benefitted by the condition to the plaintiff and shortly thereafter conveyed the remaining property to the defendant. Four years later, the defendant attempted to eliminate the artificial channel which would have resulted in flooding the plaintiffs property.

The Court stated tile general rule that no easement exists if there is unity of ownership. Once a severance occurs by a sale of a portion of the property, easements or servitudes are created corresponding to the benefits and burdens existing at the time of the sale. When the owner of an estate sells a portion of it, the purchaser takes the land subject to the benefits and burdens appearing at the time of the sale. If a burden is imposed upon the portion sold, the purchaser takes subject to the burden provided it was open and visible. Specifically, the Court held “[t]he parties are presumed to contract in reference to the condition of the property at the time of the sale and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”

An implied easement corresponding to a pre-existing quasi-easement is similar to an implied easement by necessity. This Court has recognized that when, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part, and at the time of a later severance of ownership the servitude is in use and is reasonably necessary for the enjoyment of the part of the property favored by the servitude, the servitude survives the severance and becomes an easement by implication. The servitude must be obvious, apparently permanent, and reasonably necessary for the enjoyment of the property. “Necessary” has been held to mean there could be no other reasonable mode of enjoying the dominant tenement without the easement. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987); Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63 (1954).

The facts recited in Manitowoc’s complaint stated a claim upon which relief may be granted. As the Chancery Court had jurisdiction of the claim, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Glaze, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Harold Glen ABBOTT v. STATE of Arkansas
    CR 91-78
    819 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Kit Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Subject to his right to appeal the partial denial of a motion to suppress evidence pursuant to A.R.Cr. P. Rule 24.3(b), appellant, Harold Glen Abbott, pled guilty to the charges of possession of methamphetamine with intent to deliver and possession of drug paraphernalia. On appeal, he makes three arguments why the prohibition of unreasonable searches and seizures in the United States Constitution and the Arkansas Constitution were violated so as to require suppression of all evidence seized after his arrest. We find merit in appellant’s second argument and reverse.

The hearing on appellant’s motion to suppress evidence revealed that, on November 28, 1989, pursuant to information obtained from a confidential informant, Officer Robert Tuberville of the Fayetteville Police Department bought a substance from appellant which appellant represented to be hashish. On December 13, 1989, the Arkansas State Crime Laboratory reported to the Fayetteville police that the substance obtained from appellant on November 28,1989, was not hashish. On December 21, 1989, Officer Turberville and Officer Gary Greenshaw of the Springdale Police Department met with the same confidential informant and arranged a purchase of methamphetamine from appellant on the following day. At approximately 10:00 a.m. on December 22, 1989, Officer Turberville talked with the informant on the telephone and confirmed that the pending methamphetamine sale would occur at approximately noon that day. Sometime between the 10:00 a.m. phone call and appellant’s arrest at approximately 12:00 p.m., the two police officers obtained a warrant to arrest appellant for the charge of delivery of a counterfeit substance purported to be hashish, an alleged violation of Ark. Code Ann. § 5-64-401 (1987), occurring on November 28, 1989.

At approximately 12:00 p.m. on December 22, 1989, Officers Turberville and Greenshaw went to appellant’s motel room armed with the arrest warrant. The officers arrested appellant immediately when he answered the door. Because appellant had just stepped out of the shower and was clothed only in a towel, the officers handed appellant a pair of jeans lying on the floor of the motel room. Before handing appellant his jeans however, the officers searched the pants for weapons and found an opaque film canister containing approximately two grams of methamphetamine. While still inside appellant’s motel room, the officers noticed various drug paraphernalia on the top of the dresser. The officers then conducted a thorough search of the motel room, including the dresser drawers and the closet. This search produced some additional evidence including approximately 1.5 grams of methamphetamine.

As a result of the foregoing search and the evidence produced therefrom, appellant was charged by felony information with possession of methamphetamine with intent to deliver and possession of drug paraphernalia. Appellant filed a pretrial motion to suppress all evidence arguing that the warrant was invalid because it was based on an invalid charge and that the officers improperly executed the arrest warrant with the intent to search his residence without a search warrant rather than to seize his person.

The trial court stated there was no evidence that the arresting officers had knowledge that the arrest warrant was based on an invalid charge, therefore the arrest was proper. The trial court also stated that after the arrest was executed, the officers were entitled to pat appellant down or make a search incident to arrest including the clothing handed to appellant. The trial court also stated that any of the evidence seized on top of the dresser was lawfully seized according to the plain view doctrine. However, the trial court felt the additional search of the remaining parts of the motel room was contrary to the Fourth Amendment. Thus, in a ruling from the bench, the trial court denied the motion to suppress with respect to the film canister and its contents found in appellant’s jeans and the drug paraphernalia found on the top of the dresser; the trial judge granted the motion with respect to the methamphetamine and other evidence found in the dresser and closet.

The standard of review on appeal of a motion to suppress is well established. On review, we make an independent determination, based on the totality of the circumstances, as to whether evidence obtained by a warrantless search should be suppressed; we do not reverse the trial court’s finding unless it is clearly against the preponderance of the evidence or clearly erroneous. State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980).

