author: David Newbern, Justice.

text:
    COMMISSION ON JUDICIAL DISCIPLINE AND DISABILITY and James Badami, Its Director v. Tom DIGBY, Circuit Judge
    90-143
    792 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Steve Clark, Att’y Gen., by: Thomas S. Gay, Deputy Att’y Gen., for appellant.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for Gannett River States Publishing Company.
   David Newbern, Justice.

A writ of prohibition is sought to prevent the Pulaski County Circuit Court from entertaining a declaratory judgment action. The action was filed by Gannett River States Publishing Company (Gannett) against the Judicial Discipline and Disability Commission and James Badami, director of the commission. The action was for a declaratory judgment to the effect that the commission is required to release to the public information from its files compiled prior to the May 14, 1990, order of this court which amended the commission’s rules to provide guidance with respect to release of information. Because we are moving in an uncharted area of Arkansas law, we declined to decide the prohibition issue on the basis of the argument submitted with the motion. We asked for further briefing on whether the commission could be sued and, if so, the proper procedure.

The primary issue we decide today is whether the circuit court has authority to entertain the declaratory judgment action against the commission. Our holding is that the circuit court should decide the question whether the records sought by Gannett are to be released. Should the question come to this court, it will be in a future appeal from the circuit court’s decision and not by an original action or petition for mandamus filed in this court.

The commission argues the circuit court may not entertain the declaratory judgment action because it is an action against the state which is immune from suit. It is also argued that, because the commission is but an arm of this court, we have the power to supervise the commission and, therefore, the circuit court lacks jurisdiction. We reject both arguments and deny the writ except to the extent that the declaratory judgment action seeks costs and expenses.

1. Sovereign immunity

There is no question that the commission is an agency of the state. Generally, state agencies are immune from suit in the state’s courts. Ark. Const, art. 5, § 20; Fireman’s Ins. Co. v. Arkansas State Claims Comm., 301 Ark. 451, 784 S.W.2d 771 (1990). There are, however, exceptions to that rule. If the state agency is acting illegally or if a state officer refuses to do a purely ministerial act required by statute, an action against the agency or officer is not prohibited. Federal Compress & Warehouse Co. v. Call, 221 Ark. 537, 254 S.W.2d 319 (1953). See Hickenbottom v. McCain, 207 Ark. 485, 181 S.W.2d 226 (1944). These cases indicate one consideration to be that if the state would be under no obligation, meaning financial obligation, even if the plaintiff prevails, the action is not one against the state. In the circuit court, Gannett sought costs and expenses. In its petition before us, Gannett has waived that monetary claim. Gannett has also conceded that Mr. Badami is not a necessary defendant in the case, and so Mr. Badami’s clear statutory immunity provided by Ark. Code Ann. §16-10-406 (Supp. 1989) will not pose a problem in the circuit court.

We hold that, to the extent this is a suit against the commission, seeking only a declaration whether the commission, acting through its director, has acted in violation of Rule 7 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, promulgated by per curiam order of May 14,1990, it is not barred by the sovereign immunity provision of Ark. Const, art. 5, § 20.

2. Proper procedure

In support of its contention that it is only an arm of this court, and thus subject only to our supervisory powers, the commission cites Ark. Const, art. 7, § 4:

The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.

Power is thus given to the supreme court to supervise the lower courts, but nothing is said about supervision of an agency such as the commission. Amendment 66 which created the commission provided that it was established “ [u] nder the judicial power of the [s]tate,” and empowered the supreme court to prescribe the procedural rules, but no general authority was conferred on this court to supervise the commission. Subsection (c) of the amendment provided appellate jurisdiction in the supreme court of the commission’s decisions, and it provided the supreme court may take action on the basis of recommendations by the commission, but no general supervisory power was given to the supreme court. By Rule 12.F. of the commission’s rules of procedure, this court has provided that it may bring before it any action or failure to act on the part of the commission with respect to a case before the commission. That provision, like the appeal provisions, has to do with reviewing the commission’s actions in deciding the cases before it, and it is not indicative of a general supervisory power in the supreme court.

In support of its argument that the commission is an arm of the supreme court created to assist the supreme court in its supervision of the lower courts the commission cites Sexton v. Supreme Court Committee on Professional Conduct, 297 Ark. 154A, 760 S.W.2d 69 (1988), and Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 117, 628 S.W.2d 552 (1982). Those cases dealt with the Arkansas Supreme Court Committee on Professional Conduct which this court created to assist it in exercising its power to regulate the practice of law and the professional conduct of attorneys pursuant to Ark. Const, amend. 28. They present no authority for dealing with a commission created by the constitution.

The commission also cites cases from other jurisdictions in which it has been said that a judicial discipline commission is an arm of the supreme court. That was an obiter dictum in In re Inquiry Concerning a Judge, Herbert W. Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978), but the opinion in that case revealed that the North Carolina Constitution required the legislature of that state to create a procedure for censure and removal of judges. The commission was created by the legislature of that state and not directly by constitutional amendment. Nor do we regard the court’s statement that the commission is an arm of the court as necessarily meaning that the North Carolina Supreme Court had exclusive powers with respect to the commission. That was not the holding of the case.

In McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666 (Mass. 1979), a judge sought injunction in a trial court and, at the same time, in the Supreme Judicial Court of Massachusetts against the commission, alleging improprieties in a complaint filed against him with the commission. The trial court action was withdrawn, and the supreme judicial court dealt with the questions presented as an interlocutory appeal with the admonition that it would disfavor doing so in future cases. The opinion pointed out that the power of the commission was entirely statutory. The court dealt with a matter it might eventually have to decide on review of a case before the commission and did not purport to supervise administrative aspects of the commission.

A Wisconsin case cited by the commission does not apply here because the court was dealing with a commission created by the court rather than by constitutional amendment. State v. Dancey, 238 N.W.2d 81 (Wisc. 1976).

In Snyder v. Judicial Inquiry and Review Board, 471 A.2d 1287 (Penn. Cmwlth. 1984), also cited by the commission, a member of the commonwealth court, acting as chancellor, refused to enjoin proceedings before the board. He held that to do so would interfere with the exclusive authority of the Pennsylvania Supreme Court which had supervisory power over the board to the exclusion of other courts. As far as we know, the decision was not appealed, and we have no idea how the case was handled upon transfer to the Pennsylvania Supreme Court.

Perhaps the strongest language supporting the commission’s argument comes from the Supreme Court of Iowa. In Welty v. McMahon, 316 N.W.2d 836 (Ia. 1982), the issue was whether the supreme court could entertain a declaratory judgment petition concerning the composition of a judicial nominating commission. The court construed its constitutionally granted supervisory power over the other Iowa courts as being sufficient to permit it to act with respect to the commission. The language of the opinion is, to say the least, expansive. Quoting from an earlier opinion the court wrote:

The superintending control is hampered by no specific rules or means of its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur it will be found able to cope with them. [316 N.W.2d at 838]

Unlike the Iowa court, we are not inclined to act beyond the limits of the authority we are given in art. 7 and amend. 66 of the Arkansas Constitution.

The commission recognizes we have held our original jurisdiction to be limited to that granted by the constitution and that our authority cannot be enlarged by the general assembly. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972). Absent a provision for exclusive jurisdiction of a particular matter in this or some other court, jurisdiction to hear civil or criminal cases lies in the circuit court. Ark. Const, art 7, § 11.

The Arkansas Commission on Judicial Discipline and Disability is a constitutional entity separate from this court. Independent constitutional agencies, such as the State Highway Commission (Ark. Const, amend. 42) and the Arkansas State Game and Fish Commission (Ark. Const, amend. 35) have historically been subjected to the authority of the trial courts of this state when there have been allegations of illegal action not barred by sovereign immunity. Where the remedy sought was exclusively cognizable in equity, such as an injunction, the chancery courts have exercised jurisdiction. See, e.g., Magruder v. Arkansas Game & Fish Comm., 293 Ark. 39, 732 S.W.2d 849 (1987). Otherwise, the circuit courts have acted. See, e.g., Arkansas State Highway Comm. v. Woods, 264 Ark. 425, 572 S.W.2d 425 (1978).

The petition for a writ of prohibition is granted with respect to any claims against the commission for costs or expenses and with respect to any claim against James Badami individually. Otherwise, the petition for a writ of prohibition is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Loyd Ray WHITE v. STATE of Arkansas
    CR 90-15
    792 S.W.2d 867
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Steve R. Davis, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for appellee.
   David Newbern, Justice.

Loyd Ray White appeals his conviction of rape and kidnapping for which he was sentenced, as an habitual offender, to life imprisonment and 40 years imprisonment to run consecutively. We disagree with his contention that the evidence was insufficient to support the conviction and with his argument that the victim should not have been allowed to state his “conclusion” that White was the person who raped him. The conviction is affirmed.

The victim, aged 14 at the time the offense occurred, lived with his parents near the Youth Services Center at Alexander. He testified he was fishing alone at a pond on the center’s grounds when a person he identified as White rode up to him four times on a “four-wheeler” vehicle. White spoke to the victim and, among other conversational items, told him he was waiting in the area for a girl with whom he, White, intended to engage in sexual intercourse.

