author: Darrell Hickman, Justice. Robert H. Dudley, Justice,

text:
    Willie WARRIOR v. STATE of Arkansas
    CR 89-13
    772 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      James P. Massie, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Willie Warrior was convicted of delivering a controlled substance and sentenced to 40 years imprisonment. We affirm. His only argument for reversal is the trial judge should have compelled the state to disclose the identity of a confidential informant.

The state’s chief witness, Officer Robert Thomas, testified that a confidential informant was with him when he made a cocaine “buy” from the appellant. The appellant’s attorney asked him to disclose the name of the informant, and the officer refused. The appellant’s attorney then asked for a bench conference. It was at that point that the trial judge learned that the appellant had filed a motion for disclosure of the informant’s identity two days before the trial. However, the appellant’s attorney had not brought it to the court’s attention even though an opportunity existed. In fact the judge remarked:

Why didn’t you bring that up this morning, Mr. Massie? That’s why we have those 8:30 meetings. . . This is the first time I’ve seen it. . . [I] f you wanted the identity of the informant and it was something that was vital to your case, obviously you would have brought it to the Court’s attention before now so you could find out who it was and get the person here to testify.

The trial judge denied the motion evidently because it was untimely. We affirm since we cannot say the trial judge abused his discretion.

The state has the privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a violation of a law. A.R.E. Rule 509(a); see also A.R.Cr.P. Rule 17.5(b). But there is no reason for the state to invoke the privilege until the defense has requested disclosure of the informant’s identity. Once such a request is made and the privilege invoked, a hearing may be necessary to determine if the informant could provide relevant testimony. A.R.E. Rule 509(c). In other cases involving confidential informants, timely motions have been made and hearings held before trial has begun. See McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988); see also Roviaro v. U.S., 353 U.S. 53 (1957).

Absent surprise or other mitigating factors, the orderly procedures of a trial are best served by a preliminary ruling on this matter. See generally A.R.E. Rule 104(a). Here, the appellant does not claim surprise, did not request a continuance, and did not give a reason for failing to obtain a ruling prior to trial.

The court was under no obligation to bring the trial to a halt, hold a hearing and possibly postpone the trial to subpoena the informant when the appellant could have obtained a pretrial ruling that would have prevented such a delay. For these reasons, we cannot say the judge abused his discretion in denying the appellant’s motion.

Affirmed.

Purtle, Dudley and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. It is undisputed that the confidential informant was present and participated in the illegal transaction at issue in this case. During the cross-examination of an undercover police officer, appellant asked the name of the confidential informant. The witness refused to answer, and the court refused to compel an answer. The majority affirms that ruling because, it states, the question was untimely. I dissent.

The question asked on cross-examination was designed to produce relevant evidence since the only person, other than appellant, who could controvert the undercover officer’s testimony was the informer. A.R.E. Rule 402 provides in pertinent part: “All relevant evidence is admissible, except as otherwise provided by statute, or by these rules or by other rules applicable in the courts of this State.” One of the exceptions is the government informer’s privilege. That privilege is defined in Roviaro v. United States, 353 U.S. 53, 59 (1956), as follows:

What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254; In re Quarles and Butler, 158 U.S. 532; Vogel v. Gruaz, 110 U.S. 311, 316. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

We have adopted the government informer’s privilege. Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972); A.R.Cr.P. Rule 17.1(b). The privilege, which is an exception to the relevant evidence rule, gives way when, as here, the disclosure of an informer’s identity, or the contents of his communication, would be relevant and helpful to the defense of an accused. Roviaro v. United States, supra; Bennett v. State, supra; A.R.Cr.P. Rule 17.1(b). Preliminary questions regarding the existence of a privilege may be submitted to the trial court. A.R.E. Rule 104(a). Thus, the State, not the appellant, had the duty, if anyone did, to obtain a preliminary ruling that it could invoke the privilege.

There is no authority whatsoever for the majority opinion’s statement that the appellant was at fault for “failing to obtain a ruling prior to trial.” The majority opinion, in accepting the State’s argument, confuses a “ruling prior to trial” with a preliminary ruling. Under A.R.E. Rule 104(a), a trial judge is to make a preliminary ruling on questions involving qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence. This simply means that the judge preliminarily acts both as a trier of fact and the evaluator of legal standards in making a determination of admissibility of the evidence. Cotchett and Elkind, Federal Courtroom Evidence 18 (1986). It does not mean that the judge must make a ruling prior to trial, and the trial judge does not have the authority to require that such a ruling be made prior to trial. Accordingly, the trial judge erred in so ruling. Neither case cited by the majority, McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988), nor Roviaro v. United States, supra, holds that a defendant must file a motion prior to trial for the state to claim a privilege. Accordingly, I dissent.