On appeal, appellant asserts the charge for which the arrest warrant was issued is not a crime and therefore all evidence derived from his arrest should have been suppressed. The affidavit of probable cause for the arrest warrant was filed in the Washington County Clerk’s office at 11:37 a.m. on December 22, 1989. The affidavit was signed by a a deputy prosecuting attorney and municipal judge and stated there was reason to believe that on November 28, 1989, appellant “committed the offense of Illegal Delivery of a Counterfeit Substance (C Felony) . . . that was purported to be hashish in violation of A.C.A. § 5-64-401 [.]”

Section 5-64-401 (b) is the subsection of the Controlled Substances Act dealing with counterfeit substances. Section 5-64-401 (b) states in its entirety:

(b) Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance. For purposes of this subsection, possession of one hundred (100) dosage units of any one (1) counterfeit substance or possession of two hundred (200) dosage units of counterfeit substances regardless of the type shall create a rebuttable presumption that such person possesses such counterfeit substance with intent to deliver in violation of subsections (a) and (b) of this section of Article IV of Act 590 of 1971 as amended.
(1) Any person who violates this subsection with respect to:
(i) A counterfeit substance purporting to be a controlled substance classified in Schedule I or II, which is a narcotic drug, is guilty of a Class B felony;
(ii) Any other counterfeit substance purporting to be a controlled substance classified in Schedules I, II, or III, is guilty of a Class C felony;
(iii) A counterfeit substance purporting to be a controlled substance classified in Schedule IV, is guilty of a Class C felony;
(iv) A counterfeit substance purporting to be a controlled substance classified in Schedule V, is guilty of a Class C felony;
(v) A counterfeit substance purporting to be a controlled substance which is not classified as a scheduled controlled substance, is guilty of a Class D felony.

Hashish is a derivative of tetrahydracannibanol or marijuana and is accordingly classified as a Scheduled VI controlled substance. Appellant correctly points out that section 5-64-401 does not state that delivery of a counterfeit substance purported to be hashish, or for that matter any Schedule VI substance, is a Class C felony. Appellant’s argument continues with the proposition that because hashish is a controlled substance but not a controlled substance classified in Schedules I, II, III, IV, or V, delivery of a counterfeit substance purporting to be hashish is not in violation of Arkansas law. We agree.

When enacting section 5-64-401 (b), the legislature was very careful to enumerate the various crimes associated with counterfeit substances and their respective punishments. The classification scheme used by the legislature in section 5-64-401 (b) is clearly based on the list of scheduled controlled substances. See section 5-64-401(b)(l)(i) through (v). Thus, the absence of a crime and a respective punishment classification involving counterfeit Schedule VI controlled substances is particularly obvious.

Whether the absence of Schedule VI controlled substances in section 5-64-401 (b) is indicative of a legislative omission or oversight is irrelevant given White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976). In the White case, a jury found appellant White not guilty of the charge of possession of marijuana with intent to deliver, but did find him guilty of the mere possession of marijuana. White appealed contending that possession of marijuana was not an offense under the Controlled Substances Act, as amended by 1973 Ark. Act. 186. Act 186 of 1973 removed marijuana from the list of Schedule I controlled substances and reclassified it in a newly created Schedule VI. The remainder of the Controlled Substances Act was not amended to reflect the corresponding change in the scheduling of marijuana. The result of the failure to amend the remainder of the Act was that, due to the rescheduling of marijuana into Schedule VI, the possession, delivery, manufacture, or possession with intent to deliver or manufacture marijuana was no longer a crime. Reasoning that “the rule of law with respect to statutory construction of penal provisions is that nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused,” Id. at 366, 538 S.W.2d at 553, we agreed with appellant White and concluded that because of the new classification of marijuana into Schedule VI, there was no such crime as possession of marijuana. White’s conviction was therefore reversed. Since the White decision, subsections (a) and (c) of 5-64-401 have been amended to cure the problems caused by the reclassification of marijuana. However, the problem caused by the creation of a new Schedule VI in 197 3 Ark. Act 186 presently remains in section 5-64-401 (b). Thus, the delivery of a counterfeit substance purported to be hashish (a marijuana derivative) is not a crime.

We conclude that the rule of strict construction of penal statutes and our holding in White compels us to hold appellant’s arrest invalid because the affidavit supporting the arrest warrant was based on an invalid charge. We so hold. Because the arrest was invalid, it cannot support a search incident to arrest nor evidence seized in plain view while making the arrest. Our holding mandates the reversal of the trial court’s denial of appellant’s motion to suppress.

The state argues that even though we find the arrest warrant to be invalid, suppression of all the evidence seized as a result of the arrest is not required because the officers acted on the arrest warrant with a good faith belief that it was valid. The state relies on United States v. Leon, 468 U.S. 897 (1984), in making this “good faith” argument. We have already extended the Leon good faith exception to cases involving arrest warrants. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), cert. denied, 489 U.S. 1100 (1989), cert. denied, 494 U.S. 1020, 110 S. Ct. 1327 (1990); Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). See also Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). However, in Leon, the United States Supreme Court stated that the good faith exception to the exclusionary rule should not be applied in four situations, one of those being when the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923.