As the victim was leaving the pond area for home, he was accosted by a person with a gun dressed from head to toe in winter clothing, including a ski mask and colored glasses. The victim was asked for his money, of which he had none, and then was taken to a nearby shed where, at gunpoint, he was forced to engage in anal intercourse and fellatio.

The victim first identified White at a police photo-lineup as the person who had approached him on the four-wheeler. At the trial the victim testified that he could not identify White by sight as the person who had raped him because the victim could not see the face of his attacker but that he was positive it was White because the person who raped him had used the same scatological language in the same way, and the voice was the same. The victim also mentioned that the rapist asked him repeatedly if he knew the person on the four-wheeler or could identify him.

White admitted riding his four-wheeler on the grounds of the youth center on the afternoon in question but testified he was only there between 4:00 and 4:35 p.m. The victim testified it was later in the afternoon, 5:35 or 5:45 at the latest that he arrived at the pond and after which he was repeatedly approached by White. Other witnesses testified to having seen White riding on the grounds between 5:00 and 6:00 p.m.

White contends the victim’s identification testimony was equivocal and thus not sufficient, especially when combined with the lack of forensic evidence against him. He also contends that, because the victim couched his identification in terms of it being the victim’s “conclusion” that his rapist was White, the evidence should not have been admitted.

1. Sufficiency of the evidence

We view the evidence most favorably to the appellee, and the identification testimony of a rape victim is sufficient to support a conviction. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). Scientific evidence is not required. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987).

At some points in his testimony the victim said he did not know who the man in the mask was, but he had reached the conclusion, based on the scatological language used by the masked man that he was the same person as the one on the four-wheeler; the man who raped him had the “same kind of mind” as the man on the four-wheeler.

White argues the victim’s voice identification was equivocal and thus not sufficient to support the conviction, but we note this portion of the victim’s testimony: “It is the guy on the four-wheeler, Loyd, Loyd Ray White. I’m referring to the Defendant. That’s the man who held me at gunpoint and raped me, that’s what I think. I do not really have any doubts about that.”

We regard the voice identification as sufficient. Any inconsistencies there may have been in the victim’s testimony were for the jury to resolve. Cope v. State, supra.

2. Admissibility

At one point in his testimony on direct examination, the victim was asked if, while examining the area where the rape occurred with a police officer, he had seen any tracks. He responded that he had showed the officer where the four-wheeler tracks were but that there were no footprints. He concluded: “Just stuff that this builds up and comes back to the guy on the four-wheeler.” Defense counsel objected that the answer was a conclusion and was not responsive to the question. The objection was sustained.

Shortly thereafter, the victim was asked why he thought the masked man who raped him was the same person as White, whom he had recognized as the person on the vehicle. His response was: “He said it enough times [apparently referring to the scatological terminology], I know how it sounded and the way that guy with the mask said it, it sounded just like him. It sounded familiar.” The next question was, “When did you come to that conclusion?” The victim answered, “When he was in behind me.” Defense counsel objected on the ground that the witness was “stating conclusions.” The objection was overruled.

The argument here is that the court erred in allowing the victim to state his opinion. The argument equates “conclusion” with “opinion,” and the only authority cited is Ark. R. Evid. 701 which permits a non-expert witness to testify as to an opinion if it is rationally based on his perception and helpful to a “clear understanding of his testimony or the determination of a fact in issue.”

We need not quibble about whether a conclusion and an opinion are the same, for even if we characterized the testimony as the expression of an opinion we would have to say it was rationally based on the victim’s perception and helpful to determination of a fact in issue. We do not reverse a trial court’s evidentiary rulings unless a clear abuse of discretion is shown. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). No abuse has been shown.

3. Rule 11(f)

There is no indication in the brief filed for White that all objections decided adversely to him have been abstracted. There is no indication in the brief filed for the state that the attorney general has made certain that all objections have been abstracted or has briefed other points which appear to have merit in addition to those argued by White. Both parties have thus failed to comply with Rule 11 (f) of the Rules of the Arkansas Supreme Court and Court of Appeals applicable to cases in which the sentence is to life imprisonment.

Rather than incur the delay which would be involved if we asked for rebriefing, we have thoroughly examined the record and assured ourselves that no meritorious argument could be made with respect to the objections made on White’s behalf in which the rulings were adverse to him and that there were no trial errors prejudicial to White requiring reversal.

Affirmed.


author: Tom Glaze, Justice.

text:
    Irene Annette WALKER v. Richard C. WALKER; Teachers Insurance & Annuity Association
    90-52
    791 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990
    [Rehearing denied September 10, 1990.]

      Young & Finley, by: James K. Young, for appellant.

      Rose Law Firm, A Professional Association, by: Herbert C. Rule III and Stephen N. Joiner, for appellees.

      Newbem, J., not participating.

   Tom Glaze, Justice.

Appellant received a judgment of $71,055.00 against her former husband, Richard Walker, in a divorce action. Due to Mr. Walker’s employment at a state-supported school, he was eligible to participate in the Teachers Insurance & Annuity Association (TIAA) and College Retirement Equities Fund (CREF) alternate retirement program. Under this program, Mr. Walker obtained deferred annuity contracts issued to him. Walker’s TIAA basic annuity contract and CREF basic annuity contract had no cash surrender value and were to begin payment on a set starting date, when the annuitant reached the age of 65, unless changed by the annuitant. While the record is silent as to Mr. Walker’s age, he was not receiving any benefits from the annuity contracts at the time of the garnishment. His supplemental retirement contracts from TIAA and CREF, however, provided that at any time before the annuity starting date, the annuitant may surrender the supplemented contracts for a cash payment equal to the accumulation as of that date.

In an attempt to satisfy her judgment against her former husband, the appellant served a writ of garnishment on TIAA. TIAA, the garnishee, filed a motion to quash the garnishment, alleging among other things that the annuity contracts did not represent goods, chattels or monies belonging to Richard Walker. The appellee-debtor, Mr. Walker, never objected to nor participated in the garnishment proceedings. The trial court granted TIAA’s motion to quash the garnishment. Appellant appeals from this ruling raising four points of error. We affirm.

In her first point of error, the appellant argues that the TIAA, as garnishee, has no standing to attack the writ of garnishment. In attacking the garnishment, TIAA presents the following arguments: 1) the debtor (Mr. Walker) was not properly served; 2) the annuity contracts are exempt from garnishment by Ark. Code Ann. §§ 23-79-134(a) and 24-7-715(a) (1987); and 3) TIAA has no funds belonging to Mr. Walker at the time of the garnishment. Clearly in this situation, TIAA, as garnishee, has no standing to argue lack of notice to the debtor. In Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988), we held that, where the debtor did not raise any question about notice or unconstitutionality, the garnishee has no standing to assert the debtor’s right to due process. However, just as clearly, TIAA has the right as garnishee to argue that it has no funds belonging to Walker at the time of the garnishment. That leaves the main question of whether TIAA has standing to argue that the annuity contracts are exempt from garnishment under statutory law. We hold that it does.

Section 23-79-134(a) of Ark. Code Ann. in pertinent part provides the following:

Benefits, rights, privileges, and options under any annuity or variable annuity contract, which are due or prospectively due the annuitant, shall not be subject to execution, attachment, or garnishment, nor shall the annuitant be compelled to exercise the rights, powers, or options under the contract, nor shall creditors be allowed to interfere with or terminate the contract . . . :

Likewise, Ark. Code Ann. § 24-7-715(a) states the following:

The right of a person to an annuity, to the return of accumulated contributions, the annuity itself, any annuity option, and any other right accrued or accruing under the provision of this act, and all moneys belonging to the system, shall not be subject to execution, garnishment, attachment, . . . and shall be unassignable, except as is specifically provided in this act; ...

In her argument, the appellant perceives these statutory provisions as being personal property exemptions as provided for in Ark. Const, art. 9, § 1, and thus they must be raised by the debtor in order to protect his property from garnishment. We do not agree. These provisions are not personal property exemptions that can only be asserted and scheduled by the debtor. Instead, these prohibitions against garnishment can be raised as an affirmative defense by garnishees, such as TIAA. Clearly under these statutory provisions, Mr. Walker’s deferred benefits from his annuity contracts were meant to be exempted from garnishment. If we were to prevent TIAA the right to argue these provisions as an affirmative defense, it could face liability for paying out money that is clearly exempted. In addition, by the very nature of an annuity contract, TIAA has an interest in protecting the annuity fund from having to pay out an annuitant’s money prematurely.

Since we hold that TIAA had standing to raise Ark. Code Ann. §§ 23-79-134(a) and 24-7-715(a) as an affirmative defense and that those provisions clearly exempt Mr. Walker’s annuity contracts from garnishment, we need only to further address the appellant’s argument that these provisions are unconstitutional. The appellant argues that these statutory prohibitions against garnishment are unconstitutional because they increase the constitutional property exemption limitation provided in Ark. Const, art. 9, § 1. We disagree.

