author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    CITY OF GREENBRIER et al. v. Gene COTTON
    87-72
    737 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987
    [Rehearing denied November 16, 1987.]

      David H. White, for appellants.

      Sharon DuPriest, for appellee.

      Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

This case involves a salary dispute between the deputy city marshal of Greenbrier and that city. The deputy, Gene Cotton, was appointed by the duly elected city marshal, Jerry Manley. Cotton was unable to convince the city council to pay him a salary. But he served anyway from January 2, 1985, through September 9, 1985, and sued the city for compensation. At the trial the city argued the case should not go to the jury because the city did not pass an ordinance for the salary. The case was submitted to the jury under an agency and implied contract theory and they awarded Cotton $3,800. The city appeals arguing that the trial judge was wrong to submit this to the jury. We agree.

The facts are largely undisputed. The city of Greenbrier is a city of the second class. Second class cities may have city marshals. See Ark. Stat. Ann. § 19-1103.2 (Repl. 1980).Thecity marshal can be elected or appointed by the mayor with approval of the city council. Ark. Stat. Ann. § 19-1103.2; Kennedy v. Garner, 230 Ark. 698, 326 S.W.2d 910 (1959). In this case the city marshal, Jerry Manley, was elected to that position. He had in the past used part time deputies: some worked as volunteers and one worked part time and was apparently paid $160 per month.

Manley appointed Gene Cotton as a deputy marshal and Cotton was sworn in on January 2, 1985. The marshal did not consult with the council about the appointment. The marshal testified that he told Cotton he would “try to get him” a salary of $850 per month and a uniform allowance of $ 100. Manley said he discussed with the council the need for a full time deputy at a city council meeting which was held shortly after the city officials were sworn in. Manley testified that Alderman Sutterfield asked him at this meeting if he needed a full time deputy, and he said yes. Sutterfield asked him how much he intended to pay Cotton, and he said $850 per month plus the $ 100 uniform allowance. He said Alderman Garrett told him to have Cotton get in uniform if he was going to work for the city and to quit using his (Cotton’s) wrecker to pull vehicles within the city limits. Cotton owned and operated a wrecker service prior to being appointed as deputy. Cotton began work after he was sworn in.

Manley testified that one day he and Cotton were driving on the road by Alderman Johnny Henderson’s house. They stopped and talked to him about the amount of the deputy’s salary. Manley said Henderson agreed the salary sounded fair, and he didn’t see where there would be any problems receiving it. Manley testified he went to the next two or three council meetings and asked about the salary, and the city council would table it until the next meeting. Finally, the city council refused to talk about the salary and would not let Manley place it on the agenda.

Cotton testified he bought uniforms and leased his wrecker service. He talked to Alderman Henderson about a salary and mentioned $850 plus the $100 uniform allowance. He said Henderson thought that would be more than fair. Cotton testified he thought he was going to be paid after the first council meeting. He said he attended several council meetings thereafter when the salary question was raised. He testified he was told to get this and that, and it was not made clear to him that he was not going to be paid. When asked whether he was under the impression he would be paid even after the city council repeatedly refused to authorize a deputy’s salary, Cotton responded, “maybe I was having delusion. . .” An alderman at one of the council meetings asked Cotton if he would be willing to accept $160, and Cotton responded with a question to the alderman, “could he live on a hundred sixty?” Cotton said he was under the impression, from talking to Manley, that the budget would allow a salary of $850.

Cotton essentially testified that the council never told him anything, but he continued to work full time until September 9, 1985, when he got other employment. He was never paid anything by the city. During this time Cotton said he often worked as many as 60 hours a week, used his own automobile and paid for the gas. He conceded that the city council did not tell him they would reimburse him for the gas.

It was stipulated there was no ordinance passed authorizing a salary for Cotton.

Alderman Garrett testified that he explained to Marshal Manley at the first city council meeting after Cotton was sworn in that there was not sufficient money in the budget for a full time deputy. Garrett also testified that he told Cotton there was insufficient money in the budget for a full time deputy.

The city clerk testified that Cotton wrote only one ticket in his name during the period of time in question. On all other tickets, Manley was the arresting officer of record with Cotton signing his name beside Manley’s.

Cotton’s legal argument, which was accepted by the trial judge, was that Manley, the marshal, was the agent of the city and Cotton was the subagent. The council, by its action or failure to act, ratified Cotton’s employment and owed him compensation. Cotton concedes that the council has the authority to set the salary by ordinance; but at the same time, he argues the council could not remain silent, allowing him to work. He contends that the city should have at least passed an ordinance or resolution declaring Cotton was a volunteer and that it did not want his services.

The trial judge instructed the jury that “The sole issue for you to determine is whether there was an affirmative act or some negative act by the city council, which of itself would amount to an approval of the employment of the plaintiff, Gene Cotton.”

At the close of the evidence, the city moved for a directed verdict. It should have been granted. The trial judge erred in submitting this case to the jury. Legal disputes involving salary disagreements are not uncommon between city marshals and city councils. Horton v. City of Marshall, 227 Ark. 141, 296 S.W.2d 418 (1956). If the city marshal is elected, he is an independent public official. An elected marshal cannot be fired by the mayor or city council. See Ark. Stat. Ann. §19-1103. See also City of Augusta v. Angela, 225 Ark. 884, 286 S.W.2d 321 (1956). If a marshal is appointed by the mayor with the consent of the council, pursuant to Ark. Stat. Ann. § 19-1103.2, the marshal can be fired by the mayor with the consent of the council. Kennedy v. Garner, 230 Ark. 698, 326 S.W.2d 810 (1959). A marshal is compensated in one of two ways, either by fees collected for certain services performed pursuant to Ark. Stat. Ann. §12-1722 (Supp. 1985) or by a salary from the city council or both. Conner v. Burnett, 216 Ark. 559, 226 S.W.2d 984 (1950); City of El Dorado v. Faulkner, 107 Ark. 455, 155 S.W. 516 (1913). If a marshal is not paid a salary, his compensation is the fees authorized by Ark. Stat. Ann. § 12-1711. If the marshal is paid a salary, the city council cannot increase it nor diminish it during his term of office. Ark. Stat. Ann. § 19-907 (Repl. 1980); City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954). In Binam the city council passed a salary ordinance after the marshal was sworn in, and we held it void.

In this case the city marshal was an elected, independent public officer who was authorized to appoint one or more deputies without the approval of the city council. Manley appointed Cotton pursuant to the statute. Ark. Stat. Ann. § 19-1104. That was his exclusive prerogative. However, it was the exclusive responsibility of the city council, the legislative body of the city, to determine whether any salary would be paid. Czech v. Baer, 283 Ark. 457, 667 S.W.2d 833 (1984). The marshal could not set nor appropriate the salary nor could he be delegated the right to set salaries. Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

In City of El Dorado v. Faulkner, supra, a deputy marshal sued for back pay alleging an ordinance or resolution was passed fixing his salary. He could not produce the ordinance and offered parol testimony. We said:

The burden was upon the plaintiff to prove the existence of an ordinance obligating the city to pay him a salary as deputy marshal for, in the absence of such an ordinance, he is, under the statute, entitled to ‘receive the like fees as sheriffs and constables.’

The case before us is virtually identical. The only difference is Cotton’s legal theory. At first he sued for compensation under Ark. Stat. Ann. § 19-1104. That statute does not authorize a salary. Then Cotton amended his complaint alleging that the city marshal was the agent of the city, Cotton was the subagent and as subagent he was entitled to compensation since the city had accepted the “fruits of said agency by collecting and retaining fines and other monies forthcoming from Plaintiff’s written citations.”

Cotton abandoned any claim for statutory fees in the course of the trial and asked the court to instruct the jury under the theory of agency and implied contract law.

The appellee relies on Texarkana v. Friedell, 82 Ark. 531, 102 S.W. 374 (1907), for the principle that a city may ratify an agent’s unauthorized acts (Manley being the agent who hired Cotton). In Friedell the city attorney employed another attorney to help him in a lawsuit. The other attorney, Friedell, told the city attorney, the mayor, and four members of the council he expected to be paid. We found the city was not liable since the city had not ratified the employment. We said:

Ratification, if at all, of the employment of appellee was by the city attorney, the mayor and the individual members of the council. This does not meet the requirements of the law, for the ratification must be by the principal or by authorized agents. Neither the mayor nor the city attorney was an authorized agent for the purpose of employing an attorney to assist the city attorney, and their assent or ratification lacks binding effect.
Knowledge by the individual members of the council, brought home to them by conversation on the street, could not be considered as knowledge of the principal, which is the city itself, represented by the council as its legislative body. It must act as a body, and cannot be bound by individual acts or knowledge brought home to individual members.

Manley was not the legal agent of the city, and the city had no duty to act in any way regarding Cotton’s appointment. There is no evidence that the council ever appointed Manley as its agent or legally ratified any of his actions. During one council meeting, one of the aldermen asked Cotton if he would be willing to accept $160 per month. He spurned the offer and that ended the matter. Ratification did not occur. Cotton volunteered his services and the motion for directed verdict should have been granted.

Reversed.