Although the illustration of a facially deficient warrant given by the United States Supreme Court in Leon, supra, is a search warrant that fails to particularize the place to be searched or the things to be seized, we feel an arrest warrant, such as the one in this case, which fails to particularize or enumerate the crime for which the suspect was arrested is equally and similarly facially deficient. At the time appellant was arrested, Officers Turberville and Greenshaw were both assigned to the Drug Enforcement Agency Task Force. They were trained police officers who were experienced in drug related crimes and should have been familiar with the Controlled Substance Act, especially section 5-64-401. Based on these officers’ experience with the Drug Task Force, we cannot say they could have reasonably presumed this arrest warrant to be valid on its face as it stated appellant had committed an offense that did not exist under section 5-64-401. Thus, we hold the state is not entitled to the protection of the Leon good faith exception to the exclusionary rule and “[suppression therefore remains an appropriate remedy. . . .” Leon, 468 U.S. at 923. It was therefore error for the trial judge to deny appellant’s motion to suppress the evidence resulting from his arrest pursuant to this invalid arrest warrant.

Accordingly, we reverse and remand with directions that all the evidence seized from appellant’s arrest be suppressed and that appellant be allowed to withdraw his guilty plea pursuant to A.R.Cr.P. Rule 24.3(b).

Reversed and remanded.


text:
    Travis GAGE v. STATE of Arkansas
    CR 91-133
    819 S.W.2d 279
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Janet P. Gallman, for appellant.

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

Appellant, Travis Gage, appeals the denial of his motion to strike an illegal judgment. On March 19, 1990, appellant plead guilty to eight counts of burglary and eight counts of theft of property pursuant to the First Offenders Act. On March 20,1990, the trial court entered a judgment of appellant’s guilt and sentenced him concurrently to ten years on each count. Imposition of the sentence was suspended under certain conditions, including that appellant serve 104 days in the Washington County Jail. Appellant appeals contending the trial court erred in entering the judgment of guilt and in imposing an illegal sentence in excess of the maximum time allowed in jail. We reverse and remand.

Appellant argues the judgment of guilt is illegal on its face because it states that it is entered pursuant to the First Offenders Act, which specifically prohibits the entry of a judgment of guilt. The First Offenders Act provides:

Whenever an accused enters a plea of guilty. . . prior to an ajudication of guilt, the judge of the circuit or municipal court, ... in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court. [Emphasis supplied.]

Ark. Code Ann. § 16-93-303 (1987). Given that the judgment entered recites on its face that appellant is found guilty and sentenced under the First Offenders Act, appellee concedes that appellant was sentenced illegally. We conclude the trial court erred in entering this judgment and in denying appellant’s motion to correct an illegal judgment.

Appellant also argues that his sentence is illegal because, as a condition of his probation, the court confined appellant to the county jail for a term in excess of that allowed by the probation statute. Ark. Code Ann. § 5-4-304(c) (1987) limits the time of confinement as a condition of probation to ninety days. As a condition of his probation, appellant was required to serve 104 days, or fifty-two weekends, in the county jail. Appellee does not respond to this portion of appellant’s argument. We address it because appellant’s sentence is clearly in violation of section 5-4-304(c) and should be corrected on remand for resentencing.

The judgment entered against appellant is illegal on its face in that it enters a judgment of guilt in violation of section 16-93-303 and imposes an illegal sentence in violation of section 5-4-304(c). We reverse and remand with directions that the judgment of guilt be withdrawn consistent with the First Offenders Act and that appellant be resentenced in accordance with section 5-4-304(c).


author: Robert L. Brown, Justice. David Newbern, Justice.

text:
    Sarah Sue JARBOE v. SHELTER INSURANCE COMPANY d/b/a Shelter Mutual, Shelter General and Shelter Life
    91-67
    819 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      The Law Offices of Christoper O’Hara Carter, P.A., by: Christopher Carter, for appellant.

      Donald J. Adams, for appellee.
   Robert L. Brown, Justice.

The appellant, Sarah Sue Jarboe, appeals from a dismissal of her complaint against the appellee, Shelter Insurance Company. The issue before the circuit judge and on appeal concerns the obligation of Shelter under Ark. Code Ann. § 17-30-210(c)(l) (1987) to notify the State Plant Board that liability coverage on its insured, Lake County Pest Control, had lapsed. Shelter argues that the statute does not require notice when coverage stops due to a nonrenewal and further agrees that the duty in any event is not on the carrier to give notice. We disagree and reverse.

This is a case of first impression in Arkansas, and the facts are not in dispute. Shelter was the liability carrier for Lake County Pest Control, which sprayed Jarboe’s house on September 5,1986. Jarboe alleged faulty spraying and sued the company and its owner in 1987 for $100,000 for personal injury and damage to her property. Pest Control and its owner then took bankruptcy in 1989, and Jarboe filed this action against Shelter as the liability carrier for Pest Control, though the coverage on Pest Control had lapsed due to nonpayment. Shelter moved to dismiss the complaint, and the circuit judge granted the motion and stated that Shelter “was not required to notify the State Plant Board of non-renewal.”