As we already discussed, the provisions of § 23-79-134(a) and § 24-7-715(a) are not absolute personal exemptions like those contemplated by sections 1 and 2 of article 9 of the Arkansas Constitution. Cf. W. B. Worthen Co. v. Thomas, 188 Ark. 249, 65 S.W.2d 917 (1933), reversed on other grounds; Acree v. Whitley, 136 Ark. 149, 206 S.W. 137 (1918). Instead, these statutes cover annuity contracts generally. As pointed out by TIAA, the premiums remitted on Mr. Walker’s annuities are assets of TIAA-CREF, not assets of Walker, and TIAA-CREF has certain obligations to perform according to the contract terms of the annuities. In enacting §§ 23-79-134(a) and 24-7-715(a), the General Assembly merely encouraged these types of annuity contractual relationships by protecting such retirement funds from the claims of creditors. If, however, Mr. Walker’s total benefits under the annuities were due and payable and exceeded the exemptions granted to him by law, e.g. Ark. Const, art. 9, § 2, a court could order the annuitant to pay to a judgment creditor such portion of the excess benefits as the court found just and proper. See § 23-79-134(a)(2). In sum, we reject appellant’s argument that these statutory provisions conflict with the personal exemptions provisions provided under Ark. Const, art. 9, § 1.

For the reasons stated above, we affirm.

Newbern, J., not participating.


author: Dale Price, Justice.

text:
    ARKANSAS HEALTH SERVICES COMMISSION, et al. v. AREA AGENCY ON AGING OF WESTERN ARKANSAS
    90-37
    792 S.W.2d 321
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellant.

      Warner and Smith, by: P.K. Holmes III, for appellee.
   Dale Price, Justice.

This case concerns an application by the appellee, Area Agency on Aging (AAA), for permits to conduct home health care services in five western Arkansas counties. The application was made to the appellant Arkansas Health Services Agency (Agency). The Agency recommended to the Arkansas Health Services Commission (Commission) that the application be denied. The trial court ruled that, because the Agency failed to submit its recommendation to the Commission within 90 days, as required by Ark. Code Ann. § 20-8-104(d) (Supp. 1989), the application must be automatically approved. The Agency and the Commission appeal from that ruling. We find no error and affirm.

The parties agree that AAA’s application was formally received by the Agency on July 30,1987. Shortly thereafter, the Agency suggested that AAA agree to a delay in the consideration of its application to allow the Commission to review, and possibly revise, its standards used in reviewing these types of applications. On October 9,1987,71 days after the application was received, a representative of AAA agreed by letter to a postponement of any decision on its application. The pertinent part of the letter reads as follows:

I respectfully request that your office postpone making a decision on our applications for certificate of need . . . until the newly formed Health Services Commission has an opportunity to review and amend the determination of need standards.

The Commission met on February 17,1988, and decided not to revise its standards. Eighty-three days later, on May 11,1988, the Agency notified AAA that it would recommend denial of its application. However, as the appellants acknowledge, this recommendation was not formally submitted to the Commission until May 18, 1988, which was the 91st day after the Commission’s decision not to revise its standards.

Once the Commission denied AAA’s application, AAA pursued an administrative appeal before the Commission. A hearing was held, and the primary topic of discussion was whether there in fact existed a need for AAA’s services in western Arkansas. At the end of the hearing, AAA, for the first time, broached the subject of the 90 day period. No decision was sought from the Commission on the effect of the Agency’s failure to submit a recommendation within 90 days. Instead, AAA indicated only that the issue would be pursued at some future time; it merely requested that it be allowed to determine for the record the precise date from which the 90 days would be counted. The Commission made no ruling on this issue, but did reaffirm its decision denying the appellee’s application.

Appeal was then taken by AAA to the Sebastian County Circuit Court. Three grounds for relief were alleged in the complaint: (1) the Commission’s action was not supported by substantial evidence, (2) the action was arbitrary and capricious, and (3) the action violated Arkansas law in that the Agency’s recommendation was not submitted to the Commission within 90 days of receipt of AAA’s application.

The court ruled that the appellee’s application must be approved because the Agency failed to follow the 90-day rule set out in Ark. Code Ann. § 20-8-104(d) (Supp. 1989):

The Health Services Agency shall review all applications for permits of approval and submit their recommendation for action to the commission within ninety (90) days of receipt of the application for permit of approval, without which the application shall be deemed approved.

The court reasoned that since 71 days had passed before AAA agreed to a postponement on October 9, the Agency had only 19 days after the Commission’s February 17 decision in which to make its recommendation. Since the Agency did not act within that time period, the court ruled that AAA’s application must be automatically approved. The Agency and Commission appeal from that ruling.

It is claimed that AAA was barred from raising the 90-day issue in the circuit court because it did not first present the issue to the Commission for determination. Indeed, we have recognized that an issue must be raised at the administrative level before it can be considered on appeal to the circuit court. Alcoholic Beverage Control Division v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985); Arkansas Cemetery Bd. v. Memorial Properties, Inc., 271 Ark. 172, 616 S.W.2d 713 (1981). However, the appellants did not object below to the circuit court’s consideration of this issue. This argument is being made by the appellants for the first time on appeal and therefore we do not consider it. Reed v. Alcoholic Beverage Control Division, 295 Ark. 9, 746 S.W.2d 368 (1988).

By the terms of the waiver, the Agency had 90 days from the date of the Commission’s decision in which to submit its recommendation. Since the recommendation was not submitted until the 91st day after the decision, the trial court was correct in ordering the automatic approval of AAA’s application. Although the trial court did not employ this line of reasoning, we will affirm if the correct result is reached. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed.


text:
    Ralph RIDDLE v. STATE of Arkansas
    CR 90-64
    791 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine HI, Deputy Public Defender, by: Jerry S. Sailings,
      Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, for appellee.
   Dale Price, Justice.

The appellant was convicted of aggravated assault and theft by receiving. He was sentenced to 10 years imprisonment on the assault charge and 25 years on the theft by receiving charge, to be served consecutively. On appeal, he contends the evidence was not sufficient to support his conviction for theft by receiving. We find the evidence was sufficient and therefore affirm.

On March 12, 1989, Little Rock police officer Stuart Sullivan was on patrol and spotted a light blue 1987 Honda Accord which had been stolen two days earlier. When Officer Sullivan turned on his siren and blue lights, the vehicle fled at a high rate of speed. After a chase lasting several blocks, the vehicle crashed into a stop sign and came to a halt. There were three occupants of the vehicle. Two of them, the driver and the backseat passenger, fled on foot in a southwesterly direction. The appellant, the front seat passenger, fled in a northwesterly direction and was pursued by Officer Sullivan. At several points during the chase, the appellant turned and fired a pistol at the officer but did not hit him.

Four days later the appellant was apprehended and positively identified by Officer Sullivan. He was brought to trial on charges of criminal attempt to commit first degree murder and theft by receiving. The jury convicted him of the lesser offense of aggravated assault on the attempted murder charge. There is no appeal from that conviction. On the theft by receiving charge, the appellant contends the trial court should have granted a directed verdict in his favor, because there was no evidence showing he had possession or control of the stolen vehicle.

To prove theft by receiving, the state must show that the accused received, retained or disposed of the property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (1987). A person “receives” stolen goods if he acquires possession, control or title to the goods or uses the goods as security. Ark. Code Ann. § 5-36-106(b) (1987). The appellant claims the state presented no evidence that he was in possession or control of the vehicle.

In proving the offense of receipt of stolen property, it is not necessary for the state to prove the accused had actual possession of the stolen property; it is enough to prove he had constructive possession or the right to control. Jones v. State, 276 Ark. 116, 632 S.W.2d 414 (1982). A person has constructive possession of property when he has the power to control and the intent to control that property. See Black’s Law Dictionary 285 (5th ed. 1979). See generally, AMCI 3304 (constructive possession of a controlled substance); Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988).

Being a passenger in a stolen vehicle is not, standing alone, enough to establish constructive possession, and many courts have so held. See Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980); State v. Kimbrough, 109 N.J. Super. 57, 262 A.2d 232 (1970); State v. Plank, 46 Wash. App. 728, 731 P.2d 1170 (1987). However, flight to avoid arrest can be considered as corroboration of evidence tending to establish guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). When we consider appellant’s presence in the stolen vehicle along with the additional incriminating fact of flight from the police and his violent attempt to avoid capture, we find there is sufficient evidence from which the jury could have found that the appellant had constructive possession of the car and knew or had reason to know it was stolen.

Two cases from other jurisdictions are instructive in that their facts are virtually identical to the facts in this case. In a Pennsylvania case, In Interest of Scott, 388 Pa. Super. 550, 566 A.2d 266 (1989), the appellant was a passenger in a stolen vehicle. When approached by police, he fled. In response to his argument that there was not sufficient evidence to convict him of theft by receiving, the court held:

Where a passenger in a stolen vehicle flees for the purpose of avoiding arrest, a fact finder may infer therefrom the dominion and guilty knowledge necessary to convict.

See also State v. Frazier, 268 N.C. 249, 150 S.E.2d 431 (1966).

Affirmed.


author: Sam Ed Gibson, Special Justice. Tom Glaze, Justice, Sam Ed Gibson, Special Justice. Tom Glaze. Justice,

text:
    MEDI-STAT, INC. and Dr. Michael Eades v. Gail KUSTURIN, Individually and as Administratrix of the Estate of Timothy Cowan, and Dennis Cowan
    89-238
    792 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990
    [Supplemental Opinion on Denial of Rehearing November 12, 1990.]