Purtle and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion notes that Mr. Cotton’s legal theory was one of implied contract, but it does not make a distinction between contract implied in law and contract implied in fact. In my view this matter was submitted to the jury on a theory of contract implied in law or quasi contract. Mr. Cotton’s claim is that the city accepted his services with knowledge that they were being provided by him and he should be compensated, not for some salary figure which might have been the subject of an ordinance, but for the value of his services.

It is said that the case of City of El Dorado v. Faulkner, 107 Ark. 455, 155 S.W. 516 (1913), is “virtually identical” to the one before us now except for the “legal theory” presented by Mr. Cotton. In my view, that difference is substantial. There, the claim was based on an allegation that an ordinance had been passed pursuant to which the claimant was entitled to salary. Here, no such claim is being made, rather the claimant seeks the value of his services, not on the basis of any ordinance or express contract, but because they were provided by him and accepted by the city.

In his opening statement, counsel for Mr. Cotton said the claim was for the value of the services rendered. The majority opinion correctly notes that instructions on agency and ratification were given; however, no mention is made of the court’s instruction number 16 which was: “Where labor or material is furnished by a party and no price is agreed upon, the law will imply an agreement to pay what it is worth.”

Mr. Cotton was appointed by the marshal, sworn in by the mayor of Greenbrier, and given an official City of Greenbrier identification card showing the oath he had taken to become assistant marshal. He purchased the necessary clothing and went to work. He appeared before numerous sessions of the city council which declined to vote up or- down on a salary for him. Unlike Texarkana v. Friedell, 82 Ark. 531, 102 S.W. 374 (1907), in this case we have no question of ratification resulting from the casual knowledge of various members of the council. Here the matter was presented officially to the council which “tabled” it from time to time, thus effectively stringing Mr. Cotton along all the while having official knowledge of his situation.

In my view, given these facts and the court’s instruction 16 permitting a finding of a contract implied in law, the jury’s verdict and the judgment based upon it should stand.

Purtle, J., joins in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Bill RHEA v. Jack HARRIS and RIVER VALLEY MARINA, INC.
    87-113
    737 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Brazil, Clawson & Adlong, by: William Clay Brazil, for appellant.

      Laser, Sharp & Mayes, P.A., for appellees.
   Darrell Hickman, Justice.

This is a suit over a 40 foot boat. The appellant, Bill Rhea, delivered his boat to the appellees, Jack Harris and River Valley Marina, Inc., for repairs. Rhea claimed the boat was worth $70,000 when it was delivered. The appellees testified the boat was worth $30,000 to $35,000 at the time it was delivered. After Harris removed the boat from the water, he discovered more damage to the boat than anticipated, mainly in the form of rot. Harris began repairing the boat, but the appellant ordered the repairs stopped before they were completed. Harris testified that the rot would continue until the rotting planks were replaced. When Rhea testified the boat was only worth $3,000, the appellees asked if he would take that for it; he said yes, and a $3,000 check was delivered and accepted by Rhea in court. The parties disagreed on what the damage consisted of and what should have been done. The resulting lawsuit went before a jury which resolved all disputes in favor of the appellees in the amount of $2,000.

The only issue on appeal is whether the evidence was sufficient to support the jury’s verdict. Actually, the only question to resolve is the credibility of the witnesses. Each party offered proof directly conflicting with that of the other.

On appeal we only look to see if there is substantial evidence to support the verdict, reviewing the evidence in a light most favorable to the appellee. We have done that and readily conclude the verdict should be upheld. Otis Elevator Co. v. Faulkner, 288 Ark. 344, 705 S.W.2d 428 (1986); E.I. Dupont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

The judgment is affirmed.

Glaze, J., not participating.


text:
    Sylvia ROUSE v. Jeffery GOODE
    87-76
    737 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Boyett, Morgan & Millar, P.A., by: Comer Boyett, Jr., for appellant.

      David A. Hodges, for appellee.
   Darrell Hickman, Justice.

The main issue in this case involves the impeachment of a witness with a prior inconsistent statement. The trial court allowed the appellee to introduce extrinsic evidence to impeach the testimony of the appellant after she admitted making the prior statement. We have held that this cannot be done; consequently, the judgment is reversed and the case remanded.

Sylvia Rouse was a passenger in a vehicle that was struck from the rear by a vehicle driven by Jeffery Goode. Rouse sued Goode for personal injuries suffered as a result of the accident. After the accident, Rouse was hospitalized on four separate occasions. The first two occasions were related to the accident. Apparently the last two were not; they were for bronchitis coupled with an ear infection, and sinusitus.

Before the trial commenced, the appellant’s attorney made a motion in limine that the appellee not be allowed to bring before the jury any evidence relating to the latter two hospitalizations. The appellee objected to the motion, stating that the evidence was relevant for impeachment purposes, if nothing else. The trial judge denied appellant’s motion in limine, refusing to exclude evidence of the latter two hospitalizations.

At trial the appellant offered no testimony nor questioned any witness, including appellant Rouse, about the two hospitalizations. Only two witnesses mentioned Rouse’s dizziness. However, the appellee cross-examined several of appellant’s witnesses about the hospitalizations, including the dizziness and ear trouble, and asked them if they thought the conditions were caused by the wreck. In addition, appellee cross-examined appellant’s physician, Dr. Tate, about Rouse’s last two hospitalizations, and he testified that they were unrelated to the wreck. He had mentioned only the first two hospitalizations on direct examination.

When Rouse testified, she did not mention the two hospitalizations or related problems on direct examination, nor did she make any statement inconsistent with the prior statement in issue. Instead, on cross-examination appellee’s attorney asked Rouse if she had made the statement in her deposition that she thought her ear problems and dizziness were caused by the wreck. Appellant admitted that she had made the statement but testified that she no longer believed those problems were caused by the accident.

Appellee’s attorney did not read the statement from appellant’s deposition into the record at this point but waited until the end of the trial.

The jury returned a verdict for Rouse in the amount of $5,000. Rouse appeals, contending that she was prejudiced in the eyes of the jury by all the evidence regarding the two irrelevant hospitalizations and her ear problems. She argues that her medical expenses alone totaled $6,123.59.

Appellant’s attorney objected numerous times, before, during, and after the trial to the introduction of any testimony regarding the two hospitalizations and appellant’s ear trouble. Appellee’s main purpose in presenting this evidence was to place appellant Rouse in a bad light before the jury by questioning her credibility.

Appellee argues that a deposition can be introduced for any purpose whatsoever under Rule 32(a)(2). This rule also states, however, that such testimony must be admissible under the rules of evidence.

The trial judge, in denying appellant’s motion for a new trial and judgment n.o.v., found that the evidence was admitted solely for the purpose of impeaching appellant, stating:

This evidence was expressly admitted by the Court as relevant evidence going to the credibility of plaintiff which the jury was entitled to consider, in light of plaintiffs prior statements in deposition.

We are faced with the following evidentiary question: a witness was asked on cross-examination if she had made a statement. She admitted that she had. Then, the statement and other evidence were introduced to prove she was unworthy of belief. Should the trial court have allowed this? The answer is no.

Before we adopted the Uniform Rules of Evidence, it was settled that once a witness admitted making a prior inconsistent statement, no other evidence could be introduced to prove that the statement was made. In Roberts v. State, 278 Ark. 556, 648 S.W.2d 44 (1983), the first case interpreting the new Uniform Rules of Evidence on this question, we held that the new rules had changed nothing. Extrinsic evidence still could not be introduced to prove a prior inconsistent statement, once the witness had admitted making it. That is not a universal rule, but it is the rule we decided to follow. See J. Weinstein, 3 Weinsteins Evidence § 613 (1987); 37 Ark. L. Rev. 688 (1983). We recently confirmed Roberts in Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987). In the case before us, appellant clearly admitted having made the prior inconsistent statement; therefore, the trial court should not have allowed appellee to bring in extrinsic evidence of the prior statement, nor evidence to prove the statement was incorrect.

Appellee cites Flynn v. McElroy Bank and Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985), a civil case, to support his argument that the extrinsic evidence was admissible to prove the prior inconsistent statement. We do not find Flynn applicable, because the witness in that case never admitted making a prior inconsistent statement. We have held that extrinsic evidence of the statement is proper in that situation. See Chisum v. State, 27 3 Ark. 1, 616 S.W.2d 728 (1981).

Another issue raised by the appellant concerns a photograph of appellee’s vehicle, which is in the custody of appellee’s attorney. Evidently, there was a misunderstanding during the trial as to whether the photograph could be introduced. On remand, we assume the dispute will be resolved.

Appellee alleges that the notice of appeal from the judgment was not filed timely. We have already denied a motion to dismiss the appeal, and upon review, we find that we have jurisdiction.

Reversed and remanded.

Glaze, J., not participating.

       The statement from the deposition was read to the jury as follows:
      Q. Did you think that the problem with your ear and inner ear you’re talking about is because of the wreck?
      A. Weil, I think so, because I never had no problem with my ears before. 1 never did have the earaches, even after I got married 1 never did have earaches. I never had earaches. 1 never had another aches in my life, and so, but since they put the tube in, my ears don’t bother me now unless I sneeze or something, and then they pop.


author: Robert H. Dudley, Justice.

text:
    Charles BRANT v. Curtis Eugene SORRELLS, Special Administrator of the Estate of Jeffrey Leonard Sorrells, Deceased
    87-117
    737 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Jones, Gilbreath, Jackson & Moll, by: Robert L. Jones, Jr. and Charles R. Garner, Jr., for appellant.