Jarboe’s theory for relief is that, before Shelter could terminate or cancel its insurance on Pest Control, it had a duty under state law to notify the State Plant Board and Pest Control of the cancellation. Notification did not occur. Therefore, according to Jarboe, Shelter was still liable on the policy. Jarboe points specifically to relevant language in Ark. Code Ann. § 17-30-210 (1987):

(b) INSURANCE. In addition to the bond required in subsection (a)(1), before a license is issued or renewed, each applicant for a license in either the classification of termite and other structural pests or the classification of household pests and rodent control shall furnish the board a certificate of insurance written by an insurance company authorized to do business in this state, covering the public liability of the applicant for personal injuries for not less than twenty-five thousand dollars.($25,000) for any one (1) person, and fifty thousand dollars ($50,000) for any one (1) accident and not less than five thousand dollars ($5,000) property damage.
(c) (1) CANCELLATION. The bond and insurance shall not be cancelled or terminated until at least thirty (30) days after a notice of cancellation is received by the board.
(2) Upon failure of a licensee to maintain in full force and effect the bond and insurance required by this section, the license shall become void and shall not be reinstated until a satisfactory bond and insurance have been filed.

We first address the question of whether the statute, and specifically subparagraph (c)(1), applies to cases of lapse of coverage due to nonrenewal. The circuit judge hinged his decision on the fact that this was a case of nonrenewal and “there was no requirement placed upon Shelter to notify the State Board that there had not been a renewal of the insurance.” In making his decision, the circuit judge appeared to be finding that the nonrenewal of a policy by the insured is not a cancellation by either the insured or the carrier.

Insurance companies, however, do cancel or terminate policies when a nonrenewal, lapse, or failure to pay premiums occurs. The Arkansas Court of Appeals has recognized cancellations due to nonpayment of premiums or lapse in two opinions. See McDonald v. State Farm Mutual Insur. Co., 15 Ark. App. 346, 692 S.W.2d 274 (1985); Blount v. McCurdy, 267 Ark. 989, 593 S.W.2d 468 (Ark. App. 1980). Along the same lines, a distinguished treatise on insurance law treats “cancellation” and “termination” as synonymous terms and lists both cancellation for nonpayment of premiums and termination due to nonrenewal upon expiration of the coverage as circumstances leading to termination of coverage. Keaton and Widiss, Insurance Law § 5.11(a), p. 601 (1988). Thus, to find that a nonrenewal by an insured is not a cancellation by the carrier ignores what follows after nonrenewal. When a policy is not renewed, for whatever the reason, it is necessarily cancelled or terminated by the carrier.

We turn next to consider who has the burden to notify the State Plant Board of cancellation under Ark. Code Ann. § 17-30-210(c)(1). The section is silent on this point, and we refer to context and common sense for direction. See Hutton v. Arkansas Department of Human Services, 303 Ark. 512, 798 S.W.2d 418 (1990). Shelter argues that it is impractical to require it to notify the State Plant Board concerning all companies it is not insuring. But the issue before us is somewhat different. We are concerned only with those businesses where Shelter has cancelled coverage for some reason. The number of such notices could not be that great.

Shelter further argues that it is the duty of the licensee to present a certificate of insurance each year to the State Plant Board, and there is, therefore, no responsibility on the part of Shelter to give notice that coverage has stopped. But that argument flies in the face of the clear language of the statute requiring notice of cancellation or termination to be given.

The purpose of the notification requirement is to assure that qualified licensees with insurance protection are providing pest control services so that the public will be protected. We recently noted in a vehicular collision case involving a different cancellation statute that when an innocent third party is damaged due to a negligent insured and when cancellation of the insured’s insurance affects that third party, the carrier can only cancel the policy prospectively. See Ferrell v. Columbia Mut. Cas. Insur. Co., 306 Ark. 533, 816 S.W.2d 593 (1991). The case before us is not a collision case but the same public policy protecting innocent third parties is applicable. Here, Shelter cancelled the policy without notice to the Plant Board and hence failed to give notice to the public, and Jarboe has been adversely affected as a result.

Moreover, when a licensee fails to qualify for some reason such as for lapsed insurance coverage, it is unrealistic to interpret the statute to require the licensee to give notice that it no longer qualifies to do business. The danger with this interpretation is that businesses with lapsed polices will not give notice, and the public, as a result, will go unprotected. It is more reasonable to place the notice burden on the carrier since it is clearly in the carrier’s best interest to give notice. Otherwise, the carrier runs the risk of continuing to be liable under the policy. There is also the consideration that the carrier will know exactly when the failure to renew occurs and can promptly give notice to protect itself, whereas an insured may not be immediately aware of the lapse.

We are mindful that the Pest Control Services Act requires notice of a change of address or a change in the agents or operators to be made by the insured licensee. See Ark. Code Ann. § 17-30-212(b) (1987). Yet that is markedly different from this situation where the Code is silent and the incentive lies with the carrier to give the notice. We hold that the General Assembly intended to require that the carrier give notice of cancellation, and until that is done, the policy with regard to third policies remains in full force and effect.

Reversed and remanded.

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

David Newbern, Justice.

The statutory provision at issue in this case is, in relevant part, as follows:

17-30-210. Bond and insurance requirements.
(a) (1) Bond. Before a license is issued or renewed, the board shall be furnished an acceptable surety bond by each applicant for a licensee ....
sk * *
(b) Insurance. In addition to the bond required in subsection (a)(1), before a license is issued or renewed, each applicant for a license . . . shall furnish the board a certificate of insurance written by an insurance company authorized to do business in this state ....
(c) (1) Cancellation. The bond and insurance shall not be cancelled or terminated until at least thirty (30) days after notice of cancellation is received by the board.

The statute clearly places no obligation on anyone other than the applicant for a license to provide information to the Board.