      Friday, Eldredge & Clark, by: C. Tab Turner and Scott H. Tucker, for appellants.

      Hamilton & Hicks, by: Charles R. Hicks and George R. Wise, Jr., for appellees.

      Dudley, Newbern, and Glaze, JJ., would grant rehearing. Turner, J., not participating.

   Sam Ed Gibson, Special Justice.

Timothy Cowan went to a Medi-Stat, Inc. clinic for a prescription and a medical clearance to participate in a court-ordered alcohol rehabilitation program using the drug Antabuse. Cowan began Antabuse therapy on December 12,1985. On February 12,1986, he was admitted to a hospital where he died twelve days later of hepatitic (liver) failure resulting from his use of Antabuse.

Appellees sued Medi-Stat, Inc. (Medi-Stat) and Dr. Michael Eades on the basis of negligence in prescribing Antabuse and in following Cowan’s course with the drug. The trial court denied appellant’s motion for directed verdict and judgment NOV. From a verdict in favor of the appellees, the appellants appeal and contend that Medi-Stat was not responsible for the negligence of the physicians who personally treated Cowan and that the evidence was insufficient to support the verdict. We disagree and affirm.

Appellants initially argue that medical doctors cannot as a matter of law be servants or employees in the sense required by the doctrine of respondeat superior and rely on Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397 (1921), and Arkansas Midland R.R. Co. v. Pearson, 98 Ark. 399, 135 S.W. 917 (1908).

Runyan v. Goodrum, supra, was decided at a time when x-ray technology was first being accepted as part of the practice of medicine. That decision holds that the relationship of master and servant cannot exist between physicians and surgeons, who are not x-ray specialists themselves, and the x-ray technicians whom they employ to assist them in the treatment and diagnosis of diseases. The Runyan decision relies on Arkansas Midland R.R. Co. v. Pearson, supra, but Pearson was decided on a different issue: namely, given the facts presented, whether the railroad’s providing medical care was an eleemosynary activity and thus protected from tort liability.

In Pearson, the plaintiffs decedent was injured on the job and was treated by the employer’s physicians and in medical facilities provided by the employer. The decedent’s estate alleged that negligent medical treatment caused the death of the decedent. In considering whether the railroad corporation could be held responsible for the negligence of its physician employees, we said:

This question is for the first time before our court, and it has been decided differently by courts of other jurisdictions. A physician cannot be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily cannot be directed in the diagnosing of diseases and injuries and prescribing treatment therefor; his office being to exercise his best skill and judgment in such matters, without control from those by whom he is called or his fees are paid. It is generally held that hospitals conducted for charity are not responsible for the negligence or malpractice of their physicians, and that persons and hospitals who treat patients for hire, with the expectation and hope of securing therefrom gain and profit, are liable for such negligence and malpractice on their part.

We examined the activity of the railroad in providing medical care facilities and physicians for railroad employees and concluded that, at most, the railroad corporation could only be considered a trustee for the proper administration and expenditure of money devoted to that purpose and should be held only to ordinary care in the selection of competent and skilled physicians to administer relief and provide attention to sick and injured employees.

We further noted:

If the railroad company did in fact realize a profit from the total deductions from the wages of its employees for the hospital fund after paying for the support and maintenance thereof and the employment of physicians, . . . the rule might be different.

Two additional decisions aid in understanding the Runyan decision in its proper perspective in the present case: Gray v. McLaughlin, 207 Ark. 191, 179 S.W.2d 686 (1944), involved a claim for damages arising from x-ray burns. We noted factual similarities between Runyan and Gray and observed:

But in the Runyan case the court stressed the fact that Doctors Runyan, Kirby and Sheppard were not x-ray specialists and had no training in Roentgenology.

The court then concluded that while the relationship of master and servant could not exist between physicians and surgeons, who were not themselves x-ray specialists, and an x-ray specialist whom they employ to assist them in the diagnosis and treatment of diseases, the relationship of master and servant could exist between a physician who was an x-ray specialist and a technician employed by him to operate an x-ray machine in his office.

In Chicago, Rock Island and Pac. R.R. Co. v. Britt, 189 Ark. 571, 74 S.W.2d 398 (1934), the question of whether a for-profit business corporation, in that case a railroad company, could be vicariously liable under the doctrine of respondeat superior for the medical negligence of a physician employed by it was squarely decided in the affirmative. Ironically, the physician involved was the same Dr. J. P. Runyan who had been a successful appellant in Runyan. After discussing the evidence of negligent conduct by Dr. Runyan and the facts concerning his employment by the railroad, we held:

This is simply a question of master and servant and of liability of the master for the wrongful conduct of the servant, and as we have said, we think that whether the servant was guilty of negligence was a question of fact and the finding of the jury is conclusive here.

Three members of the court joined in a dissenting opinion by Justice McHaney. The dissent vigorously argued that Pearson and Runyan controlled the outcome of the decision and mandated a holding that the railroad corporation could not be liable for the injuries caused by Dr. Runyan’s medical negligence. From the arguments in the dissenting opinion it is apparent that the majority considered and rejected the proposition that Runyan precluded application of the doctrine of respondeat superior to a situation where a business corporation employs a physician to deliver medical services.

In light of our conclusion that a business corporation such as Medi-Stat can be liable for the medical negligence of its physician employees we must consider the appellants’ second point of error, in which they contend that the evidence was insufficient to support the verdict.

At trial, the decedent’s mother testified that all of Cowan’s appointments were scheduled with Medi-Stat and not with a particular physician. She testified that Cowan was treated by the physician present at the clinic at the time of his appointment. Numerous medical records from the Medi-Stat clinic were also introduced at the trial. These records all bear the notation Medi-Stat, Inc. and do not contain any name other than MediStat. None of the records contain any sort of disclaimer or other indication that Medi-Stat is not the medical care provider or that its physicians are not employees of Medi-Stat. All of the billing for the medical services was done by Medi-Stat on Medi-Stat stationery that directed payment of the bill to Medi-Stat. In sum, the treatment took place in a Medi-Stat clinic, the clinic chose the physicians, and the clinic billed on its stationery for the physicians’ charges. The verdict was supported by substantial evidence.

The appellants contend that there was no substantial evidence to support an award of pecuniary damage resulting from Cowan’s death. A parent may recover pecuniary damages for the death of an adult child if there is a reasonable expectation of pecuniary benefit from the continued life of the child. Fordyce v. McCants, 51 Ark. 509, 11 S.W. 694 (1889). The evidence in this case shows that the decedent had contributed a significant amount of his past earnings to his mother and sisters. He had assisted his mother with the care of his sister, who suffers from cerebral palsy, which enabled the mother to keep that child in the home instead of an institution. When the mother enrolled in college, she and her son agreed that he would work to contribute to the family income to enable her to finish her education. There was substantial evidence from which the jury could have found a reasonable expectation of pecuniary benefit from the continued life of the adult child.

Appellants also complain that the trial court took judicial notice of the life expectancy of the mother based on the tables set out in the Arkansas Code. After the completion of testimony, and while the trial court and attorneys were discussing the jury instructions to be given, appellees requested that the court state the mother’s life expectancy to the jury. The trial court did so over the appellants’ objection. We find no error in that procedure.

Finally, the appellants assert that the evidence was insufficient to support the verdict as to Dr. Eades. Seven qualified expert witnesses testified in the case. Each of the experts called to testify by the appellees went through all of the contacts by the decedent with the Medi-Stat clinic, including each of the contacts (by telephone and in person) between the decedent and Dr. Eades. In regard to each contact, those experts expressed opinions (which were sharply disputed by the opinion testimony of the experts presented by appellants) that the care rendered to Cowan failed to meet the standard expected of a physician practicing in Little Rock at the time in question. Two physicians stated their opinions that the substandard care, including that rendered by Dr. Eades, was the cause of Cowen’s death. The evidence to support the verdict against Dr. Eades was substantial.

For the reasons stated above, we affirm the decision of the trial court.

Affirmed.

Dudley, Newbern, and Glaze, JJ., would affirm in part and reverse in part.

Turner, J., not participating.

Tom Glaze, Justice,

concurring in part and dissenting in part. I agree with the majority that sufficient evidence was presented to support the verdict against Dr. Eades. My disagreement with the majority concerns its affirmance of the verdict against Medi-Stat, Inc. On that point, I would reverse.

The part of the majority’s holding with which I make exception is the conclusion that Medi-Stat is vicariously liable for the negligence of Dr. Eades. In this context, the doctrine of vicarious liability is also known as respondeat superior. See H.Ward Classen, Hospital Liability for Independent Contractors: Where Do We Go From Here?, 40 Ark. L. Rev. 469 (1987). Oftentimes this vicarious liability question surrounding a physician’s negligence arises in cases involving hospitals. However, in Norton v. Hefner, 132 Ark. 18, 198 S.W. 97 (1917), the issue arose when Dr. Norton requested another physician to take charge of Norton’s patients, and after doing so the evidence reflects the other physician negligently treated the patient. Although Norton was shown not negligent in the treatment of the patient or selection of the physician, the question posited was whether he was vicariously liable for the other physician’s negligence. The Norton court said the following:

[A] party employing a person who follows a distinct and independent occupation of his own, is not responsible for the negligent or improper acts of the other.