      Martin Vater, Karr & Hutchinson, by: Charles Karr, for appellee.
   Robert H. Dudley, Justice.

A jury returned a defendant’s verdict in this wrongful death case. The trial court granted the plaintiff’s motion for a new trial on the ground that the verdict was clearly against the preponderance of the evidence. We affirm.

On Monday night, at about 10:00 p.m., Jeff Sorrells, the nineteen year old victim, phoned Diana Brant, the defendant’s seventeen year old daughter, and said that he needed to talk to her, in person, about something very important. Jeff lived across the street, and he and Diana had been friends since childhood. Diana told Jeff that she would flash her bedroom light at midnight, and if he saw the light he could come to her window to talk. She testified that she had no intention of actually flashing her light, but just told him that to get him off the phone.

Diana went to bed around 10:30 p.m., shortly after talking with Jeff. About midnight, Diana was awakened by a knock at her window. She recognized Jeffs voice as he asked her to open the window. She continued to lie in her bed and did not move. She heard a noise, as if Jeff were trying to pry the screen off of her window. She felt a cold breeze, indicating the window was open, and got up to go to her parents’ bedroom.

Her parents were asleep, and the house was dark. She testified that she awakened her father and said, “Dad, Dad, Jeff is trying to get in my window.” Defendant’s wife confirmed that Diana spoke Jeffs name. The defendant, however, denied hearing Jeffs name mentioned at that time. The defendant got his pistol from under the mattress and headed for Diana’s room, despite Diana’s plea that he not take his weapon. Diana and her mother stayed in the parents’ bedroom. Diana heard her father say something which she thinks was, “Get your G_D_ass out of my house.” Then she heard her father fire the pistol. The next day Jeffs body was found nearby with a bullet wound in the back. The bullet had entered his left mid-back, traveled horizontally through his body, and exited his left mid-chest.

The defendant testified that as he entered Diana’s bedroom, he felt cold air on his legs indicating the window was open. There was no light in the room. He heard the rustling of window shades. He stepped around the corner of an abutment in the room and saw what looked like a head and part of an upper body creating an image on the window shade. He could see hands underneath the shade. By that time he was halfway into the room, continuing to approach the window, when he stepped on a beanbag and was thrown forward. The shadowy figure disappeared. Defendant testified that he grabbed the window shade, pulled it back, and the screen was pushed in. He said he just stuck the gun up and fired down to scare whoever it was. Defendant then leaned forward a little and saw a glimpse of someone heading toward the street. He testified that he had no reason to believe that he had hit the intruder when he fired his gun. Defendant told the police he thought he was shooting down into the ground. A subsequent search of the ground under the window with a metal detector did not reveal a bullet.

The trial judge, in granting a new trial, did not properly specify his reasons. Rule 16, Uniform Rules for Circuit and Chancery Courts. His order recites simply that the verdict “is clearly against the preponderance of the evidence.” Therefore, the burden is on the plaintiff, appellee, to show that the trial court did not err in granting the new trial. Rule 16, id. The plaintiff has met that burden.

The defendant, appellant, argues that if we affirm the trial court’s granting of a new trial we would be allowing the trial judge to substitute his view of the evidence for that of the jury and cites Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The argument is without merit. The trial judge may not take away the litigant’s right to a jury trial by substituting his view of the evidence for that of the jury; but, regardless of the rhetoric used, he may grant a new trial when a miscarriage of justice has occurred. Further, when the trial court finds such a miscarriage of justice, or a “verdict clearly against the preponderance of the evidence,” ARCP Rule 59(a)(6), and grants a new trial, we will affirm unless he has clearly abused his discretion. Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985). Here, the trial judge did not abuse his discretion because the overwhelming weight of evidence was that the defendant knew that a neighborhood boy was outside the window and the physical evidence shows that he shot the boy in the back.

Affirmed.

Newbern, J., not participating.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Lee Warren STEPHENS and Corley MOTEN v. Orville SAUNDERS and Ayleen SAUNDERS
    87-91
    737 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Wright, Lindsey & Jennings, for appellant.

      Norman M. Smith, for appellee.
   Robert H. Dudley, Justice.

This action for personal injuries and property damage arises from a collision between an automobile occupied by appellees, Orville and Ayleen Saunders, who were the plaintiffs below, and a tractor-trailer rig owned by appellant Lee Warren Stephens and driven by appellant Corley Moten, who were the defendants below. The jury’s verdict was in favor of the defendants. The trial judge granted the plaintiffs’ motion for a new trial, finding the verdict to be clearly against the preponderance of the evidence. ARCP Rule 59(a)(6); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The only question is whether the trial judge’s ruling was an abuse of discretion. The trial judge did not abuse his discretion and, accordingly, we affirm.

The trial judge, in granting a new trial, did not properly specify his reasons. Rule 16, Uniform Rules for Circuit and Chancery Courts. His order recites simply that the verdict “is clearly against the preponderance of the evidence.” Therefore, the burden is on the plaintiffs, appellees, to show that the trial court did not err in granting the new trial. Rule 16, id. The appellees have met that burden.

At the time of the accident on the White River Bridge near Clarendon, a crew from the Arkansas Highway and Transportation Department was doing maintenance work in the northbound lane of the bridge. Because of that work, traffic on the bridge could travel only in the southbound lane. There was conflicting testimony about whether the work crew had posted signs warning of the bridge maintenance work ahead. The plaintiffs, who were traveling south, were waved through on the southbound lane by a flagman who was a member of the work crew. At about the same time, defendant Moten, who was driving in defendant Stephen’s rig which was loaded with 73,000 pounds of grain, was heading toward the bridge in the northbound lane of traffic. Defendant Moten came upon three vehicles stopped in his northbound lane of traffic. Realizing that he would not be able to stop in his lane without running into those vehicles, he crossed over the double yellow line, entered the wrong lane of traffic, traveled 650 feet up the incline of the bridge, and crashed head-on into the plaintiffs’ car. The force was such that the plaintiffs’ car was pushed backwards 211 feet.

On appeal, defendant Moten contends that there was substantial evidence from which the jury could have found that he was keeping a proper lookout, was using ordinary care to keep his rig under control, and was faced with a sudden emergency. The substantial evidence, he argues, is the testimony that he had no warning of the work on the bridge until he reached the mouth of the bridge, that another vehicle quickly pulled in front of him forcing him over into the wrong lane, and that photographs tend to establish that his view of the bridge was obscured by trees.

Even though his testimony and arguments were apparently accepted by the jury, they are so much at variance with the physical evidence and the testimony of the other witnesses that the trial judge did not act improvidently or abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. While I would not affirm this case merely because a great variance exists between the testimony of the opposing parties and witnesses, I do agree that the appellants’ claim that they were keeping a proper lookout and using ordinary care is in conflict with the physical evidence. Because I cannot reconcile appellants’ story and that of their witness, Ms. Bock, with the physical evidence presented, I therefore cannot say the trial judge abused his discretion in ruling the jury verdict was clearly against the evidence.


author: Steele Hays, Justice.

text:
    George SCHICHTL d/b/a GEORGE’S AUTOMOTIVE REPAIR v. James SLACK
    87-90
    737 S.W.2d 628
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Wright, Lindsey & Jennings, for appellant.

      James F. Swindoll, P.A., for appellee.
   Steele Hays, Justice.

Appellee James Slack filed suit against appellant George Schichtl for negligently installing a new motor and rebuilt transmission in Slack’s pickup truck. The complaint alleged negligent repair of the transmission, failure to repair defects, failure to warn of dangers, and failure to exercise ordinary care under the circumstances. Soon after the work was performed the truck caught fire and burned. The jury upheld Slack’s claim by a general verdict and awarded $7,719.13 for the truck and tools destroyed by the fire.

On the morning of trial Schichtl filed a motion in limine to exclude any evidence or argument that Schichtl failed to warn Slack of the possibility of a fire from the combustion of transmission fluid boiling out onto the exhaust manifold, and in failing to warn Slack to use an external cooler. The trial judge asked for cases supporting that position and counsel answered, “I couldn’t find any cases.” The motion was denied and Schichtl has appealed. The only point for reversal is that the trial court erred in denying the motion in limine. We affirm.

The testimony established that James Slack had dealt with George Schichtl for some eight years in servicing Slack’s vehicles. Slack owned a 3,000 pound boat and had experienced problems with the transmission on his truck in towing the boat. Schichtl and Slack decided to put a larger engine and a transmission in the truck. The work was completed at a cost of $1,922.86 and the truck was delivered to Slack onJuly 11,1985.Between the initial delivery and the fire some three weeks later, Slack twice returned the truck to Schichtl because the engine was overheating and the transmission was making a roaring noise. Schichtl attributed the noise in the transmission to the front pump gears not meshing properly. The other problem he attributed to a faulty sending unit, which only made it appear the engine was overheating. He testified that the cause of the fire was transmission fluid boiling out of the dipstick onto the manifold and igniting; he said, “As a mechanic you see that situation and fire is a real danger. I didn’t tell Mr. Slack about the fire danger but I knew it existed.” Schichtl never told Slack there was any limit on what he could pull “except common sense.” Slack testified when he drove the truck after picking it up the second time the temperature was still running hot.