Insurance companies have voluntarily notified the Plant Board 30 days prior to taking affirmative action to cancel the policies of licensees, but they have done nothing when the insurance has simply lapsed.

The statute provides no guidance as tt> who is to provide notice of the cessation of coverage, however denominated. Subsection (c)(2) provides:

Upon failure of a licensee to maintain in full force and effect the bond and insurance required by this section, the license shall become void and shall not be reinstated until a satisfactory bond and insurance have been filed.

As Ms. Jarboe correctly asserts, the basic rule of statutory construction, to which all other interpretive guides must yield, is that we give effect to the intent of the General Assembly. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991 ); Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990); In Re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). When the wording of a statute is clear and unambiguous, the statute will be given its plain meaning. Cash v. Arkansas Comm’n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989). When a statute is clear and unambigious, we do not search for legislative intent. The intention of the General Assembly must be gathered from the plain meaning of the language used. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).

Here, there is clear expression of intent to place some reporting obligations on licensees. The statute contains no language placing a reporting duty of any kind upon any other person or entity.

Subsection (c)(2), contains no provision for notification of the Plant Board of a licensee’s failure to maintain insurance. It provides only that upon the failure of the licensee to maintain insurance the license shall become void. The Court’s conclusion that by subsection (c)(1) the General Assembly intended to place the obligation on the insurer is plainly out of step with the statutory scheme.

The Court’s opinion will require each insurer to provide information to the Plant Board about each entity to which it may once, even in the distant past, have provided insurance. To require the insurer to notify the Plant Board of a cancellation or termination of a policy on an entity to which it had extended coverage at an earlier time without placing the same obligation with respect to current coverage affords no protection to the public and seems illogical if not absurd.

Ms. Jarboe argues that the intent of the licensure procedure is to protect the public and insure that proper standards are met. She challenges the logic of a scheme which then leaves reporting a violation of the rules in the hands of the violator. If the statutory scheme could be improved, that is a matter to be addressed by the General Assembly rather than this Court. She cites no support for her intent assertion, and none is found in the statute.

The argument that the practice of insurers to notify the Plant Board of cancellations effected by the insurers should be considered in determining the meaning of the statute would be attractive but for Ark. Code Ann. § 17-30-212 (1987):

Transferability — Change in licensee status.
(a) No license or registration shall be transferable.
(b) When there is a change in the status of a licensee, such as change of address, operator in charge, agents or solicitors, the licensee shall immediately notify the board of the changes.

The Court’s opinion concludes that the duty to notify the Board of a change in status is limited to those specifically stated, a change of address, operator in charge, agents or solicitors, and that this duty on the licensee, is “markely different from this situation where the Code is silent and the incentive lies with the carrier to give the notice.” The insurer would have an incentive to notify the Board of the termination and such a requirement would be upheld if it were required by the statute, but it is not. The provision that the insurance “shall not be cancelled or terminated until at least thirty days after a notice of cancellation is received by the board,” does not specifically place a duty on either party. It appears between two other subsections, (b) which imposes a duty on the licensee to furnish a certificate of insurance, and (c)(2) imposing a sanction on the licensee for failure to maintain the insurance in effect, that is, voiding the license.

Judicial restraint requires that we not rewrite a statute. The penalty being assessed upon the insurer by this Court for failure to comply with a nonexistent requirement is being manufactured from whole cloth. There is no provision forcing the insurance company to continue coverage, and we should not legislate such a penalty.

I respectfully dissent.

Holt, C.J., and Glaze, J., join in this dissent.


author: Robert L. Brown, Justice.

text:
    Lola Mae JONES v. Jane EARNEST, as Personal Representative of the Estate of Howard W. Jones, Deceased
    91-189
    819 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Haley, Claycomb, Roper & Anderson, by: Richard L. Roper, for appellant.

      Wells Law Offices, by: Bill G. Wells, for appellee.
   Robert L. Brown, Justice.

The sole issue in this appeal is whether a divorce or separation from bed and board constituted a final decree of divorce under Ark. Code Ann. § 9-12-317 (Supp. 1991) so as to dissolve automatically a tenancy by the entirety. We hold that the tenancy by the entirety was not automatically dissolved, and we reverse the chancery court.

The facts in this case were stipulated by the parties at trial. Howard W. Jones, who is now deceased, and his wife, Lola Mae Jones, who is the appellant, acquired some land in Bradley County by warranty deed dated October 16,1973. They held the property as tenants by the entirety. Much later, Lola Mae Jones, the appellant in this appeal, filed for divorce against her husband. She was denied an absolute divorce but was granted a divorce from bed and board by order dated November 9, 1988. The chancellor in the divorce from bed and board did not dissolve or in any way change the tenancy by the entirety in the Bradley County land in his decree.

Howard W. Jones died on February 19, 1990, and the personal representative of his estate, who is the decedent’s daughter and the appellee, claimed an interest in the Bradley County land. As a result of the claim, the appellant filed a petition seeking a declaratory judgment of her rights in the Bradley County land and asserted that she was sole owner of it by right of survivorship. The chancery court heard the petition on the stipulated facts and found that the divorce from bed and board automatically dissolved the tenancy by the entirety and caused the parties to hold the land as tenants in common. A declaratory judgment in favor of the estate was entered on March 21, 1991.