The Norton court further stated that the doctrine of respondeat superior applies only in case of the negligence of a servant who acts under the directions and control of the master and does not apply to a physician or other professional man who, when employed, acts upon his own initiative and without direction from others.

In other pertinent holdings, the court, consistent with the rules in Norton, stated as follows:

A physician can not be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily can not be directed in the diagnosing of diseases and injuries and prescribing treatment therefor, his office being to exercise his best skill and judgment in such matters, without control from those by whom he is called or his fees paid.

Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397 (1921); Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, 135 S.W. 917 (1911).

When applying the rules announced in the cases above, the Arkansas law seems settled that a hospital or other entity, requiring the services of a physician, is not the employer of an independent contractor physician, and therefore, is not liable for a physician’s torts, which arise from his or her negligence or malpractice. See id. And, while this appears to be the general rule, it has also been said that if there is a bona fide ongoing employer-employee relationship between the hospital and the physician, the hospital will be held vicariously liable for the tortious actions of the physician that occurs within the scope of his employment. See 40 Ark. L. Rev. at 479.

In Chicago, Rock Island & Pac. R.R. Co. v. Britt, 189 Ark. 571, 74 S.W.2d 398 (1934), a case relied upon by the majority, the Chicago Rock Island railway company contracted with Drs. J. P. Runyan, W. S. Britt, and other doctors (collectively known as St. Luke’s Hospital Clinic) for the clinic to provide surgical and medical attention to the company’s employees. While assisting Dr. Runyan during a surgery, Britt sustained an injury to her eye as a result of Runyan’s negligence. Britt sued both Runyan and Chicago Rock Island, and the jury returned a verdict against both Runyan and the railway company. In affirming the vicarious liability award against the company, this court set out the details of the parties’ contract and their relationship. The Britt court concluded the jury was warranted in finding that the railway company was in complete control of the hospital and Dr. Runyan. In this connection, I need not relate all the evidence discussed by the court but I would point out that, under the contract, the railway company’s chief surgeon, S. C. Plummer, had the authority to order, direct and regulate Dr. Runyan.

The majority opinion, by citing the dissent in the Britt case, seems to infer that that holding reversed Runyan. I thoroughly disagree. While the Britt decision is quite detailed and, perhaps convoluted, at times, the court clearly stated that the evidence provided a fact question that a master-servant relationship existed between the parties, and that, based upon the control the railway company exercised over Dr. Runyan and the hospital, Britt’s vicarious liability award against the company was proper.

In the present case, appellees failed to show that an employee/employer relationship existed between Dr. Eades and Medi-Stat. The burden, in this respect, was appellees’, see AMI 207, and appellees offered no evidence whatsoever on this issue.

The majority opinion does recite evidence the appellees presented below, but none of it pertains to proving an employer/ employee relationship. Instead, it seems directed more at showing Medi-Stat was liable based upon an “ostensible agency” or “apparent authority” theory. In this regard, the majority relates that the decedent’s mother scheduled appointments with MediStat (and not a particular doctor) and that the treating doctor was merely the one present at the time of the appointment. It also notes that the clinic’s records and billings bore the name of MediStat with no mention of a physician. Again, none of these factors bear on whether Dr. Eades was an employee of Medi-Stat. If the majority recites these matters to support Medi-Stat’s liability under some other theory, such as apparent authority, it fails to say so.

In any event, I believe Arkansas law, as noted above, is quite clear as it bears on whether Medi-Stat should be liable for Dr. Eades’ negligence under the circumstances and evidence presented in this case. In my view, the law requires the judgment against Medi-Stat to be reversed.

Dudley and Newbern, JJ., join this opinion.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

NOVEMBER 12, 1990

798 S.W.2d 438

1. Pleading — allegation of complaint not specifically denied is taken as admitted. — An allegation of a complaint not specifically denied is taken as admitted.

2. Physicians & surgeons — master/servant relationship. — When it is shown that the person causing the injury was, at the time, rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master/servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contract to show the true relationship of the parties; where the testimony showed that the deceased saw whichever doctor was on duty at the clinic at the time of his visit and that all of the records of the clinic relative to the deceased bore only the clinic letterhead and all billing and payment were between the clinic and the patient, the factual issue was brought within this rule.

Petition for Rehearing; denied.

Friday, Eldredge & Clark, by: C. Tab Turner, for appellants.

Charles Hicks, for appellees.

Sam Ed Gibson, Special Justice.

In its petition for rehearing Medi-Stat insists that our opinion of July 9, 1990, affirming the judgment awarded against the appellants, overlooks the appellees’ failure to produce “any evidence at trial that Medi-Stat exercised control over the physicians in hiring and firing, the setting of work schedules and salary, the right to select the patients to be treated, or the method of treatment.”

We recognize that the emphasis of our opinion was given to a discussion of the cases of Runyan v. Godrum, 147 Ark. 481, 228 S.W. 397 (1921), and Arkansas Midland R.R. Co. v. Pierson, 98 Ark. 399, 139 S.W. 917 (1908), but that was because the primary thrust of appellant’s argument, in reliance on those cases, was that medical doctors cannot be employees as a matter of law so as to give rise to vicarious liability under the doctrine of respondeat superior. We examined that issue and considered it in depth in our earlier opinion. We will not reexamine it here.

Appellant did argue that appellees failed to meet their burden of proving that Dr. Eades was the agent or employee of Medi-Stat (citing AMI 207) and to directly answer that argument, we issue this supplemental opinion.

Appellant asserts that appellees’ complaint alleged that Medi-Stat was the employer of, and vicariously responsible for, Dr. Eades and that Medi-Stat denied that Dr. Eades was the employee of Medi-Stat. We do not find that to be so. Paragraph one of the complaint alleges that, “The defendant, Dr. Michael Eades, at all times relevant hereto, was a licensed practicing physician working as an agent or employee for Medi-Stat Medical Clinic, Inc., an Arkansas Corporation.” The answer nowhere specifically denies that allegation. The only relevant response reads, “The defendants admit that Dr. Michael Eades was a licensed practicing physician working at Medi-Stat Medical Clinic, Inc., an Arkansas Corporation.” An allegation of a complaint not specifically denied is taken as admitted. Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968). Rule 8(b) of the Arkansas Rules of Civil Procedure reads in part:

A party shall state in ordinary and concise language his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.

Even if it could be said the agent/employee issue was joined by the pleadings, we think Ms. Kusturin’s testimony that Timothy saw whichever doctor was on duty at the clinic at the time of his visit and that all of the records of Medi-Stat relative to Timothy Cowan bear only the Medi-Stat letterhead and all billing and payment were between Medi-Stat and the patient, brought the factual issue within the purview of Schuster’s Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987):

[W]hen it is shown that the person causing the injury was, at the time, rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master/servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contract to show the true relationship of the parties. 722 S.W.2d at 864.

This disputed issue, it should be remembered, arises from the denial of Medi-Stat’s motion for a directed verdict on the ground that there was no evidence that Eades was the agent or employee of Medi-Stat. In Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958), we said:

The rule is well established that where fairminded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. L.I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W.786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom the plaintiff is not—under the law—entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 525, 151 S.W. 691.

The petition for rehearing is denied.

Glaze, J., dissent.

Turner, J., not participating.

Tom Glaze. Justice,

dissenting. The majority is mistaken when, in its opinion, it states the appellants failed to deny appellees’ allegation that Dr. Eades was an agent or employee for Medi-Stat Medical Clinic, Inc. In fact, appellants worded their answer to appellees’ complaint very carefully to say only that “Dr. Michael Eades was a licensed practicing physician working at Medi-Stat.” Such language obviously is broad enough to include Dr. Eades as working in the capacity of an independent contractor. In paragraph 11 of their answer, they further denied “all remaining allegations” — a denial which clearly would have included the appellees’ claims that Dri Eades was an agent or employee of the clinic. In fact, to conclude otherwise would mean that a general denial is meaningless, and unless a defendant specifically denied each allegation of a complaint, he or she will be charged with having admitted them. In addition to the parties’ pleadings, one need only review the pretrial discovery and the evidence and arguments at trial to know that the agency and employment issues were contested throughout this litigation.

I further should note that I parted from the majority’s earlier opinion when it held Medi-State vicariously liable for Dr. Eades’s negligence. The majority listed some six factors to support its view on this issue and now attempts to shore up its position by mentioning the parties’ pleadings as discussed above.

In addition to disagreeing with its view of the pleadings, I take slight exception to how two of the six factors were described in the majority’s earlier opinion. For example, the majority opinion concluded the clinic chose the physician who treated Mr. Cowan when, in fact, no evidence was offered by anyone as to how physicians were assigned to patients. The majority opinion also mentioned that none of the medical records contained a disclaimer or other indication that Medi-Stat is not the medical care provider or that its physicians were not employees of Medi-Stat. While it is clear that agency may not be proved by declarations, actions or inactions of a purported agent, here the lack of a disclaimer or the medical chart was never mentioned at trial; nor was there a law that required such a disclosure.