On the morning of July 30 Slack left Conway for Pine Bluff towing a party barge, weighing about 1,600 pounds. At Redfield a passing motorist signaled to him that flames were coming from the engine compartment. He managed to get out of the truck just before it was totally destroyed by fire. Slack testified he was never warned of the danger of fire and had no indication that a fire was going to occur. Moreover, he said, “George told me to disregard the temperature gauge because he didn’t have it hooked up right.”

George Schichtl cites us to numerous cases recognizing a duty to warn in certain situations but he has cited no authority for the proposition that, as a matter of law, he was under no duty to warn Slack either of the possibility of fire or the use of an external cooler. Schichtl argues correctly that whether a duty is owed is a question of law to be decided by the court. We fully agree. But ordinarily the answer depends on the final analysis on the bits and pieces of the evidence. As Prosser puts it, “Before any duty, or any standard of conduct, may be set, there must first be proof of facts which give rise to it; and once the standard is fixed, there must be proof that the actor has departed from it.” Prosser and Keeton on Torts (5th Edition), Chapter 6, p. 235. There is no real issue but that Schichtl owed Slack a duty to exercise ordinary care. The jury was instructed without objection on the general principles of negligence. In a similar scrutiny of the facts in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), we disagreed with the trial court, which had granted a directed verdict for the defendant, and concluded that there was a jury issue as to whether an employment agency had breached a duty to its clientele to exercise ordinary care for their protection from persons only pretending to be prospective employers.

Schichtl urges that because this is not a product liability case there could be no duty to warn. That argument overlooks an essential difference between common law liability based on negligence and the modern concept of product liability. In the latter, a manufacturer or supplier is liable by virtue of having placed a defective, unreasonably dangerous product on the market, irrespective of any knowledge of the dangerous character of the product. Whereas in liability based on negligence, whether one knew or should have known of a potential danger is a necessary constituent of fault. The common law has recognized a duty under such circumstances well before product liability was enacted in Arkansas in 1973. See Green v. Equitable Powder Mfg. Co., 95 F.Supp. 127 (1951) and Dulin v. Circle F. Industries, Inc., 558 F.2d 456 (1977).

We need not decide whether there was a duty under the circumstances of this case, because we do not agree that a motion in limine was the proper means of testing an entire theory of law advanced by the plaintiff. That can be accomplished by a motion under ARCP Rule 12(b)(6), for example, with a supporting brief of legal authorities, or by proper objection to the evidence itself and by a motion for a directed verdict if the plaintiffs case is seen as resting on a faulty legal theory. Schichtl twice moved for a directed verdict, but he has not asked that we review those denials on appeal and they are waived.

Appellee points out that no objection was made when evidence was offered with respect to a lack of warning, urging that any error is waived. But in Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981),we said that where a motion in limine is made to specific evidence, and denied, the objection is preserved. We have not departed from that position, but we have pointed out that motions in limine are not to be used as a sweeping means of testing issues of law. Such motions are to be used to prevent some specific matter, perhaps inflammatory, from being interjected prior to the trial court’s having decided on its admissibility outside the hearing of the jury. Kitchens v. State, 271 Ark. l, 607 S.W.2d 345 (1980); Arkansas State Highway Comm. v. Pulaski Inv. Co., 272 Ark. 389, 614 S.W.2d 675 (1981).

In Kitchens v. State we refused to reverse the denial of a vague motion in limine which, like this one, was filed without legal authority on the morning of trial. We cited Bridges v. City of Richardson, 349 S.W.2d 644 (Tex. Civ. App. 1961) where it was said that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated testimony so that the court may intelligently act on such motions. Here, the trial judge knew nothing of the case except as may have been revealed by the pleadings or the brief argument in chambers. Yet he was asked to rule that Schichtl was under no duty to warn Slack of the possibility of fire no matter what the circumstances of the case. Without some legal authority supporting that proposal, we do not regard it as error for the trial court to refuse to grant a motion in limine. In Lewis v. Buena Vista Mutual Ins. Assn, 183 N.W.2d 198 (Iowa, 1971), also cited approvingly in Kitchens, the Iowa Supreme Court described the purpose of motions in limine:

The motion in limine is a useful tool, but care must be exercised to avoid indiscriminate application of it lest parties be prevented from even trying to prove their contentions. That a plaintiff may have a thin case or a defendant a tenuous defense is ordinarily insufficient justification for prohibiting such party from trying to establish the contention. Nor should a party ordinarily be required to try a case or defense twice — once outside the jury’s presence to satisfy the trial court of its sufficiency and then again before the jury. Moreover, the motion in limine is not ordinarily employed to choke off an entire claim or defense, as it was here regarding arson. Rather, it is usually used to prohibit mention of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been shown out of the hearing of the jury.

The judgment appealed from is affirmed.


author: David Newbern, Justice.

text:
    J.T. BLACKMON, M.D. v. James LANGLEY
    87-108
    737 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Atchley, Russell, Waldrop & Hlavinka, by: Victor Hlavinka, for appellant.

      Perroni, Rauls & Looney, P.A., by: Samuel A. Perroni', and Wilson, Engstrom, Corum & Dudley, by: William R. Wilson, Jr., for appellee.
   David Newbern, Justice.

This is a medical malpractice case. The appellant, Dr. J.T. Blackmon, contends it was error to submit to the jury the question whether his alleged negligence in failing to inform the appellee, James Langley, of an x-ray showing lung cancer was the proximate cause of Mr. Langley’s alleged pain, suffering, mental anguish, lost wages, and lost earning capacity. Dr. Blackmon’s argument is that because the evidence showed that Mr. Langley had less than a 50% chance of survival at the time the alleged negligence occurred, his alleged negligence could not be regarded as the proximate cause of injury to Mr. Langley. We hold it was proper to submit the issue to the jury, and thus we affirm the judgment based on the verdict in favor of Langley.

When Dr. Blackmon examined Mr. Langley in September, 1984, for an unrelated complaint, a chest x-ray was done. It showed a mass of three by four centimeters in Langley’s left lung. Mr. Langley alleged, and testified, that Dr. Blackmon said nothing to him about the mass. Dr. Blackmon contended that he had told Mr. Langley about it and had advised him that he needed additional diagnostic testing because of it to determine what the mass was.

In April, 1985, Mr. Langley sought treatment from another physician, and it was determined that the mass had trebled in size since the September, 1984, x-ray was made. It was malignant, and although surgery was performed, it is agreed that Langley has little chance of survival. The cancer has metastisized and spread to the brain.

In his complaint, Mr. Langley sought damages for pain, suffering, and mental anguish, as well as “additional” medical expense, loss of earnings, reduction in life expectancy, and a disfiguring injury. He presented expert testimony by a Dr. Desantis, the essence of which was that Mr. Langley’s chance of survival for a five-year period was 40% in September, 1984, and that it was reduced to 18% in April of 1985. Dr. Blackmon presented other expert testimony which buttressed the conclusion that Mr. Langley had a less than 50% chance of survival even in September, 1984.

Mr. Langley testified to the fact that, because of his inability to work since learning of his diagnosis, he had to give up his business enterprises, and is now receiving a disability allowance. He told of vomiting “all night,” for days and weeks at a time. Mrs. Langley testified that she had been with her husband through his surgery and chemotherapy experiences and that her husband had appeared to be in “tremendous pain.”

Lost chance

Dr. Blackmon cites Section 433B of the Restatement (Second) of Torts, Comment (b), which says it is essential to recovery that there be “. . . evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.” (Emphasis added.) He cites “lost chance” of survival cases in which the event was death, the action brought was one for wrongful death, and the courts held that, because at the time of the alleged negligence the victim had a 50% or less chance of survival, it was not probable that the death was caused by the negligence. Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St. 2d 242, 272 N.E.2d 97 (1971); Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984). He then asks us to apply, by analogy, those cases to the one before us now in which the event is composed of the pain, suffering, and loss of wages of a living human being who contends this composite event was brought on because the early detection of his cancerous condition was not made known to him. Even if we agreed with the theory expressed in the Cooper and Gooding wrongful death cases, and we are not at all certain we do, we would not apply it here.

The jury was instructed, properly, that if it found that Mr. Langley’s evidence showed he sustained damages due to Dr. Blackmon’s negligence it should find in favor of Mr. Langley. It was instructed with the proper definition of proximate cause, and then told that if its decision were in favor of Mr. Langley it should fix an amount of money to compensate him for his injuries, pain and suffering, mental anguish, and the present value of any loss of ability to earn in the future. Then the court instructed the jury, again properly, that it could not award damages for any pain, mental anguish, disability, loss of earnings or earning capacity that “. . . have arisen because of his original ailment since Dr. Blackmon is chargeable only for the damages, if any, that naturally follow from any delay in the treatment of James Langley’s lung cancer that might have been proximately caused by negligence of Dr. Blackmon.”

It is clear to us that the jury found, in accordance with these standard instructions, that Mr. Langley suffered more and lost more as a result of Dr. Blackmon’s conduct than he would have suffered or lost had he known to obtain treatment for his cancer when it was discovered rather than some seven or eight months later.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Larry GLEGHORN, et ux v. FORD MOTOR CREDIT COMPANY
    87-66
    737 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987
    [Rehearing denied November 23, 1987.]

      David E. Smith and Meredith Wineland, for appellants.