Purtle and Newbern, JJ., join in this dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Harold HELTON v. Tonya Lacon FULLER and Murphy Fuller
    89-49
    772 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Guy Jones, Jr., P.A., for appellant.

      Huckaby, Munson, Rowlett & Tilley, P.A., by: James W. Tilley, for appellee.
   John I. Purtle, Justice.

The Faulkner County Circuit Court “sanctioned” attorney Guy H. Jones, Jr., for his failure to have his clients present for the taking of depositions and for his appearance at trial without being properly prepared. The sanctions imposed consisted of $250.00 plus expenses and attorney’s fees on the first matter and $500.00 plus expenses and attorney’s fees on the second. We affirm with respect to the sanctions imposed on the failure to properly respond to the notice to take depositions, but reverse with respect to the sanctions imposed on the failure to be prepared for trial.

Neither the parties’ briefs nor the record cite any authority under which the trial court acted with reference to the sanctions concerning the depositions. We must conclude that the action was taken pursuant to Arkansas Rules of Civil Procedure, Rule 37(a)(4) or 37(d). Nor have we been cited to specific or general authority for the action taken relating to being unprepared on the date the trial was to commence.

The appellees made a motion for sanctions pursuant to ARCP Rule 37. Rule 37(a)(4) reads:

(4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them, to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Rule 37(d):

If a party. . . fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, . . .the court in which the action is pending on motion may make such orders in regard to the failure as are just.... In lieu of any other order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The facts in this case are in considerable dispute, but facts are to be decided by the trial court in the absence of a jury. The trial court is acquainted with the parties and the circumstances surrounding this matter and is in a much better position than the appellate court to determine the credibility of the witnesses. We cannot say that the imposition of the sanctions concerning the failure to appear for the depositions was not in accordance with the preponderance of the evidence.

It is obvious that the present proceedings were not the only matters considered by the trial court. In imposing the sanctions the court stated:

I don’t know how to get your attention, Mr. Jones. You know I have tried every way in the world to get your attention. Contempt proceedings and the works, but it just can’t reach you, and I — you know, maybe it’s my fault.

The court was clearly acting within the scope of our rules concerning the taking of depositions. If sanctions were not authorized it would be difficult for trial judges to compel discovery and to otherwise manage their caseloads. The failure to properly respond to notice of a deposition was a matter which was properly considered by the trial judge upon the motion of the attorney for the appellee. Rule 37 authorizes the imposition of sanctions “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” The rule authorizes sanctions against the party to be deposed or his attorney if either fails to appear without just cause.

We find no authority under ARCP Rule 11 or Rule 37 which authorizes sanctions against an attorney for not being prepared for trial. However, such an abdication of responsibility could be the subject of a contempt proceeding or could be referred to the Supreme Court’s Committee on Professional Conduct. It could be the subject of a civil suit.

After a review of the record we are of the opinion that the trial court proceeded properly in imposing sanctions and expenses, including attorney’s fees, on the attorney for the failure of his clients to appear at the time and place notified for the taking of depositions. However, we are unable to find specific authority for imposing sanctions on the attorney because he was not prepared for trial. Therefore, the sanctions of $500 plus expenses and attorney’s fees relating to the failure to be prepared for trial are reversed.

Affirmed as modified.

Hickman, Newbern, and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. I concur. The majority opinion recites certain remarks by the trial judge and suggests that the attorney’s actions in proceedings unrelated to the present case were somehow relevant and sufficient to affirm the sanctions imposed against the attorney here. If this court had to rely upon unrelated proceedings to affirm the trial judge’s action in this case, I would reverse. Such is not the case. Since the majority opinion fails to discuss the facts that led to the imposition of sanctions, I briefly relate them in this concurrence. First, appellees, in proceeding below, were required to file a motion to compel appellant’s attorney to answer certain written interrogatories. Second, appellees attempted to schedule depositions in this matter and were rebuffed by appellant’s counsel’s objection to notice. Third, once depositions were scheduled, neither of counsel’s two witnesses showed. One witness, Mr. Donahue, testified the attorney notified Donahue of the deposition only minutes before the deposition was scheduled to take place. The other witness, the appellant, offered no explanation why he did not attend the deposition. Based upon these facts, I cannot say the trial judge abused his discretion in imposing the sanctions he did.