In sum, I wish to reiterate my earlier view that the appellees clearly failed to show a employee/employer relationship between Dr. Eades and Medi-Stat and to the extent vicarious liability was not shown, I believe the judgment obtained against Medi-Stat should be set aside.


author: Bobby Lee Odom, Special Justice.

text:
    MID-CENTURY INSURANCE COMPANY, Tracy M. Snyder, and Wiley S. Snyder v. Marsha ANDERSON and Western Fire Insurance Company
    90-112
    791 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr. and Brian Allen Brown, for appellants.

      Daggett, Van Dover & Donovan, by: Doddridge M. Daggett, for appellees.
   Bobby Lee Odom, Special Justice.

On June 22, 1985, the appellee, Marsha Anderson, was a passenger on a motorcycle that was stopped at an intersection waiting for the traffic light to change. The motorcycle was struck in the rear by a vehicle driven by the sixteen-year-old appellant, Tracy Snyder. Anderson was insured under a valid automobile insurance policy, which included no-fault benefits as defined by Ark. Code Ann. § 23-89-202 (1987), with Western Fire Insurance Company (Western). She was injured in the collision and incurred medical bills and had a loss of wages. Snyder and her father, Wiley Snyder, were insured with Mid-Century Insurance Company (Mid-Century) for both liability and no-fault benefits.

Anderson filed suit against Snyder and her father on December 16, 1985. The tort claim against the Snyders was settled on January 15, 1987, for the liability policy limits of $25,000, but left open the suit for no-fault benefits.

On December 10, 1987, Anderson notified Western for the first time with reference to the motorcycle accident and claimed medical and wage loss benefits. Western admitted that there was a valid and collectible policy for Anderson on June 22, 1985; however, since she had failed to notify them of the accident in a timely manner and also failed to notify them that a lawsuit had been filed and that a release had been signed in the settlement of January 15,1987, Anderson’s coverage under her policy was not collectible.

Anderson then filed a third party suit against Western on March 24,1988, and on October 14,1988, filed a substitute third party complaint against Snyder’s insurance company, Mid-Century, to recover her no-fault benefits in accordance with section 23-89-202, which states in pertinent part as follows:

REQUIRED FIRST PARTY COVERAGE Every automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this state shall provide minimum medical and hospital benefits, income disability, and accidental death benefits, under policy provisions and on forms approved by the Insurance Commissioner, to the named insured and members of his family residing in the same household injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons other than those occupying another vehicle struck by the insured motor vehicle, without regard to fault, as follows:
(1) MEDICAL AND HOSPITAL BENEFITS. All reasonable and necessary expenses for medical, hospital, nursing, dental, surgical, ambulance, and prosthetic services incurred within twenty-four (24) months after the automobile accident, up to an aggregate of five thousand dollars ($5,000) per person, and may include any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing. Expenses for hospital room charges may be limited to semiprivate accommodations;
(2) INCOME DISABILITY BENEFITS. Seventy percent (70 %) of the loss of income from working during a period commencing eight (8) days after the date of the accident, and not to exceed fifty-two (52) weeks, but subject to a maximum of one hundred forty dollars ($140) per week. In the case of a nonincome earner, the benefits shall consist of expenses not to exceed seventy dollars ($70.00) per week, or any fractional part of a week, which are reasonably incurred for essential services in lieu of those the injured person would have performed without income during a period commencing eight (8) days after the date of the accident and not to exceed fifty-two (52) weeks.

The trial court found that Anderson’s policy through Western was not collectible and that Western was entitled to a summary judgment due to Anderson’s failure to notify Western prior to two years and five months after the accident and to notify them when she filed suit against Mid-Century and the Snyders. The court also found that the settlement reached between Mid-Century and Anderson was dispositive on the issue of liability only and did not extend to no-fault benefits.

The trial court then found Mid-Century liable to Anderson, under section 23-89-202, for medical, hospital, and income disability benefits totaling $7,514.88 and also awarded penalty and fees pursuant to Ark. Code Ann. § 23-79-208 (1987). Mid-Century and the Snyders appeal the judgment against them. There is no appeal from the summary judgment dismissing Western.

This is a case of first impression to determine when the right to a valid and collectible no-fault insurance policy accrues in accordance with section 23-89-202. We find that it is the date of the accident and not the date the insured notifies the insurance company. Therefore, we reverse and dismiss the judgment of the trial court.

The parties stipulated that on June 22,1985, Anderson was insured with Western for automobile insurance that included no-fault benefits as defined by section 23-89-202. Also, it was stipulated that the Snyder vehicle had, on the date of the collision, an automobile insurance policy with Mid-Century that included no-fault benefits in accordance with section 23-89-202.

In Lawson v. State Farm Mut. Auto. Ins. Co., 291 Ark. 391, 725 S.W.2d 543 (1987), we had to determine which no-fault policy would apply in accordance with Ark. Stat. Ann. § 66-4014 (Repl. 1980 and Supp. 1985), now section 23-89-202, when a passenger had his own automobile insurance that provided no-fault coverage and the vehicle he was riding in also had no-fault coverage. We stated that “. . .in the event that more than one policy has personal injury protection coverage, the insured’s own policy shall provide primary coverage.”

Although the Lawson case involves an automobile passenger, while this case involves a motorcycle passenger struck by the insured vehicle, the same statute applies in determining coverage. Ark. Code Ann. § 23-89-204(a) (1987) provides as follows:

COVERAGE FOR PASSENGERS AND PERSONS STRUCK BY INSURED VEHICLE.
(a) The coverages provided in § 23-89-202 above shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle including pedestrians, bicyclists, motorcyclists, persons in a horse-drawn wagon or cart, and persons riding on an animal, and to none other.
(b) However, the coverages shall not be applicable, or payable, if the prescribed minimum coverages are afforded to those occupants and to persons struck by the insured vehicle, either as a named insured or additional insured under another valid and collectible automobile insurance policy.

The appellants contend that Anderson had a valid and collectible insurance policy with no-fault coverage through Western on June 22,1985, and that it had the primary responsibility for personal injury protection coverage in accordance with the Lawson case and section 23-89-204(b). We agree.

The date of the accident is the time to determine whether an insurance policy with no-fault coverage is valid and collectible. In this case, Anderson had a valid and collectible policy that included no-fault coverage with Western on the date of the accident; consequently, it was primary in coverage responsibility. Therefore, Mid-Century’s no-fault coverage is not applicable in accordance with section 23-89-204(b).

Reversed and dismissed.

Special Justice Smith joins in this opinion.

Newbern and Glaze, JJ., not participating.


author: Per Curiam.

text:
    Joe BRAWLEY v. STATE of Arkansas
    CR 90-59
    791 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Kent J. Rubens, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Joe Brawley, by his attorney, has filed a motion for a belated appeal. His attorney, Kent J. Rubens, admits he failed to file a timely notice of appeal pursuant to ARAP Rule 4(c).

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

The State’s motion to dismiss the appeal is denied. The state’s motion to settle the record and motion for stay of brief time is granted.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Whitaker ALLEN v. TEXARKANA PUBLIC SCHOOLS
    90-54
    794 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Mitchell and Roachell, by: Clayton R. Blackstock and Paul J. Ward, for appellant.

      Lavender, Rochelle, Barnett & Dickerson; and Laser, Sharp, Mayes, Wilson, Bufford & Watts, by: Dan F. Bufford, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the question as to whether or not the trial court erred in confirming a school board’s decision to not renew a teacher’s contract under The Teacher Fair Dismissal Act of 1983, codified as Ark. Code Ann. §§ 6-17-1501 to -1510 (1987). We find that it did.

Whitaker Allen, appellant, taught in the Texarkana school system for thirty-four years. On April 7,1988, Allen was notified by the school principal, Larry Witherspoon, that he was recommending to the superintendent, Ross Beck, that Allen’s employment contract not be renewed for the next year. Beck then wrote Allen that based on the letter from Witherspoon containing five specific charges, he, Beck, was going to recommend to the board that Allen’s contract not be renewed.

Allen was sent a notice of nonrenewal in compliance with section 6-17-1507(c), which provides that notice shall include a simple but complete statement of the grounds for the recommendation of termination. The notice from Witherspoon to Allen contained the following list of reasons recommending nonrenewal:

a. November 7, 1983
Failure to cooperate with an administrator at College Hill Junior High.
b. October 8, 1984
Lack of professional courtesy.
c. October 27, 1987
Failure to respect the rights of a student.
d. January 25, 1988
Failure to respect the right of a student.
e. February 18, 1988
Failure to follow standard operational procedures at College Hill Junior High School.

On May 25,1988, the school board held a hearing on these charges and, in accordance with section 6-17-1510(c), the board, by majority vote, made specific written conclusions with regard to the truth of each of the five reasons given Allen as a basis for nonrenewal of his contract. In doing so, the board recorded its vote on each allegation, finding truth in the charges of 1983 and 1984, but not finding truth in the three charges of 1987 and 1988. Thereafter, the board sustained the recommendation of the superintendent for nonrenewal of Allen’s contract by a four to two vote. There is nothing in the record of the school board’s hearing to explain this final vote.