      Smith, Smith & Duke, by: W.R. Nixon, Jr., P.A., for appellee.

      Purtle, J., not participating; Hays, J., would grant rehearing.

   David Newbern, Justice.

Larry and Linda Gleghorn sued Ford Motor Credit Company (FMC) seeking the constitutional penalty of double interest on a contract they alleged to be usurious. Summary judgment was granted to FMC. We must reverse and remand the case because the motion for summary judgment was not supported as required by Ark. R. Civ. P. 56(c).

The Gleghorns purchased a Ford Bronco. Their contract provided an interest rate of 13.9% per annum on the unpaid balance. The contract was executed after a chancery court had interpreted Amendment 60 to the Arkansas Constitution as permitting an interest rate as high as 17%. However, the contract was executed before this court reversed that decision, and held that Amendment 60 would permit no interest rate higher than 5% above the federal discount rate. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). Apparently 13.9% was more than 5% above the federal discount rate on the date in question, as FMC did not contend to the contrary. Rather, FMC answered the Gleghorns’ complaint by alleging that the contract had been made in good faith in conformity with the chancery court decision.

FMC moved for summary judgment and attached a copy of the chancellor’s ruling in the Bishop case, arguing that there was no remaining genuine issue of material fact because Ark. Stat. Ann. § 1-205 (Repl. 1976) provides:

Whenever, by the decision of any circuit court, a construction may be given to any penal or other statute, every act done in good faith in conformity with such construction after the making of such decision, and before the reversal thereof by the Supreme Court, shall be so far valid that the party doing such act shall not be liable to any penalty or forfeiture for any such act that shall have been adjudged lawful by such decision of the circuit court.

Although the statute refers only to decisions of circuit courts, it applies equally with respect to decisions of the chancery courts. See Wiseman v. Phillips, 191 Ark. 63, 84 S.W.2d 91 (1935). The Gleghorns have not questioned whether the reference in the statute to “construction. . . given to any penal or other statute,” includes construction given to a constitutional amendment.

The evidence submitted in favor of granting a motion for summary judgment is to be viewed most favorably to the party resisting the motion with doubts being resolved against the moving party. Township Builders, Inc. v. Kraus Construction Co., 286 Ark. 487, 696 S.W.2d 308 (1985); Leigh Winham, Inc. v. Reynolds Insurance Agency, 279 Ark. 317, 651 S.W.2d 74 (1983).

Attaching a copy of the chancellor’s decision in the Bishop case to its motion for summary judgment demonstrated that the contract under consideration here was “in conformity” with that decision, or at least not in violation of it. However, nothing presented by FMC addressed that part of the statute requiring that the entering into the contract was an “act done in good faith” in conformity with that decision. As the appellants point out, the burden is on the moving party to establish that its motion for summary judgment supports a ruling that there is no remaining factual issue. Lee v. John Doe, 274 Ark. 467, 626 S.W.2d 353 (1981). It was not done in this case.

In the first point addressed in its brief, FMC argues that the contract need only be in conformity with the prior decision of the chancery court. However, in oral argument, counsel for FMC agreed that the “in good faith” language of the statute need not be ignored by us, but must be reckoned with. Counsel pointed out that the Gleghorns, upon seeking rehearing of the circuit judge’s decision in this case, placed in the record testimony from another trial given by a Mr. Halstein, an FMC official, showing that FMC acted in good faith. While we find that Mr. Halstein testified about a number of matters concerning contracts between Arkansas consumers and FMC, and noted that the contracts had been revised after the chancellor’s decision in the Bishop case had been reversed, nothing Mr. Halstein said addressed whether this contract, or any other contract, was conformed to the chancellor’s decision in good faith.

FMC also argues under its second point that we should not read into the statute words which would require a showing that there was “reliance” upon the chancellor’s order. The argument seems to be that as long as the contract was entered in good faith and conformed to the chancellor’s decision, that is enough, and that FMC is not required to show a good faith reliance on the decision in order to avoid the penalty.

In Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 459 (1936), taxpayers sought an injunction against the collection of taxes levied by the commissioner of revenues who demurred to the complaint. The taxes in question were the same as those of which the chancellor in Wiseman v. Phillips, supra, had enjoined collection; a decree which was then reversed in this court. The taxpayers in Wiseman v. Gillioz, supra, contended they had relied on the chancellor’s decision in Wiseman v. Phillips, supra; however, the pleadings apparently showed that all the contracts in question were made after the reversal. In holding that a demurrer should have been sustained we said:

Of course the act was effective as to the parties of that suit when the decision became final, but the statute says, “acts done in good faith” before the reversal by the Supreme Court. All the contracts of appellees were made after June 3d. How can it be said that they were made in good faith, relying on the construction of the chancery court, after it had been reversed by the Supreme Court?
What the parties did, according to their own statements, was to make contracts after the case had been reversed by this court. To be sure, it did not become final immediately, but it was notice to the appellees that the case was reversed, and it could hardly be said that one could act in good faith, relying on the decision of the chancery court, after it has been reversed by this court. [ 192 Ark. at 950, 96 S.W.2d at 463].

It is thus clear that although the statute does not say “act done in good faith reliance upon such construction,” this court has inferred that the words “act done in good faith in conformity with such construction” mean the same thing. The remaining genuine issue of material fact then is whether the act of FMC in charging 13.9% interest on this contract was done in good faith reliance on the chancellor’s decision in the Bishop case.

Statements in the dissenting opinion show a misunderstanding of summary judgment procedure. It is the obligation of the moving party to show that there is no remaining genuine issue of material fact. Ark. R. Civ. P. 56(c). Until the moving party has met that obligation, the failure of the responding party to make a showing to the contrary, in this case a showing of “bad faith,” is irrelevant. The dissenting opinion also suggests it is a waste of time to send the case back only to have the motion renewed with a proper showing of good faith reliance on the statute. While we might suspect, perhaps through clairvoyance, that there is evidence available to show good faith reliance on the statute, it is not yet before us, and we cannot set a precedent of reaching conclusions based upon nothing. The dissenting opinion may be correct in recognizing that other contracts entered by FMC before the reversal are irrelevant to the question of good faith, but it fails to recognize the irrelevancy to the issue before us of the fact that FMC revised its contracts after we reversed the chancellor’s decision.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court reverses this case based upon its belief that a genuine issue of material fact exists that must be resolved below. With all due respect, I could not disagree stronger, and would suggest if this is not a case for summary judgment, then none exists. Perhaps, stung a bit by this dissent, the majority opines I misunderstand summary judgment procedure. While not a professed expert on the subject, I would hope our main difference in this matter is one more on the law and what evidence we believe is necessary when determining if a material factual dispute exists than it is one concerning a misunderstanding or ignorance of summary judgment procedure. Be that as it may, the reader may decide.

In this appeal, we received skillful arguments from both sides; so skillful, I believe, that this court has bought a red herring. For example, Ark. Stat. Ann. § 1-205 (Repl. 1976) is the controlling law here when determining whether a material fact issue exists and whether summary judgment should have been granted below. Under that statute, when a district court construes any statute, including a penal one, a person who acts in good faith conformity with that court’s statutory construction cannot be liable for any penalty proscribed by that statute. That is exactly what occurred here. On March 12, 1983, Judge Bullion, in construing Amendment 60 to the Arkansas Constitution, ruled the lawful interest rate on consumer contracts is 17% per year, regardless of what the Federal Reserve Discount Rate might be. On July 1,1983, appellants purchased a vehicle from One Moore Ford, signing a retail installment contract which indisputably conformed with Judge Bullion’s March 12th ruling. On July 11, 1983, this court issued an opinion, reversing Judge Bullion’s decision and declaring the maximum amount of interest a lender can charge on consumer loans is the lesser of 17% or 5% above the Federal Reserve Discount Rate. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983).

The foregoing evidence encompasses the only relevant events necessary to decide this case. Nonetheless, appellants seize on the term “good faith” employed in § 1-205, and, as one would expect, they argue proof of good faith necessarily requires a factual determination, which has not been resolved in this case. Appellants then proceed to weave their own good faith issue by introducing consumer contracts appellee used with other customers and executed before Judge Bullion’s decision. The purpose? The appellants say those other contracts show the appellee was not really relying on Judge Bullion’s decision when entering into its contract with them because it employed the same consumer contract both before and after Bullion’s decision. Assuming arguendo this to be true, I fail to see what difference any of that makes to the case at hand.

Clearly, the parties’ contract here wholly conformed with Judge Bullion’s decision and the parties entered into their contract after the Bullion decision and before it was reversed. Appellants submit not one bit of evidence that bad faith was involved on appellee’s part. The appellee, on the other hand, did submit all that was necessary to support its motion and to meet its burden: (1) the parties’ contract, which was dated and contained all the necessary information concerning their transaction and (2) a copy of Judge Bullion’s March 12, 1983, decision. All the trial court had to do was read the pleadings, attachments, motions and responses to decide if the parties’ contract conformed with Judge Bullion’s decision.

The consumer contracts the appellants argue in this cause, I submit, have no relevance and do nothing more than divert this court’s attention from the real, material issue involved: whether the contract now before us is in conformity with Judge Bullion’s construction of Amendment 60. Even appellants do not argue their contract failed to conform; they merely contend “the [trial] court was in no position to state appellee acted in good faith upon relying on the [chancellor’s] decision.”