Concerning the trial judge’s imposition of sanctions concerning the attorney being unprepared for trial, I again agree with the majority that the judge was wrong. No such authority exists under Rule 37. However, I disagree with the suggestion that an attorney’s lack of preparation is grounds for contempt. Nor do I agree that Rule 11 has any connection with this issue on appeal since Rule 11, by its terms, is limited to pleadings. In my view, the majority’s discussion of Rule 11 is irrelevant, misleading and should be omitted.

Hickman and Newbern, JJ., join this concurrence.


author: John I. Purtle, Justice.

text:
    Don RAGAR v. Joseph R. HOOPER, et al.
    89-32
    772 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Gene O’Daniel and David Hodges, for appellant.

      Friday, Eldredge & Clark, by: Richard D. Taylor, for appellee Hooper-Bond Ltd. Partnership Fund III, now Shackle-ford St. Dev. Co.
   John I. Purtle, Justice.

The trial court granted the appellees’ motion to dismiss and to strike the appellant’s motion for payment of expenses and other relief. For appeal it is argued that the court erred in finding that the work performed by the appellant was not a “reasonable expense,” and that the court further erred in dismissing the motion on the grounds that the case had already been closed. We agree with the trial court that this case has ended.

This is the fifth time the parties in this case have been before this court since 1986. On June 2,1986, we affirmed the award of damages against the general partners in favor of the limited partners. Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986). The case was back before us in Ragar v. Hooper-Bond Limited Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706 (1987). The second time the case was here was the result of a motion filed in the trial court on August 8, 1986, wherein the parties sought guidance concerning disbursement of the funds collected from the judgment against the general partners. David Hargis sought an attorney’s fee of $55,462.50 for representing the limited partnership in this derivative action. On October 6, 1986, the trial court allowed Hargis the fee requested plus an additional $2,858.77 for unpaid expenses, as well as $16,810.75 representing expenses actually paid by Don Ragar. See Ark. Code Ann. § 4-43-1004 (1987). In this October 1986 order, the trial court ordered the balance of the money transferred to the limited partnership fund before all of Ragar’s claims had been settled. We held that there was no appealable order and dismissed the appeal.

The case made its third appearance before this court in Hooper-Bond Limited Partnership Fund III v. Don Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988). The third appeal was by Hooper-Bond, the general partner, contesting the payment of $20,000.00 to Christine Ragar, the wife of Don Ragar, for her services in preparation of the derivative suit for trial. Ragar unsuccessfully argued that the $20,000.00 award to his wife was not an appealable order. We found no merit in Ragar’s argument that the order appealed from was not a final one. The judgment of the trial court was affirmed.

In November, 1987, while the third appeal was pending before this court, the appellant filed a motion in the trial court for payment of expenses and other relief. Essentially he sought payment for his efforts on an hourly basis from May, 1984 until April, 1985. On December 1, 1987, Hooper-Bond filed a motion to strike. (The third opinion of this court was handed down on January 25,1988). On July 19,1988, the trial court granted the appellees’ motion to dismiss and to strike. In the order of July 19, 1988, the court stated:

That the motion to dismiss and strike filed by respondent herein is hereby granted. That the court entered a previous order in this proceeding which represents a final order effectively terminating the proceedings before this court. . . . In the alternative, should this court have jurisdiction, the court has listened to and considered the evidence and finds that the expenses and payments requested by Don Ragar in his motion for payment of expenses and other relief are not properly awardable or compensable and do not represent reasonable expenses, including any reasonable attorneys’ fee.

The case made its fourth appearance before this court on April 10,1989, in the case styled Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989). In that case Ragar decided to cross over to chancery court to see about obtaining payment for his time and to have an accounting between the general partners and the limited partners. That case was affirmed in part and remanded in part.