Our statutory law speaks directly to the issue of a dissolved tenancy by the entirety following a final decree of divorce:

When any chancery court in this state renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise. In the division and partition of the property, the parties shall be treated as tenants in common.

Ark. Code Ann. § 9-12-317(a) (Supp. 1991). The question then becomes whether a divorce from bed and board, which is also known as a divorce a mensa et thoro, constitutes a final decree of divorce under the statute. We hold that it does not.

Legal authorities agree that a divorce from bed and board is a limited divorce as compared to an absolute divorce, or divorce a vinculo matrimonii, which severs the bonds of matrimony. Two centuries ago, William Blackstone, in his Commentaries on the Laws of England, termed the divorce from matrimonial bonds as “total,” which was distinguished from separation from bed and board which he termed “partial.” 1 Bl. Comm. 428, 429 (1765). Only in cases of total divorce is the marriage “declared null, as having been absolutely unlawful ab initio P Id.

Robert A. Leflar in his treatise on conflicts goes further:

A decree for judicial separation, which used to be called a divorce from bed and board, is not really a divorce at all. It does not destroy the marital status, which continues existent. The decree regulates personal rights of the spouse as to cohabitation, support, and the like, in relation to the still-continuing marital status.

Leflar, American Conflicts Law § 230, p. 638 (4th Ed. 1986).

Black’s Law Dictionary is even more exact in its definition of the two categories of divorce:

Divorce a mensa et thoro. A divorce from table and bed, or from bed and board. A partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself.
Divorce a vinculo matrimonii. A divorce from the bond of marriage. A total absolute divorce of husband and wife, dissolving the marriage tie, and releasing the parties wholly from their matrimonial obligations.

Black’s Law Dictionary, p. 480 (6th Ed. 1990).

But it falls to George D. Thompson, in his distinguished treatise on real property, to discuss the ultimate issue in this case:

A divorce a mensa et thoro does not affect the unity of person and, hence, it does not turn a tenancy by the entireties into one in common. Since the estate by the entireties is dependent upon the oneness of the person of husband and wife, and not upon property rights, it follows that a decree of court cannot change the estate to a tenancy in common, unless it severs the marriage relation and makes the husband and wife two persons.

4 Thompson, Commentaries on the Modern Law of Real Property, § 1792, p. 132 (Repl. 1979).

We are mindful that there are certain attributes which are common to an absolute divorce and the limited divorce from bed and board. We have held that both categories of divorce, for example, rest upon the same grounds and may pertain to custody of children, maintenance, and alimony. See Myers v. Williams, 225 Ark. 290, 281 S.W.2d 944 (1955). Yet, in the Myers decision we made it abundantly clear that a divorce from bed and board did not affect the marriage ties; indeed, we quoted from Leflar on Conflicts to the effect that a divorce from bed and board was “not really a divorce at all” with respect to terminating the marital status. 225 Ark. at 292; 281 S.W.2d at 945; quoting Leflar, American Conflict Laws; see also Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982) (concurringopinion); Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

We review Ark. Code Ann. § 9-12-317(a) and specifically its language that a “final decree of divorce” is necessary to terminate an estate by the entirety in light of the above. In construing this statute, we consider the revered treatises cited in this opinion and our own case law which distinguishes the absolute divorce from bonds of matrimony and the limited divorce from bed and board in no uncertain terms. We have no doubt, in light of this history, that the Arkansas General Assembly intended “final decree of divorce” to refer to an absolute divorce from the bonds of matrimony for purposes of dissolving a tenancy by the entirety by operation of law.

We further note in this regard that had the General Assembly intended to include divorces from bed and board as final decrees of divorce under § 9-12-317 (a), it would have been a simple matter to refer to such limited divorces specifically as it did in the marital property statute. See Ark. Code Ann. § 91-2-315(b)(3) (Supp. 1991).

We hold, therefore, that the chancellor clearly erred in finding that the tenancy by the entirety was automatically dissolved by the divorce from bed and board and further erred in granting the estate any interest in the Bradley County property. Upon the death of Howard W. Jones, the appellant took full title to the property by operation of law. Accordingly, the estate has no interest in it as a tenant in common.

Reversed.


text:
    Dustin Heath VICKERS v. STATE of Arkansas
    91-175
    819 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Green & Henry, by: J. W. Green, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises from the circuit court’s denial of appellant Dustin Heath Vickers’ motion to transfer his first degree murder case to juvenile court. At the time of the murder Vickers was seventeen years old. We find no error in the circuit court’s decision, and we affirm.

There is no disagreement over the facts in this case as they relate to this appeal. The murder occurred on October 6, 1990, and the charge against Vickers was filed in Pulaski County Circuit Court on January 23, 1991. On May 9,1991, Vickers filed a motion to transfer the case to juvenile court pursuant to Ark. Code Ann. § 9-27-318 (Supp. 1991). The circuit court denied the motion on June 18, 1991, following a hearing, and on July 1,1991, Vickers filed a petition for a writ of prohibition seeking to halt the trial of the charge in circuit court. We denied the petition, but at the same time we stayed the trial pending this appeal.

We have had several opportunities in recent months to consider juvenile transfer cases, and our holdings are now clear that the standard for review is whether the circuit court’s denial of a transfer was clearly erroneous. See Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991); Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402A, 805 S.W.2d 80 (1991).

In making the transfer decision, the circuit court must consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (1987). If the court finds that a juvenile should be tried as an adult, it must do so by clear and convincing evidence.