The majority dilutes the importance of whether the parties’ contract was in conformity with Judge Bullion’s decision, but rather returns this case to determine appellee’s mind set at the time the contract was signed. I simply fail to see the significance or relevance of such an endeavor. On remand, the trial court will ask, “Did you, appellee, rely upon Judge Bullion’s March 1983 decision when executing the contract with appellants, and did you do so in good faith?” Of course, the answer will be yes. Besides being a waste of judicial time, I believe it is entirely irrelevant. After the appellee met its burden, the appellants’ so-called good-faith reliance issue, in my opinion, was (and is) in reality a non-issue — or at least an immaterial one.

Appellee contracted with appellants after and in conformity with Judge Bullion’s decision, and immediately reformed the contract to conform with the supreme court’s decision overturning the lower court’s decision. There being no dispute to these facts, this court should affirm the trial court’s granting of summary judgment, barring the penalties provided for usurious contracts under Amendment 60.

Hickman and Hays, JJ., join in this dissent.


text:
    Carl WIDMER v. Raymond F. WIDMER, Executor of the Estate of Walter Widmer
    87-136
    737 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Appellant, pro se.

      Hardin, Jesson & Dawson, by: Bradley D. Jesson, for appellee.
   David Newbern, Justice.

Walter Widmer died testate, leaving 4216% of his estate to his son, Raymond F. Widmer, who was named executor. He also left 4216% of the estate to another son, Carl Widmer, who is the appellant. The remaining 15% of the estate was left to the children of Raymond F. Widmer. This appeal is from orders of the court surrounding the disposition of a parcel of land which was property of the estate. Carl Widmer contends that Raymond F. Widmer was obliged to allow him a right of first refusal to purchase the land as part of the obligation of an executor, who is also a devisee, to deal in good faith with another devisee. Carl Widmer asks us to hold the court erred in permitting a sale of the land without requiring that he have been allowed a right of first refusal. He also contends that Ark. Stat. Ann. § 62-2016 f. (Repl. 1971), which permits a fiduciary to appeal on behalf of the estate without supersedeas bond, is unconstitutional, and thus the court erred in requiring that he post a bond to stay the sale of the land pending appeal. Finally, he contends the court erred in not vacating the sale of the land because the purchaser has engaged in “interference.” We find no merit in any of these arguments, and thus we affirm.

The brothers were unable to agree on the manner of disposing of the land in question. On June 19, 1986, the court directed Raymond to make written proposals to Carl, within fifteen days, which Carl would then be required to answer within fifteen days. Raymond then was to have five days to respond to Carl’s answer. If the brothers were unable to agree within the stated time frame the court proposed to reinstate his prior order that the land be sold at public auction.

On July 1,1986, Raymond wrote to Carl and described three proposals. First, he suggested he (Raymond) could seek offers from “unrelated” third parties and sell to the highest bidder. Second, he suggested that they agree on a mutually acceptable cash sale price and that either Carl buy the interest of Raymond and his children or that Raymond buy Carl’s interest at that price. Third, he suggested that Carl could fix a price and give Raymond and his children the option of buying or selling the land at that price, or that Raymond would fix a price and give Carl the option of buying or selling at that price.

On July 16,1986, Carl wrote an essentially negative letter to Raymond, complaining that Raymond had not stated any offers he had received for the property and he had not otherwise mentioned “dollars and cents.”

Raymond responded on July 24,1986, that the only remaining alternative seemed to be to continue to seek offers from third parties and sell for the best offer. He noted that he had received an offer of $400,000, and asked Carl to advise him if Carl knew of anyone willing to pay more.

On August 2,1986, Raymond accepted an offer from Robert Westphal to purchase the land for $400,000. On August 5,1986, a realtor named Ernest Westfall offered $405,000 on behalf of his client, Chris Whitt. On August 13,1986, Raymond petitioned the court to be allowed to sell the land to Robert Westphal for $400,000 cash, but informed the court of the later, higher offer. On August 18,1986, Carl petitioned the court to require that the land be sold to him (Carl) for $400,000 contingent upon his ability to obtain financing. He also asked the court to establish how much of the $400,000 total price he would have to pay for the interest of Raymond and Raymond’s children.

Raymond responded to Carl’s petition by objecting on the basis that Carl was not making a timely offer on the land, and the contingency would cause delay. The court denied Raymond’s petition to be permitted to sell the land to Robert Westphal, and it denied Carl’s petition to be allowed to purchase at $400,000 subject to obtaining financing. The court, instead, ordered that the land be sold at public sale. Carl then moved to vacate the order directing a public sale, and the motion was overruled. The property was sold at public sale to Chris Whitt, who was the highest bidder, at a price of $465,000. The sale was confirmed by the court over Carl’s objection, and later, Carl’s motion to vacate the confirmation of the sale was overruled.

1. Executor’s good faith

Carl’s first argument is that the court erred in refusing to require that the land be sold to him at $400,000. He contends Raymond did not exercise the “ultimate good faith” toward him we have held to be required of an executor dealing with other heirs. Price V. Price, 258 Ark. 363, 527 S.W.2d 322 (1975). The argument here boils down to a contention that Raymond was obliged to name a price and give Carl the right of first refusal at that price before proceeding to sell the land to a third party. Carl cites no authority for that proposition, and we know of none. Nothing in the court’s order of June 19, 1986, required that Raymond name his price for the land. The proposals made in Raymond’s letter to Carl of July 1,1986, were palpably reasonable and demonstrated a fair effort to keep the land in the hands of one of the brothers. Neither at the trial court nor here has it been demonstrated that Raymond acted in other than “ultimate good faith,” and we find no error in the trial court’s refusal to require the land to be sold to Carl for $400,000.

2. Supersedeas bond

The point argued here is that the court erred in requiring Carl Widmer to post a bond superseding the court’s order that the land be sold at public sale. He argues that Ark. Stat. Ann. § 62-2016 f. (Repl. 1971) permits a fiduciary, such as an executor, to obtain a stay without bond and that this violates Carl’s right to due process and equal protection under the law, citing Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), in which we declared certain gender-based provisions of our probate code unconstitutional.

It is enough to say that the argument that the statute is unconstitutional was not made to the trial court. Even arguments based on constitutional claims must be raised in the trial court or they cannot be reviewed on appeal. Morris v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985); Pope County v. Streett, 284 Ark. 416, 682 S.W.2d 749 (1985).

3. Interference

Carl Widmer contends that the person who purchased the land at public sale, Chris Whitt, interfered in some manner in the proceedings, thus forcing the sale to occur, and thus it was error for the court to conduct and confirm the sale. There is neither citation of authority nor convincing argument in favor of this proposition that the court erred, thus we decline to consider the argument. Shannon v. Anderson, 269 Ark. 55, 598 S.W.2d 97 (1980); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: Per Curiam. John I. Purtle, Justice,

text:
    David ASKEY, et al. v. Warren O. KIMBROUGH, Chancellor
    87-289
    741 S.W.2d 624
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      John R. VanWinkle, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petition denied as the record does not show bail pending appeal has been denied by the chancellor.

Justice Purtle would grant.

John I. Purtle, Justice,

dissenting. What kind of relief will the appeal bring even if petitioners prevail? Obviously the ten day jail sentence will have been served long before we decide the case. I submit that there is no adequate form of relief except by this court, unless the trial court on its own initiative grants a stay or bond pending appeal. I would grant a stay of the order of contempt and expedite the briefing schedule.


author: Per Curiam. Darrell Hickman, Justice,

text:
    Brenda BURNETT v. STATE of Arkansas
    CR 85-44
    737 S.W.2d 631
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Brenda Burnett and her husband, Larry Burnett, were convicted of the first degree murder of their thirteen month old son, Larry Burnett, Jr., and sentenced to life imprisonment. We affirmed the convictions in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). Brenda Burnett filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petitioner’s allegations chiefly attack her trial counsel’s performance. She has filed an amendment to the petition claiming that in light of our decision in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), which overruled Burnett v. State, supra, to the extent it was inconsistent, she should be granted postconviction relief. The issue is whether Ark. R. Crim. P. 37.1 prescribes relief for one whose conviction has been affirmed in an opinion that has since, to some extent, been overruled. We hold that our decision in Midgett does not provide a basis for postconviction relief for the petitioner.

In Midgett we pointed out that in Burnett we had failed to give a reason to infer premeditation and deliberation from the circumstances. We expressly overruled the portions of Burnett which were inconsistent with our holding in Midgett. Our opinion in Midgett does no more with respect to the Burnett case than declare that we erred in finding sufficient facts to support the conclusion that the Burnetts acted with premeditation and deliberation. The petitioner’s claim is a direct attack on her conviction, and it does not fall within any of the grounds for relief cognizable under Rule 37. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).

The petitioner also alleges that she did not receive effective assistance of counsel. She claims that Joy Knapp, a frequent babysitter for Larry, Jr., admitted to the prosecutor several days before trial that the child’s stomach was injured when one of the older children “fell in the middle of Junior,” either on May 5th, 6th, and 7th. Larry died on May 11th. The petitioner argues that her counsel did not properly cross-examine Joy Knapp at trial to bring the statement out. She also alleges that a doctor said at a hearing, presumably before the petitioner’s trial, that the victim’s injury could have occurred two weeks before his death, and that counsel did not properly cross-examine the doctor at trial. The petitioner also claims that counsel prepared no “discernible defense.” The petitioner has not met the burden of establishing ineffective assistance of counsel with those allegations.