The present appeal seeks a remand to the trial court in order that appellant might have his claim for expenses reconsidered. He argues that he was negotiating with the attorney for the general partner when the matter of “reasonable expenses” was decided by the court. The trial court has awarded all “expenses” claimed by Ragar except for his claim for the work performed personally by him. The court considered this claim and found it was not an allowable expense. There is no claim that fraud was perpetrated against the appellant or the court. We find no valid reason to prolong this case. As we stated in Taggart v. Moore, 292 Ark. 168, 729 S.W.2d 7 (1987): “There must be an end to litigation at some point and this case is ended now.” So it is with the present case.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    AMERICAN STANDARD, INC. v. MILLER ENGINEERING, INC., and Worldwide Air Conditioning Service
    89-131
    772 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989
    [Rehearing denied September 11, 1989.]

      Wright, Lindsey & Jennings, for appellant.

      Arnold, Grobmyer & Haley, A Professional Association, and McHenry, Choate & Hartsfield, for appellees.
   Robert H. Dudley, Justice.

Appellees, Miller Engineering, Inc. and Worldwide Air Conditioning Service, Inc., the successor to Miller Trane Service Agency, filed this suit in chancery court seeking a mandatory injunction forcing appellant, American Standard, Inc., the successor to theTrane Company, to repurchase the inventory of Trane air conditioning parts owned by appellees. Appellant, American Standard, moved for summary judgment and argued that a prior suit between the parties made the suit res judicata. Appellees also moved for summary judgment and argued that the outcome of the earlier suit entitled them to the injunction. The chancellor granted summary judgment in favor of the appellees. Appellant appealed to the court of appeals. That court certified the case to this court for the construction of the Arkansas Franchise Practices Act. We reverse the judgment and dismiss the appellees’ complaint.

The Trane Company, appellant’s predecessor, and Miller Engineering, Inc., and Miller Trane Service Agency, the predecessor of Worldwide Air Conditioning Service, Inc., appellees, had a franchise relationship from 1969 to 1983. Miller Engineering acted as Trane’s franchise agent for sales of its commercial air conditioning equipment for most of Arkansas. Miller Trane Service Agency served as the service company for Miller Engineering and supported the air conditioner sales by servicing the Trane equipment and selling Trane parts. In 1983, Trane terminated the franchise, and in 1984, filed suit against Miller Engineering and Miller Trane alleging that Trane was owed $142,791.91 for the sale of goods on open account.

Miller Engineering and Miller Trane Service Agency counterclaimed against the Trane Company, contending that the termination of the parties’ contractual relationship was in violation of the Arkansas Franchise Practices Act. The two companies sought damages from Trane for the wrongful termination of their franchise. The lawsuit was tried in circuit court on April 8-11, 1986. The court directed a verdict in favor of Trane against Miller Engineering for $958.50 on the suit on open account and in favor of Trane against Miller Trane Service Agency for $ 138,134.97 on the suit on open account. The court also directed a verdict in favor of Miller Engineering against Trane for $11,950.54, for sales commissions due that had not been paid. The rest of the case was submitted to the jury. The jury returned a verdict for Miller Trane Service Agency for $50,000 for Trane’s violation of the Arkansas Franchise Practices Act. Likewise, the jury returned a verdict for Miller Engineering for $150,000 for Trane’s violation of the Act. In awarding the damages, the jury was instructed to determine whether Trane had breached the Arkansas Franchise Practices Act and whether the appellees had suffered damages as a result of that breach. The jury was instructed, among other things, that the fair market value of the businesses was their value immediately before and immediately after the termination of the franchise. Thus, the value of the franchise parts could have been considered in calculating the damages suffered by Miller Engineering and Miller Trane.

Miller Engineering and Miller Trane Service Agency moved for their costs and attorneys’ fees under the Act, and the trial court awarded them attorneys’ fees of $21,857.12 and costs of $7,968.46. Trane appealed the trial court’s decision to the Arkansas Court of Appeals. The court of appeals affirmed the judgments on November 11, 1987, in an unpublished opinion. Trane Co. v. Miller Engineering, Inc., CA 87-58 (Ark. Ct. App. Nov. 11, 1987).