We have held in this regard that a criminal information is sufficient evidence to establish that the offense charged is of a serious and violent nature. Walker v. State, supra. We have further held that the circuit court is not required to give equal weight to each of the above-mentioned statutory criteria. Penningtons. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, supra. Nor is the court required to make specific findings of fact in a juvenile transfer case. Walker v. State, supra; Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

In this case, the circuit court not only reviewed the first degree murder information, but also heard the testimony of Pulaski County Deputy Sheriff Beadle, who testified that the victim had been shot in the left eye and in the back of the head, where a contact gunshot wound was visible. The court also heard testimony that Vickers did not have a prior criminal record; that he was both an average student and an average teenager; that he had attended church; and that he might be susceptible to rehabilitation.

In considering this testimony, the circuit court alluded to the seriousness and severity of the offense charged and to the manner in which it was carried out — the shot to the eye and the contact wound to the back of the head. He then denied the motion. This is sufficient to support a finding of clear and convincing evidence under Ark. Code Ann. § 9-27-318(e) (Supp. 1991). See Walker v. State, supra. We affirm the circuit court’s ruling.

Affirmed.


text:
    Emma Gwendolyn WRIGHT, et al. v. UNION NATIONAL BANK of Arkansas, Little Rock, Arkansas, Executor
    90-335
    819 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered November 18, 1991

      Lovett Law Firm, by: Bryan P. Boyce, for appellant.

      Davidson, Horne, and Hollingsworth, by: Garland W. Binns, Jr., and Chet Roberts, for appellee.
   Robert L. Brown, Justice.

This case concerns the assets of the decedent, Hiawatha Daniel, and specifically the claims of the appellant, Emma Gwendolyn Wright, against those assets. Hi Daniel and Gwen Wright were sisters; both were the daughters of Julia Daniel. The various claims of Gwen Wright were heard during a two-day trial, and the chancellor decided all claims in favor of the estate. We affirm the chancellor’s judgment.

Gwen Wright also appeals on the issue of the estate’s liability for estate and inheritance taxes, and she is joined in this appeal by her sons, Daniel Wright and Preston Wright. Union National Bank filed a notice of cross appeal against the sons, but as cross appellant, the Bank has failed to file a brief or abstract. We, therefore, dismiss the cross appeal pursuant to Rule 10 of our Supreme Court Rules.

In 1975 Julia Daniel suffered a stroke and was virtually incapacitated until her death in 1982. After her stroke, Hi Daniel, who was not married, moved in with her mother and cared for her. Also, following the stroke, Hi Daniel and Gwen Wright established several joint banking accounts with right of survivorship. Upon her death, Julia Daniel left all of her property to Hi Daniel with the exception of $ 10 which she bequeathed to Gwen Wright. Funds from Julia Daniel’s estate were deposited into the joint banking accounts, and the interest from the accounts was used to purchase bonds and treasury notes. Income from these investments was then paid into a household account for Hi Daniel’s personal expenses. Hi Daniel made all of the deposits and withdrawals from these joint accounts.

The sisters also kept a safety deposit box in jointy tenancy in which they placed registered and bearer bonds with interest coupons as well as other securities and items of personal property. On an annual basis the sisters would meet and clip the interest coupons from the bonds and prepare the deposit slips. Subsequently, Hi Daniel would deposit the interest into her household account.

Hi Daniel died on September 6, 1988, and left assets consisting of registered bonds, treasury notes, other securities, and jewelry. The joint bank accounts totalling over $200,000 passed to Gwen Wright by right of survivorship and are not at issue in this appeal. Prior to her death, the sisters had kept bearer bonds valued at approximately $238,000 in their safety deposit box. The interest coupons all went to . Hi Daniel during her lifetime. She had in her possession at time of death the coupons for all of calendar year 1988. Gwen Wright argues, however, that early in 198 8, Hi Daniel gave the bearer bonds to her. The validity of that gift is one of the issues of appeal.

After Hi Daniel’s death, Preston Wright removed the registered bonds which were in Gwen Wright’s name from the joint safety deposit box and testified that no bearer bonds were in the box. Because Gwen Wright had the bearer bonds and the registered bonds in her possession, the appellee executor filed suit to determine title to that property. Gwen Wright counterclaimed that the bearer bonds had been given to her by the decedent and further that Hi Daniel had held the other property, including registered bonds, treasury notes, jewelry, and other securities, in constructive trust for Gwen Wright’s benefit. The executor also asked the chancellor to assess the proportionate share of each distributee for estate and gift taxes. The chancellor decided all issues in favor of the executor.

I. BEARER BONDS

For her first point for reversal, Gwen Wright argues that the chancellor erred in finding that Hi Daniel did not consummate a gift to her of the bearer bonds prior to her death in 1988. Specifically, Wright contends that Daniel made a valid inter vivos gift when she delivered the bonds to her early inl988and retained only the interest coupons for 1988.

Our law is clear that in order for an inter vivos gift to transpire it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. See Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971).

In Phipps a gift of bonds was also in dispute. The alleged donor exercised control over the bonds by accepting interest payments after placing the bonds in custody for the benefit of the alleged donee. We held that drawing interest payments exhibited failure to release all future dominion and control over the property.