A claim of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. To prove ineffective assistance of counsel under tht Strickland standard, petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction resulted in a breakdown in the adversarial process which rendered the result unreliable. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner has the burden of overcoming that presumption by identifying specific acts and omissions of counsel which when viewed from counsel’s perspective at the time of trial could not have been the result of reasonable professional judgment. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that but for counsel’s conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra; see also Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Counsel here elicited testimony from a number of witnesses that the child had fallen several times, had been bitten by another child and could have been subjected to rough treatment by playmates. He also called a doctor and dentist in an effort to prove that the child’s injuries were not the result of abuse. The defendant is not entitled to have every possible witness testify, and the fact that a petitioner can allude to other potential witnesses is not in itself proof of counsel’s incompetence. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). The petitioner has offered nothing to show that the omission of any evidence from his trial created prejudice so pronounced as to have deprived him of a fair trial whose outcome cannot be relied on as just.

The petitioner also claims that there was prosecutorial misconduct in that the prosecutor did not disclose Knapp’s statement until just a few days before trial. This is an issue that could have been raised at trial. When an issue could have been raised on appeal, it is not a basis for a collateral attack under Rule 37 unless it presents a question so fundamental as to render the judgment of conviction absolutely void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). Aground sufficient to void a conviction is one so basic that the judgment is a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). The petitioner alludes to no proof that the prosecution deliberately withheld the statement. Furthermore, the defense presented evidence that the child could have been hurt by playmates. The allegation does not present an issue sufficient to render the conviction void.

The petitioner also alleges that trial counsel did not allow the necessary time to prepare for the trial. She bases this allegation primarily on the fact that counsel’s motion for a continuance was denied. The evidence given in support of the allegation consists of the failures noted above with regard to examination of witnesses and lack of a meaningful defense. Again, there is no merit to the allegations.

The petitioner alleges that in opening and closing arguments the prosecutor stated erroneous facts to the jury. The arguments are not in the transcript. The only statement the petitioner recalls is this one which she says was part of the State’s closing argument:

This is a case about two people that deliberately, over a period of weeks or months, proceeded to murder their thirteen-month-old son. We’ve shown how Brenda Burnett took the baby to Little Rock to the hospital instead of Conway which was closer causing a further delay in getting aid to the sick child. He went from being a normal, healthy child to being undernourished, neglected, and badly abused.

The petitioner gives no other factual support for her allegations with regard to the arguments. The petitioner has not made the slightest showing of prejudice. The burden is on the petitioner to provide facts to support his claims of prejudice. Jones v. State, 283 Ark. 363, 767 S.W.2d 738 (1984).

The petitioner claims her counsel was ineffective for failing to ask for a psychiatric evaluation. She states that her counsel and the prosecutor knew she had a nervous breakdown in late 1983. The petitioner who asserts her incompetence to stand trial for the first time in a petition for postconviction relief has the heavy burden of demonstrating with facts that she was not competent at the time of trial. The mere fact that she can document a history of mental illness or show that counsel could have argued incompetence, but chose not to do so, does not in itself entitle the petitioner to a new trial under Rule 37. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986).

The petitioner alleges that she was ineffectively represented on appeal. The allegation merely states counsel only appealed eleven points, that none were important, and that counsel did not present the facts to the court for the proper review. These conclusory allegations are not enough to show that counsel failed to raise some possibly meritorious issue. An attorney need not advance every argument urged by his client. See Jones v. Barnes, 457 U.S. 1104 (1982).

The petitioner makes several claims that were raised and disposed of on appeal. She alleges that she was denied a fair trial when the trial court refused to grant her request for a bill of particulars; that she was prejudiced by pretrial publicity and by the denial of a change of venue; and that the graphic photographs released to the news media and used at trial denied her a fair trial. Rule 37 does not provide an opportunity to reargue points settled on appeal. Swindler v. State, supra.

The petitioner alleges that the trial court erred when it excluded testimony of two witnesses for the defense on the ground that their testimony was hearsay and gave incomplete and misleading instructions to the jury on lesser included offenses to first degree murder. The petitioner also argues that the verdict forms were vague and that statements she made to the police during a pre-arrest interview should have been suppressed because she had not been informed of her constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to questioning. We find none of the allegations to be a ground for relief under Rule 37.

Each of the assertions constitutes a direct attack on the conviction which is not within the purview of our postconviction rule. Rule 37 affords a remedy when a sentence in a case was imposed in violation of the Constitution of the United States or this state or “is otherwise subject to collateral attack.” Swisher v. State, supra. The rule was not designed to permit a review of mere error in the conduct of the trial, and it is not a substitute for raising issues in the trial court in accordance with proper procedure. Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973). The issues raised by petitioner were either raised, or could have been raised, at trial and subsequently on appeal. The issues raised by the petitioner are not sufficient to establish that the judgment is void.

Finally, the petitioner claims that she should have been allowed access to the prosecutor’s files and that had she had that information, she could have presented a proper defense. Moreover she states that the prosecutor continues to refuse to give her copies. This is merely reargument of questions of the failure of her counsel to present a defense and of the prosecutor’s withholding of Joy Knapp’s statement. We find no merit to this point.

The petitioner asks for a copy of the transcript, files, records and docket sheets pertaining to her trial to enable her to “further prepare and amend” her petition. She states that these items contain exculpatory information, but she does not say what the exculpatory information is or why a copy of the record is necessary to amend the petition. The mere fact that a petitioner is indigent does not entitle her to a copy of the trial record at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). Before a motion for transcript will be granted, the petitioner must show that she has some reasonably compelling need for specific documentary evidence to support a particular ground for relief. See Chavez v Sigler, 438 F.2d 890 (8th Cir. 1971). The petitioner has not established a need for any specific documentary evidence.

Petition and motions denied.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. I believe the majority opinion in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), held that murder in the first degree could not be committed by “child abuse” regardless of the evidence.

I agree with the result reached but sympathize with the petitioner who will not comprehend how she can be guilty when the decision in her case has been overturned. She must seek relief in the federal courts or through clemency proceedings.

John I. Purtle, Justice, dissenting. Petitioner seeks permission from this Court to proceed in the trial court pursuant to Rule 37. She relies on our decision in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), in which we admitted error in our holding in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), because in Burnett we failed to state any reason to infer premeditation and deliberation from the circumstances. Petitioner is understandably concerned because she was the appellant in the Burnett decision.

The question presented is whether the petitioner should receive the same consideration we gave to the appellant in Midgett, which was decided after her case was affirmed. This is a question of first impression. There is no other avenue for relief that I know of which petitioner has available. Certainly the basis of this petition could not have been pursued on direct appeal nor may she proceed directly in the trial court without the permission of this Court.

I believe this is a matter which should be considered under Rule 37. Therefore, I would grant the petition to proceed in the trial court.


author: Per Curiam.

text:
    Eugene GARNER v. STATE of Arkansas
    737 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Eugene Garner, Jr. pleaded guilty to murder in the first degree in 1986 and was sentenced to forty years imprisonment. In 1987 he filed a pro se petition pursuant to Criminal Procedure Rule 37 seeking to vacate the plea. The circuit court denied relief in an order entered May 21,1987 from which no appeal was taken. Movant now requests permission to proceed with a belated appeal.

This court will grant a belated appeal from an order denying a petition for postconviction relief if the movant shows good cause for the failure to file a notice of appeal within thirty days of the date the order was entered. See Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985). The movant here explains that he did not file a notice of appeal because he is illiterate and the prison inmate who was assisting him with the Rule 37 petition failed to file a notice of appeal for him or tell him that one needed to be filed.

While there is no doubt that poorly educated persons have more difficulty following the Rules of Appellate Procedure than other appellants, a lack of knowledge of the rules in itself does not constitute good cause for failure to file a timely notice of appeal. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983). As we said in Grain, supra, if merely declaring ignorance of the rules of procedure were enough to excuse lack of compliance, it would be just as well to have no rules since an appellant could simply bypass the rules by claiming a lack of knowledge. Likewise, trusting another prison inmate for advice about the rules does not excuse the appellant from compliance. New inmates of the Arkansas Department of Correction are trained in the law and appellants who take the advice of the inmates who hold themselves out as legal advisers do so at their own risk.

Motion denied.


text:
    Timothy Ray HILL v. STATE of Arkansas
    737 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

The movant Timothy Ray Hill pleaded guilty to aggravated robbery in 1984 and was sentenced to ten years imprisonment. In 1986 he filed a pro se petition pursuant to Criminal Procedure Rule 37 seeking to vacate the plea. The circuit court denied relief in an order entered of record on December 1, 1986. No appeal was taken, and movant now requests permission to proceed with a belated appeal.

This court will grant a belated appeal from an order denying a petition for postconviction relief if the petitioner shows good cause for the failure to file a notice of appeal within thirty days of the date the order was entered. See Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985). The movant here does not contend that he was not aware that the petition had been denied and concedes that he was promptly provided a copy of the court’s order. He contends only that he was not aware that there was a right to appeal the denial of a Rule 37 petition and that he was “mentally and physically in no position when time for a notice expired” (sic).