In September 1986, five months after completion of the first suit, Miller Engineering and Miller Trane Service Agency’s successor, Worldwide Air Conditioning Service, filed this suit against Trane in Pulaski County Chancery Court, seeking a mandatory injunction ordering Trane to repurchase the inventory of Trane parts owned by Worldwide. Miller Engineering also asked for additional commissions owed to it, and Worldwide sought to recover for repair work it had performed on behalf of Trane. Trane’s successor, American Standard, Inc., moved for summaryjudgment, contending that the first lawsuit between the parties barred any future claims by Worldwide or Miller Engineering arising out of the same transactions or relating to the same claim. Worldwide and Miller Engineering also moved for summary judgment, contending that the determination in the first lawsuit that their franchise had been wrongfully terminated entitled them to the additional remedy of repurchase, pursuant to the Arkansas Franchise Practices Act. The chancellor denied American Standard’s motion for summary judgment, but granted that of Miller Engineering and Worldwide. American Standard now appeals from the chancellor’s decision. We reverse the judgment and dismiss appellees’ complaint.

The claim preclusion part of the doctrine of res judicata provides that a subsequent suit is barred when it involves the same subject matter as a prior suit between the same parties. Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988). The bar extends to questions of law and fact that either were or could have been determined in the first action. Swofford, supra. Under this doctrine, relitigation in a subsequent suit is barred when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Swofford, supra; Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). We have said in several cases that the test in determining whether res judicata applies is whether the matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Gyngard v. Garner, 238 Ark. 415, 382 S. W.2d 369 (1964). We have also said that when the case at bar is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case barred by res judicata. Swofford, supra.

The appellees argue that the doctrine of res judicata is not applicable to this second suit because their claim did not arise and could not be asserted under the Arkansas Franchise Practices Act until after the first case was completed. The argument is without merit.

A part of the Act, Ark. Code Ann. § 4-72-209 (1987), provides that “upon termination of any franchise by a franchisor without good cause, the franchisor shall, at the franchisee’s option, repurchase . . . the franchisee’s inventory, supplies, equipment, and furnishings purchased by the franchisee from the franchisor or its approved sources . . . .” The auxiliary remedy of repurchase is triggered by “termination without good cause,” not by a judgment of such termination. There is no language in other sections of the Act which provides that the right to the auxiliary remedy of repurchase is to be exercised only after the right to some initial remedies is exercised, and there is no language implying such a legislative intent. Accordingly, the doctrine of res judicata is applicable, and we reverse and dismiss the appellees’ complaint.


author: Robert H. Dudley, Justice. Jack Holt, Jr., Chief Justice,

text:
    IN THE MATTER OF L.C. BAILEY, An Incompetent
    89-129
    771 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989
    [Rehearing denied September 11, 1989.]

      The Etoch Law Firm, for appellant.

      David Solomon, for appellee.
   Robert H. Dudley, Justice.

The trial court ordered the appointment of co-guardians for appellant’s estate. We reverse and dismiss.

Appellees, Debbie Mayville and Clarice Roberts, daughters of appellant, filed a petition in probate court praying that they be appointed co-guardians of the person and estate of appellant because of his alcoholism. The probate court found that appellant was not competent to handle his business affairs and appointed appellees co-guardians of his estate.

Appellant raises two interrelated points of appeal: first, that appellees did not satisfy the requirements of Ark. Code Ann. § 28-65-212 (Supp. 1987), and second, that the lower court’s finding that appellant was incapacitated is clearly erroneous. The arguments have merit.

Ark. Code Ann. § 28-65-212(a) provides:

A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power, or pursuant to § 28-65-218. The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent’s alleged incapacity.

“Professional” means a physician, licensed psychologist, or licensed certified social worker with training, experience, and knowledge of the particular alleged disability of the respondent. Ark. Code Ann. § 28-65-101(6) (1987). “Evaluation” means a professional assessment of the abilities of the respondent and the impact of any impairments on the individual’s capability to meet the essential requirements for his health or safety or to manage his estate. Ark. Code Ann. § 28-65-101(5) (1987). There is no statutory requirement that the evaluation be in writing, but in determining a person’s incapacity the court must require that the evidence of incapacity include the oral testimony or sworn written statement of one (1) or more qualified professionals. Ark. Code Ann. § 28-65-211(b)(1) (1987).

Dr. McCarty and Dr. Bell are licensed medical doctors. Dr. McCarty saw appellant on three (3) different occasions between May 31, 1988 and June 29, 1988. He testified that appellant suffered from organic brain syndrome caused by alcoholism; that his diagnosis was based on what he had learned from Dr. Bell about appellant, what appellant’s records showed, and his own observations of appellant. He stated that he had treated that sort of condition many times and he did not think appellant should be handling any important matters or making any important decisions concerning money matters. It was stipulated that if Dr. Bell were called as a witness, he would testify in accordance with Dr. McCarty, and that, in addition, Dr. Bell had been appellant’s doctor for more than ten (10) years.