Allen appealed to the Miller Circuit Court, which affirmed the school board’s decision. Allen now appeals and claims that the trial court erred in not holding that the school board’s nonrenewal of his contract was arbitrary and capricious and that the trial court erred in wrongfully considering two students’ depositions as trial testimony when they were not presented during the course of the school board’s hearing.

Allen argues that the board’s vote on the truthfulness of the charges, pursuant to section 6-17-1510(c), reveals, of the five charges listed as reasons for dismissal, that only the first two, which occurred in 1983 and 1984, were found to be true by the board. The more recent charges from 1987 and 1988 did not receive a majority vote in favor of their truthfulness. Allen contends, and rightfully so, that the school board’s record is such that we can only assume that its decision not to renew was based on charges of four or five years ago, and as a result is arbitrary and capricious.

In reviewing the judgment of a trial court, this court should affirm unless that court was clearly erroneous. Moffitt v. Batesville School Dist., 278 Ark. 77, 643 S.W.2d 557 (1982); Chapman v. Hamburg Pub. Schools, 274 Ark. 391, 625 S.W.2d 477 (1981). It is not the function of this court to substitute its judgment for the circuit court or for that of the school board. Leola School Dist. v. McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986); Green Forest Pub. Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985).

Granted, a school board may terminate or renew a teacher’s contract “for any cause which is not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations promulgated by the board.” An action can be considered “arbitrary” and “capricious” only if it is not supportable on any rational basis. Lamar School Dist. No. 39 v. Kinder and Wright, 278 Ark. 1, 642 S.W.2d 885 (1982).

In Ottinger v. School Dist. No. 25, 157 Ark. 82 (1923), we held that a teacher’s conduct under a previous contract cannot constitute grounds for the avoidance of a subsequent contract. The same would be true in this case if, in fact, Allen was terminated for his conduct during 1983 and 1984.

The school board argues in its brief that it did not act arbitrarily as Allen was not fired for any one particular incident, but rather for a “pattern of conduct.” The board supports its position by contending that Allen knew that the charges against him were to be looked at “as a whole” because, both at the beginning and end of the school board hearing, Superintendent Beck told the board, in Allen’s presence, that his recommendation was based on this “compilation of repeated behavior not indicative of good judgment or good teaching behavior” and that there had been no evidence of improvement over the years.

Even so, this presentation by the superintendent can not be substituted for the code requirements of section 6-17-1506(b) concerning the specificity of charges. In Murray v. Altheimer-Sherrill Pub. Schools, 294 Ark. 403, 743 S.W.2d 789 (1988), we held that a teacher is entitled to rely upon the “simple and complete statement of the reasons” contained in a nonrenewal recommendation pursuant to section 6-17-1506(b), and for this reason, nonrenewal for charges not stated in the superintendent’s recommendation was arbitrary and capricious. The circumstances in Murray are analogous to those in this case. In examining the superintendent’s notice of nonrenewal, we find that it does not contain a reason indicating a “pattern of misconduct” or “compilation of repeated behavior.” In addition, we notice that the board made no truth or falsity findings on these unstated charges as required by section 6-17-1510(c).

To allow the superintendent and the board to delve into ad libbed charges renders meaningless the requirements of sections 16-17-1507(b) and 16-17-1507(c), and our language in Murray that teachers are entitled to rely on a simple and complete statement of reasons as to nonrenewal of their contracts.

It is obvious to us that the nonrenewal of Allen’s contract was based either on his conduct which occurred in 1983 and 1984 under previous contracts, or on charges which were not set out in the superintendent’s statement for nonrenewal. Regardless of which reason, we find the actions of the board arbitrary and capricious. As a result, it is not necessary for us to consider whether or not the trial court committed error in considering the affidavits of two students as evidence.

Judgment is reversed and remanded for a determination as to the amount of backpay to be awarded to Allen and his right to reinstatement.

Hays, J., dissents.

Glaze, J., not participating.

Steele Hays, Justice,

dissenting. Whatever may be said of the ballot procedures and results of the school board in considering the grounds for nonrenewal of Mr. Allen’s contract, Ark. Code Ann. § 6-17-1510 (1987) provides that:

Additional testimony and evidence may be introduced on appeal [to the circuit court] to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.

That evidence introduced in circuit court included testimony from Keicha Fortson and Timika Montgomery that Mr. Allen engaged in highly suggestive improprieties with both students after having been warned against such familiarities. The law provides that a teacher’s contract may not be renewed for any reason which is not arbitrary, capricious or discriminatory. Lamar School Dist. No. 39 v. Kinder and Wright, 278 Ark. 1, 642 S.W.2d 885 (1982). If any rational basis exists for nonrenewal, the school board should be affirmed. Kirtley v. Dardanelle Public Schools, 288 Ark. 86, 702 S.W.2d 25 (1986). The reasons relied on by the school board in this case were clearly not without a rational basis. I would affirm.


author: Jack Holt, Jr., Chief Justice.

text:
    Larry BURNS v. STATE of Arkansas
    90-33
    793 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      John C. Wisner III, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves Act 715 of 1981, which is codified at Ark. Code Ann. §§ 12-29-501 to -507 (1987) and known as the State Prison Inmate Care and Custody Reimbursement Act.

On March 27, 1981, the appellant, Larry Burns, was convicted of 1) theft of property and sentenced to ten years in the Arkansas Department of Correction, 2) breaking or entering misdemeanor theft of property and sentenced to seven years in the Arkansas Department of Correction to run concurrently, and 3) theft of property and sentenced to five years in the Arkansas Department of Correction to run consecutively.

In November 1986, Burns received an inheritance from his father; the State subsequently filed suit pursuant to Act 715 to recover Burn’s estate deposited in his account at the Tucker Unit, in the amount of $6,870.43. The trial court awarded the State a judgment in the amount of $55,888.76 as reimbursement costs for Burn’s care.

On appeal, Burns alleges four points of error: 1) the trial court’s judgment of $55,888.76 was excessive and not supported by the evidence or by law, 2) Act 715 of 1981 is an unconstitutional bill of attainder in that the State’s confiscation of his estate of inheritance results in a corruption of the blood, 3) Act 715 of 1981 is an unconstitutional ex post facto law in that the forfeiture of his estate is a punishment legislatively added after his incarceration, and 4) he was singled out for prosecution under Act 715 of 1981 and was consequently deprived of due process and equal protection of the law.

We agree that the judgment of $55,888.76 was in error and correct the judgment to reflect the actual amount of Burn’s estate on account at the Tucker Unit, noted at the time of his trial as $5,850.58.

We will discuss Burn’s points of error in reverse order and begin with his contention that he was singled out for prosecution under Act 715 and was consequently deprived of due process and equal protection of the law. We note that the record is barren of any proof that Burns was “singled out” and have stated that we will not attempt to respond to an argument lacking entirely in specificity. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

Additionally, the act is facially neutral and, as codified, provides in pertinent part as follows:

Section 12-29-503(b)
The Attorney General shall investigate or cause to be investigated all such reports furnished by the Department of Correction, for the purpose of securing reimbursement for the expenses of the State of Arkansas for the cost of care of the prisoners.
Section 12-29-504(a)
Whenever it shall be found that any person has been admitted to a penal facility of the Department of Correction as a prisoner, the Attorney General or the prosecuting attorney of the county from which the person was so sentenced shall, if the person or prisoner possesses any estate or shall thereafter while he shall remain in the institution become possessed thereof, petition the circuit court. . . that the estate may be subjected to the payment to the state of the expenses paid and to be paid by it on behalf of the person as a prisoner.

Consequently, the State’s pursuit of reimbursement of the costs of Burn’s care under the Code provisions is not violative of Burn’s due process or equal protection rights.

Burns next argues that Act 715 is unconstitutional as an ex post facto law. Burns was convicted on March 27,1981; Act 715 went into effect on June 23, 1981. In support of his argument, Burns contends that the act adds a new punishment to his conviction, in the form of a forfeiture of his estate, by reaching back in time to punish acts that occurred before the enactment of the law.

In Peeler v. Heckler, 781 F.2d 649 (8th Cir. 1986), the court analyzed an ex post facto law as follows:

An ex post facto law is one which reaches back in time to punish acts which occurred before enactment of the law. A penal statute may also be an ex post facto enactment if it adds a new punishment to the one that was in effect when the crime was committed. The appellant contends that § 402(x)(l) as applied to him is such a law, since its sanctions are triggered by the past commission of a felony, and its effect is the forfeiture of a benefit formerly received. However, even if what the appellant says is a true characterization of the statute, we may not hold that it imposes ex post facto penalties unless the law was enacted for punitive purpose. If the law in question is focused on the past crime, then it is likely intended as a punishment, while if the focus is upon the benefit from which the person is barred, it is not, even though the impact on the individual may be harsh.
(Citations omitted.)

In Peeler, the court held that a federal statute that suspended social security disability benefits for incarcerated felons was not an ex post fact law, since there was a rational connection between the provision and a nonpunitive goal regulating the distribution of disability benefits. In that case, people in prison have their subsistence needs taken care of by the imprisoning jurisdiction; for such reason, it was entirely rational for Congress to suspend federal disability payments to prisoners.