Although Criminal Procedure Rule 36.4 provides that the trial judge must advise a convicted defendant of his right to a direct appeal of his conviction, there is no requirement under the constitution or the provisions of Rule 37 that a trial judge inform the unsuccessful petitioner in a collateral attack on the judgment that he may appeal. Simply put, a collateral attack on a judgment does not carry with it every procedural safeguard provided for a first appeal of the judgment of conviction.

Movant does not make plain why he was mentally and physically unprepared to file a notice of appeal, but it is clear that his lack of knowledge of the rules of procedure alone does not excuse him of his responsibility to conform to the rules. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983). We have consistently held that appellants even those proceeding pro se, are responsible for following the rules in perfecting an appeal. If merely declaring ignorance of the rules excused the need to file a timely notice of appeal, an appellant would feel little obligation to comply with appellate procedure. See Grain v. State, supra.

Motion denied.


author: Per curiam.

text:
    Scott A. MILLS v. STATE of Arkansas
    CR 87-129
    737 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Hale, Ward, Young, Green, Nixon, Jacobs & Hickey, by: Stephen R. Cobb, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per curiam.

Stephen Cobb petitions this court to be relieved as counsel for Scott A Mills. Cobb was appointed by the trial court to represent Mills in his appeal of the denial of a Rule 37 petition. Cobb researched the allegations and determined the appeal was meritless. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 11(h), attorneys have been required to file a brief setting out all issues which might support an appeal and explain why those issues have no merit prior to being relieved as counsel. Recently, the United States Supreme Court held the Anders procedures do not extend to collateral post-conviction petitions because there is no federal constitutional right to counsel in pursuing an appeal in a post-conviction proceeding. Pennsylvania v. Finley,_U.S__, 107 S. Ct__, 95 L. Ed. 2d 539 (1987).

A.R.Cr.P. Rule 37 provides that the trial court shall appoint counsel for an appeal to this court if post-conviction relief is denied. The attorney on appeal is required to follow all rules regarding direct appeals from the original judgment of conviction. If the attorney determines the appeal is without merit, he is required to file a “no merit” brief. Ark. Sup. Ct. R. 11(h).

Although we are cognizant of Finley, that decision does not affect our rules. We will continue to review the denial of Rule 37 petitions. Appointed counsel must file an appeal brief and if he determines the appeal is without merit, he must state his reasons. This procedure will safeguard the defendant’s right to an appeal and afford us a method to determine if the attorney is correct that the appeal is without merit. In light of the foregoing, we request the Supreme Court Committee on Rules of Pleading, Practice and Procedure in Criminal Cases to re-evaluate Rule 37 and determine if there are any alternative methods available that will alleviate the burden on appointed counsel but still safeguard the defendant’s right to an appeal from the denial of Rule 37 relief.

Motion denied.


text:
    Michael MONK a/k/a Al Capone v. STATE of Arkansas
    737 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered October 12, 1987

      Kline & Huddle, by: Marc Aaron Kline, for appellant.
    No response.
   Per Curiam.

Michael Monk, by his attorney, Marc Aaron Kline, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Monk will concede that it was his fault that the record was not filed, or if other good cause is shown, then, the motion will be granted. The present motion for rule on the clerk is denied.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Michael D. FITZHUGH v. STATE of Arkansas
    CR 87-78
    737 S.W.2d 638
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Denny Hyslip, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael D. Fitzhugh, was convicted of first degree murder and sentenced to life imprisonment. On appeal, Fitzhugh argues the trial judge did not use his discretion in sentencing, photographs and exhibits were improperly admitted, and a directed verdict should have been granted. We find these arguments are meritless and affirm.

On September 29, 1985, Fitzhugh hit Ruby Dugan, with whom he was living, in the head with a claw hammer and stabbed her four times in the chest resulting in her death. He wrapped her in a sheet, placed plastic bags beneath her body, dragged her to his bedroom floor and covered her with a blanket. He placed a cross by her forehead and a Bible at the door. The police discovered the body a few days later. Fitzhugh was picked up and taken to the police station where he confessed. After a jury trial, he was convicted of first degree murder and sentenced to life imprisonment, from which he now appeals.

Fitzhugh first argues the trial court failed to use discretion in sentencing him to life imprisonment, claiming the trial court followed the jury’s verdict without exercising discretion, which in turn, voids the sentence. Fitzhugh cites federal authority for his argument that the trial court’s failure to exercise discretion voids the sentence. Our courts do not sentence under the federal rules. It is clear from the record that the trial court complied with Ark. Stat. Ann. § 41-802 (Repl. 1977) and Ark. R. Crim. P. 36.4 in his sentencing procedures. Fitzhugh correctly notes that the trial court must exercise discretion in sentencing a defendant to consecutive or concurrent terms. See Ark. Stat. Ann. § 41-903 (Repl. 1977). However, this argument is not applicable to this case because Fitzhugh received only one life sentence.

The trial court’s pronouncement of Fitzhugh’s sentence cannot be characterized as merely mimicking the jury verdict. After the jury returned a guilty verdict and sentenced Fitzhugh to life, formal sentencing was scheduled for the following day. At that time, the trial judge stated he accepted the jury verdict, but then gave both the defense and the state an opportunity to be heard. After their remarks, the trial court pronounced sentence. Nothing could be more fair to the defendant.

Fitzhugh next contends the trial court erred in admitting two photographs into evidence inasmuch as the photographs’ probative value was outweighed by the danger of unfair prejudice. We disagree. The admissibility of photographs is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983). The fact that photographs may be inflammatory is not alone sufficient reason to exclude them. Inflammatory photographs are admissible in the discretion of the trial court if they tend to shed light on any issue or enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Watson v. State, supra; Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Hayes v. State, supra.

In this instance, the photographs were of the victim before and after the sheet had been unwrapped from her body and were used by a witness to help describe the crime scene. The black plastic bag in one of the photographs was sent to the crime lab to be examined for fingerprints. The latent fingerprint examiner testified that a fingerprint and palm print on the bag were Fitzhugh’s. Fitzhugh said he placed the bag under the victim and wrapped her in the sheet after he killed her. The sheet was pictured in the exhibit. The photographs further support Fitzhugh’s statement that he left the victim on the floor beside his bed. Fitzhugh stated that he stabbed the victim four times in the chest. One of the photographs shows the chest was wounded. Dr. Malak, the state medical examiner, testified four stab wounds in the chest were found and were a contributing cause of death. In sum, the photographs were useful in assisting the jury to understand the testimony depicting the crime scene and were certainly not so inflammatory as to prejudice the jury. The trial court did not abuse its discretion in admitting the pictures in evidence.

Fitzhugh’s third argument is that the trial court erred in refusing to grant a directed verdict on the ground of insufficient evidence. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982).

Fitzhugh confessed to the murder, stating that he got a claw hammer out of a closet, hit the victim in the forehead with the hammer, and stabbed her four times in the chest (he pointed out on his chest where he stabbed her). He admitted wrapping her in the sheet, placing plastic bags under her body, tying belts around the body, dragging her into his bedroom, placing her on the floor next to his bed, and covering her with a blanket, then placing a cross on her forehead and a Bible by the door. Fitzhugh further explained he cleaned the blood off the floor and threw the cloths in the shower tub because he did not want the police dogs to smell the blood. The next day, Fitzhugh made substantially the same statement, noting in addition, that he wiped the knife clean and put the hammer in a plastic bag and threw it in the dumpster by Pizza Hut. He further stated he gathered sheets and other items from the scene, put them in a double bag and placed it in the bushes by the railroad tracks.

Ark. Stat. Ann. § 43-2115 (Repl. 1977) provides: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.” An accused’s confession, along with other evidence, is sufficient to support a conviction. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). The other evidence required to accompany the confession is proof that the offense was committed by someone. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984).

Here, the victim suffered injuries to her head and chest. The medical examiner performed an autopsy on the body and testified that at least three blows were delivered to the head by a rounded heavy object, such as the head of a hammer. Four stab wounds were found in the center part of the chest. The cause of death was the head injuries and the stab wounds. The police found the bag containing the sheets where Fitzhugh said he placed it by the railroad tracks. Fitzhugh’s fingerprints were found on a black plastic bag found by the body at the scene. This evidence, combined with the confessions, sufficiently supports the conviction. Therefore, the trial court correctly denied the motion for a directed verdict.

Fitzhugh argues the confessions are not credible due to his mental incompetence and the different versions of his statement (he also denied any involvement with the crime). The jury has the duty to resolve questions of credibility in confessions. Kendal v. State, 292 Ark. 173, 729 S.W.2d 1 (1987). The jury also resolves the conflicting testimony regarding Fitzhugh’s mental competence. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Obviously, the jury resolved the conflicts against Fitzhugh.

For his last argument on appeal, Fitzhugh contends the trial court erred in allowing the admission of State’s Exhibits 12-17, which are state hospital records and psychiatric reports. Since Fitzhugh failed to abstract these exhibits, we will not consider the issue. Ark. Sup. Ct. R. 9.

As required by our Rule 11(f), we have reviewed all abstracted rulings adverse to Fitzhugh as well as the points raised on appeal and found no error.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result but do not join the opinion because it reads like a brief on behalf of the state.