Here, Wright testified that actual delivery occurred. She also testified that Daniel told her to keep the bonds and said, “They are yours; hang on to them.” Nevertheless, Daniel continued to receive interest on the bonds until her death and even projected future income from the bonds in her journal. She also continued to reflect the bonds in her inventory of municipal bonds after the purported gift. There is, too, Wright’s own testimony that Daniel may well have brought the bonds to her because she was on crutches at the time and her possession of the bonds would enable them to meet at her home and clip the interest coupons.

As in Phipps v. Wilson, the facts here do not evidence a clear intent on the part of Daniel to give up all future dominion and control over the bonds. We affirm the chancellor’s decision.

II. CONSTRUCTIVE TRUST

Wright next argues that an oral agreement existed between her sister and herself to the effect that virtually all of Daniel’s estate, including the bearer and registered bonds, and other treasury notes and securities registered in Daniel’s name would go to Wright or to her children upon Daniel’s death. A constructive trust impressed on the estate’s assets for the benefit of Wright was, therefore, warranted, according to Wright. To justify that constructive trust, Wright points to a confidential relationship which she maintains existed between the two sisters in later years.

A constructive trust is a creature of equity designed to prevent unjust enrichment, and it is implied from the circumstances of the case when the beneficial interest should not go with legal title to the property. See Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989). Simply because parties are related or live in the same household does not alone establish a confidential relationship. See Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). However, although a family relationship by itself is not sufficient to establish a constructive trust, in the absence of estrangement or other circumstances contradicting confidentiality, a confidential relationship may be established by showing a close relationship between a mother and father and a brother and sister. See Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). Fraud or a confidential relationship is necessary to prove a constructive trust, and it must be proven by clear, cogent, and convincing evidence. See Bottenfield v. Wood and Miller, 264 Ark. 505, 573 S.W.2d 307 (1978). The burden of proving it is on the proponent of the constructive trust. See Walker v. Waller, 15 Ark. App. 336, 693 S.W.2d 61 (1985).

The chancellor found that Wright had not met her burden of proof, and we agree. There was ample testimony presented at trial to evidence that some, if not considerable, rancor had existed between the two women at one time and perhaps even continued up to Daniel’s death. Wright was admittedly angered by her mother’s leaving her estate, to Daniel and mentioning her only in the context of a $10 bequest. There was also testimony about Wright’s suspicions that Daniel was diverting her mother’s funds for her benefit during her mother’s lifetime. Though varying testimony was admitted suggesting that Wright had entered into an agreement with Daniel regarding the disposition of Daniel’s estate at various times, the testimony was unclear. At one point it was contradicted by Wright, who stated that there was no agreement that Wright would forego a lawsuit against Daniel regarding their mother’s estate in exchange for a promise that Daniel would leaver her estate to Wright and her children.

It is axiomatic that the trier of fact, in this case the chancellor, determines the credibility of the witnesses. See McKiever v. McKiever, 305 Ark. 321, 808 S.W.2d 328 (1991). In the case before us the chancellor obviously believed the executor’s witnesses or, alternatively, did not believe the appellant or her witnesses. We cannot say that the decision was in error.

III. SAFETY DEPOSIT BOX

Wright also contends that part of the contents of the safety deposit box should have passed to her by right of survivor-ship, because the box was held in the names of both sisters and Wright’s daughter with surviroship rights. At issue here are various securities, including registered bonds in Daniel’s name, and jewelry found in the box. We have previously held that mere survivorship rights in the box itself is not sufficient to pass title to the contents absent an affirmative showing in writing to evidence that fact. See Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986); see also Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991).

The appellants contest a retroactive application of Davison since the box was acquired in 1982 at the time of Julia Daniel’s death. Hi Daniels, death, however, occurred in 1988, which is the time when either survivorship rights would automatically vest or Wright’s cause of action would accrue. Since Davison was decided before this time, the appellant’s argument is without merit.

IV. ESTATE TAXES

The appellants, who are joined by appellants Preston Wright and Daniel Wright on this one issue, argue that the estate’s residue should be used to pay estate and gift taxes and that pro rata shares from the distribution should not be claimed under Ark. Code Ann. § 26-59-115 (1987). The precise language in the will reads:

I direct that all just and legal claims against my estate, including federal and state estate and inheritance taxes, be paid as promptly as practicable after my death.

The chancellor found that a clear direction that the taxes be paid from the residue of the estate and not proportionately by the distributees was lacking. We agree. The will only directs that the taxes be paid promptly and does not direct that the taxes be paid from the estate’s residue. To infer that the testatrix intended that the taxes be paid from the residue of the estate and not be spread proportionately among the distributees would be speculation on our part. The intent to shift the burden of taxation must clearly appear in the will, otherwise, state law will control. See, e.g., Ferrone v. Soffes, 558 So.2d 146 (Fla. App. 3 Dist. 1990). Here § 26-59-115 requires proportionate allocation among the distributees in the absence of a clear direction from the testatrix that the taxes be paid from the estate’s residue. We affirm the chancellor on this point.

V. BIAS

For her last argument, Wright advances a bias theory on the basis that the chancellor considered testimony from a separate trial relating to Wright’s sons in deciding Wright’s case. There is no evidence to support this claim, and the chancellor stated that the testimony in the sons’ real estate case was separate from Wright’s case. We hold that this claim is meritless.

Affirmed.