In this case, too, there is a rational connection between the act provisions and the nonpunitive goal of reimbursement to the State for care and custody expenses from state prison inmates. Act 715 is not unconstitutional as an ex post facto law as it is not focused on the crimes committed by Burns, nor is it additional punishment.

Burns also alleges that Act 715 is an unconstitutional bill of attainder in that the State’s confiscation of his estate of inheritance results in a “corruption of the blood.”

In Nixon v. Administrator of General Services, 433 U.S. 425 (1977)(citing United States v. Brown, 381 U.S. 437 (1965)), the Supreme Court discussed the key features of a bill of attainder and stated that it was “. . . a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Bills of attainder are proscribed by Art. I, § 10 of the United States Constitution, which provides that “[n]o State shall. . . pass any Bill of Attainder, ex post facto Law . . . .”

In regard to an act’s infliction of punishment, the court in Nixon adopted a three test approach: first, whether any feature of the act fell within the historical meaning of legislative punishment; second, whether under a functional test, the law, viewed in terms of the type and severity of burdens imposed, reasonably could be said to further nonpunitive legislative purposes; and third, whether the legislative record evinced a congressional intent to punish.

As a result, the court held that a portion of the Presidential Recordings and Materials Preservation Act, that generally provided that the Administrator of General Services shall take custody of former President Nixon’s papers and tape recordings and promulgate regulations for public access to such materials, was not violative of constitutional provisions against bills of attainder because the court found that the statute did not satisfy the specificity element of a bill of attainder and did not inflict the requisite punishment. The court concluded that the challenged act did not rest upon a congressional determination of former President Nixon’s blameworthiness and a desire to punish him, but, rather, was an act of nonpunitive legislative policymaking.

In assessing the merits of the historical test, we note that, in England, a bill of attainder originally connoted a parliamentary act sentencing a named individual or identifiable members of a group to death. Additionally, enactments originally characterized as bills of pains and penalties, legislative acts inflicting punishment other than execution, are also proscribed. Pains and penalties historically consisted of imprisonment, banishment, punitive confiscation of property by the sovereign, and a legislative enactment barring designated individuals or groups from participation in specified employments or vocations. See generally Nixon v. Administrator of General Services, supra; Cummings v. Missouri, 71 U.S. 277 (1866). “The attainder of death was usually accompanied by a forfeiture of the condemned person’s property to the King and the corruption of his blood, whereby his heirs were denied the right to inherit his estate. Blackstone traced the practice of ‘corruption of blood’ to the Norman conquest.” Nixon v. Administrator of General Services, supra.

Burns cannot legitimately claim to have suffered “corruption of the blood” or any of these other forbidden deprivations. In fact, his claim that he was denied the right to inherit from his father’s estate is belied by the fact that his inheritance composes the substance of his account at the Tucker Unit, which the State now claims as his estate. Consequently, he has not been prevented from inheriting his father’s estate due to his incarceration, nor has he been prevented from bequeathing any remainder of his estate to his heirs that is not subject to the State’s claim of reimbursement. The fact that the State’s claim encompasses the entirety of Burn’s account does not make the act a bill of attainder.

The functional test can be analyzed in the same manner as Burns’s argument relating to the act as an ex post fact law. The act reasonably furthers nonpunitive legislative purposes in the form of reimbursement for the care and custody of state prison inmates and, accordingly, is not a bill of attainder under this test.

Burns concedes that the motivational test is not applicable to this case as the primary rule in the construction of statutes is to ascertain and give effect to the legislative intent. The first thing we do in construing a statute is to look at the language of the statute and give it its ordinary meaning. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985).

Consequently, none of these tests affect the constitutionality of the act as a bill of attainder.

Finally, Burns contends that the trial court’s judgment was excessive and not supported by the evidence or by the law. We agree that the judgment was in error as to the amount; however, the State is entitled to the amount of $5,850.58, which was on account at the Tucker Unit at the time of his trial. Section 12-29-502(4) defines “estate” in the context of the act as follows:

“Estate” means any tangible or intangible properties, real or personal, belonging to or due an inmate confined to an institution of the Department of Correction, including income or payments to the inmate from . . . previously earned salary or wages, bonuses, annuities, pensions, or retirement benefits, or any source whatsoever.

The plain language of the statute reflects that the State is permitted to recover from an inmate’s estate, whatever it might be. In this instance, it is $5,850.58.

Affirmed as modified.


text:
    Paul Gerald CARTER v. Terrisa Ann CARTER
    90-73
    792 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered July 16, 1990

      Bill G. Wells, for appellant.

      Brazil, Clawson & Adlong, by: Charles E. Clawson, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellee, Terrisa Ann Carter, was awarded a divorce from the appellant, Paul Gerald Carter, on September 12,1989. On appeal, Mr. Carter contends that the chancellor erred in declaring that the proceeds from a personal injury award were marital property.

When we examine a discretionary decision made by a chancellor, the question is not what we would have done, but whether, as a matter of law, discretion was abused — was the judgment call arbitrary or groundless? Looper v. Madison Guaranty Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987)(citing Keirs v. Mt. Comfort Enterprises et al., 266 Ark. 523, 587, S.W.2d 8 (1979), and Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968)). We hold that the chancellor did not abuse his discretion in this case.

The parties were married on February 4, 1986, and they separated on June 30, 1989. Mr. Carter sustained his injury on December 19, 1985, and received $32,050 from a workmen’s compensation settlement and $58,627 from a third party settlement in March 1988 for the personal injury. After purchasing several objects with the proceeds of the settlement, Mr. Carter placed the remainder of $25,000 in a joint certificate of deposit with Mrs. Carter.

In his decree of divorce, the chancellor awarded Mrs. Carter “one-half of the contents of any accounts held by the Defendant which represents or contains proceeds from a settlement received in the matter of Carter v. Southwestern Public Service, et al., in the State of New Mexico.”

On October 30,1989, after the time limitation for filing an appeal to the divorce decree had expired, Mrs. Carter filed a petition for citation against Mr. Carter because she had not received her share of the settlement proceeds pursuant to the divorce decree. Mr. Carter, in fact, had withdrawn the amount of the certificate of deposit from the bank and placed $22,000 of the money in another certificate of deposit in his parents’ names. The chancellor granted the petition for citation, and a hearing was set for November 28, 1989.

Mr. Carter answered and also filed a petition to set aside the decree, or in the alternative to modify the decree, on November 27,1989. In his petition, Mr. Carter alleged that a prior property agreement with Mrs. Carter existed, that casualty prevented him from correcting the omission of the agreement from the decree, that his personal injury occurred prior to his marriage, and that the personal injury settlement was for permanent disability and future medical expenses.

At the hearing, the chancellor held that there was “no basis for setting aside any portion of the decree. It does not find fraud; it does not find unavoidable casualty. . . .Mr. Carter has five days to replace [the money in the certificate of deposit] . . .” From the chancellor’s denial of his petition, Mr. Carter appeals.

We note, initially, that Mr. Carter was served, by certified mail, the complaint for divorce on July 20,1989. He did not file an answer or participate in the proceedings and failed to appeal the divorce decree. Instead, Mr. Carter now relies on our rules of civil procedure that allow vacating or modifying a judgment by the trial court if certain grounds are proved. Mr. Carter alleges casualty and fraud in obtaining the judgment; those arguments are grounds for setting aside the judgment after the expiration of ninety-days from the date of the filing of the judgment with the clerk of the court. Ark. R. Civ. P. 60(c). Arkansas R. Civ. P. 60(b) provides, on the other hand, for the relief from a judgment, decree, or order as follows:

Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.

The decree granting the Carters’ divorce was filed on September 12, 1989, and Mr. Carter’s petition to set aside the decree, or in the alternative to modify the decree, was filed on November 27,1989. The chancellor denied Mr. Carter’s petition at the November 28,1989, hearing; consequently, the applicable civil procedure provision is Rule 60(b) rather than Ark. R. Civ. P. 60(c).

We discussed the applicability of Rule 60(b) in Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 682 S.W.2d 452 (1984):

For a very long time we have held that a court retains control over its judgments during the term at which they are made. When a judgment is set aside during the term, the parties are put back in the position they were in before the judgment was entered. During the term a judgment remains subject to the plenary control of the court and may be vacated, set aside, modified or annulled upon application or upon the court’s own initiative. The power of the courts to modify or set aside a judgment during the term it was entered [now 90 days: ARCP Rule 60(b)] exists as an inherent power and outside of any rule or statute.
(Citations omitted.)

In McCormick v. McCormick, 246 Ark. 348, 438 S.W.2d 23 (1969) and Sariego v. Sariego, 231 Ark. 35, 328 S.W.2d 136 (1959)), we noted that “[w] here one has notice of the pendency of an action for divorce and fails to appear and defend, a motion to vacate the decree will be denied where there is negligence or a lack of diligence shown.”

The original decree of September 12, 1989, became a final judgment. It was not appealed even though Mr. Carter had actual notice of the action more than seven weeks prior to the time of the decree.

Under these circumstances, the chancellor found no reason to vacate or modify the Carters’ original decree, and we cannot say that his finding was an abuse of discretion.

Affirmed.