Clearly, Dr. McCarty and Dr. Bell satisfy the definition of “professional.” Further, their “evaluation” was performed prior to the hearing on this petition, thus satisfying another condition of Ark. Code Ann. § 28-65-212(a). The issue is whether the doctors’ “evaluations” satisfy the requirements of Ark. Code Ann. § 28-65-212(b) which provides:

(b) The evaluation shall include the following:
(1) The respondent’s medical and physical condition;
(2) His adaptive behavior;
(3) His intellectual functioning;
(4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives' available.

The statute sets forth four (4) very specific findings which “shall” be included in the evaluation. The word “shall” when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to absurd results. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). We cannot say that mandatory compliance with this statute would lead to absurd results. Therefore, the professional evaluations should have included the four specific findings.

The first required finding was satisfied. Dr. McCarty testified about his assessment of appellant’s medical and physical condition, and it was stipulated that Dr. Bell’s testimony would have been in agreement.

The fourth required finding was also satisfied. Dr. McCarty testified that he did not think appellant should be handling important matters or making important decisions concerning financial matters, but that he was not in a position to know whether appellant needed personal care in his day to day life.

The doctors’ testimony, however, did not establish that the remaining two requirements, findings with respect to adaptive behavior and intellectual functioning, had been included in the evaluation. Consequently, we agree with appellant that the statutory requirements in this regard were not satisfied.

Appellant’s second point of appeal is that the lower court’s finding of incapacity is clearly erroneous. A probate court’s determination of incapacityfinvolves a finding of fact. We will not reverse such a finding unless it is clearly against the preponderance of the evidence, or clearly erroneous. ARCP Rule 52.

In light of our conclusion under appellant’s first point of appeal, we must also conclude that the finding of incapacity was clearly erroneous because it was based in part upon mandatory professional evaluations which did not satisfy the statutory requirements of Ark. Code Ann. § 28-65-212(b). Accordingly, we must reverse and dismiss since a clearly erroneous finding of incapacity is tantamount to concluding that the trial court erred in denying appellant’s motion for a direct verdict.

Reversed and dismissed.

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

Jack Holt, Jr., Chief Justice,

dissenting. The majority’s strict interpretation of the requirements of Ark. Code Ann. § 28-65-212(a) (Supp. 1987) eliminates the testimony of qualified professionals concerning evidence of incapacity unless they allude to and use certain magic words in their evaluations.

The majority concedes that both Dr. McCarty and Dr. Bell are professionals and that their evaluations well describe Bailey’s medical and physical condition and contain appropriate recommendations as to areas for which assistance is needed. However, the majority finds the testimony deficient with respect to the requirement of an evaluation as to “adaptive behavior” and “intellectual functioning.” Ark. Code Ann. § 28-65-212(b)(2) and (3).

Dr. McCarty testified that he saw Bailey on three different occasions between May 31,1988, and June 29,1988, and that in his opinion Bailey suffers from organic brain syndrome caused by alcoholism. His diagnosis was based in part on information furnished by Dr. Bell (who had treated Bailey for over a ten-year period), on Bailey’s records, and on his own observations of Bailey. Dr. McCarty further testified that he had treated individuals with this sort of condition many times.

When asked how organic brain syndrome caused by alcoholism would manifest itself, Dr. McCarty testified that he (Bailey) would be incapable of “handling any important matters” or “making important decisions . . . [a]t any time concerning any money matters or things of importance.” (Emphasis mine.) Giving Dr. McCarty’s words their plain meaning, it is obvious that this evaluation well describes Mr. Bailey’s intellectual functioning and his adaptive behavior, even though the doctor did not utilize the specific wording of our code.

I would affirm the findings of the probate court.

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


text:
    Beverly WILLIS and Kenneth Dokes v. STATE of Arkansas
    CR 89-14
    772 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      James P. Clouette, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellants, Beverly Willis and Kenneth Dokes, were cbnvicted of various crimes in seven different cases tried to the court. This appeal involves three of those convictions. We affirm the judgments of conviction.

The appellants were convicted, as co-defendants, of robbery in Pulaski County Circuit Court, Case No. 85-3181. They argue that conviction should be reversed because the trial judge failed to formally pronounce the verdict of guilty as required by Ark. Code Ann. § 16-90-106(b) (1987).Thecriminal code requires that pronouncement, and the trial judge should make it in every case. Nevertheless, the appellants were represented by counsel, made no objection, did not file a motion for a new trial, and have not suggested in their appellate brief any possibility of prejudice as a result of the omission. It is necessary to raise an issue in the trial court before we will consider it on appeal. Further, there was no prejudice in the omission. Accordingly, we do not reverse on this point. See Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981).

Next, appellant Dokes argues that the proof was not sufficient to support his separate conviction for theft of property in Case No. 84-675. In that case, the Information listed several credit cards which had been stolen from the victim, but there was no mention of stolen cash.

The evidence showed that in a classic “pigeon drop” scheme, Dokes and the co-defendant took the victim’s billfold containing $200.00 cash and several credit cards. Four or five weeks later, the victim received a call from a North Little Rock Post Office. Postal officials informed him that they had found his billfold in a mail drop box. His credit cards were still in the billfold, but the cash was gone.

Appellant Dokes argues that because the victim subsequently recovered the billfold containing the credit cards, Dokes did not take the billfold with the intention of depriving the victim of the credit cards. The argument has no merit.

The question of intent is one for the trier of fact, in this case, the trial court. See Schultz v. State, 219 Ark. 217, 242 S.W.2d 131 (1951). There was ample evidence to support the trial court’s finding that the requisite intent to deprive the victim of his credit cards was present under the facts of this case.

All seven of the cases were originally set for September 12-13, 1988. Just before the trials were to commence, the State discovered that a material witness for Case No. 86-13 was unavailable for the trial dates and that it did not have copies of appellant Willis’s prior felony convictions, and therefore, could not prove that she was an habitual offender. The State then moved for a continuance in Case No. 86-13. The trial court granted a continuance until September 23, 1988, when appellant Willis was found guilty of aggravated robbery and sentenced as an habitual offender. She now argues that her right against double jeopardy was violated when the trial court granted the continuance.

The argument is without merit for two reasons. First, appellant did not make an objection based on double jeopardy, and secondly, the trial court granted the continuance in this case before it heard the first witness. In bench trials, jeopardy attaches when the trial judge hears the first witness and not until then. See Serfass v. United States, 420 U.S. 377 (1975), and Ark. Code Ann. § 5-1-112(3) (1987).

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    ARKANSAS CHARCOAL COMPANY, A Division of Arrow Industries, Inc. and TXO Production Corp. v. ARKANSAS PUBLIC SERVICE COMMISSION and Arkansas Western Gas Company
    89-13
    773 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Ivester, Henry, Skinner & Camp, by: Hermann Ivester and Valerie F. Boyce, for appellee Arkansas Charcoal Co.

      Rose Law Firm, A Professional Association, by: Carol S. Arnold, for appellant TXO Production Corp.

      George C. Vena, Assistant Counsel, for appellee Arkansas Public Service Commission.

      Keck, Mahin & Cate, by: Robert Y. Hirasuna; Jeffrey L. Dangeau, for appellee Arkansas Western Gas Company.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee Consumer Utility Rate Advocacy Division.

      Arkansas Louisiana Gas Company, by: Kathleen D. Gardner and Sandra L. Smith, for amicus curiae Arkansas Louisiana Gas Company.
   Steele Hays, Justice.

In July, 1986, Arkansas Charcoal Company (ACC) entered into two contracts with TXO Production Corporation (TXO) entitled “Gas Sales Agreement” and “Option to Purchase Facilities.” Under the terms of those contracts TXO agreed to construct and install a gas pipeline and related facilities to connect TXO’s Earl “A” No. 1 and Kalamazoo No. 1 wells in Logan County to ACC’s charcoal manufacturing plant in Paris. In return, ACC agreed to buy from TXO up to 400 million British thermal units of natural gas daily and to pay for the cost of constructing the gas pipeline. In January, 1987, TXO commenced the operation and sales of gas through this pipeline to ACC. Simultaneously, ACC terminated its gas purchases from Arkansas Western Gas (AWG).

On January 21, 1987, AWG petitioned the Public Service Commission (PSC) for an order directing TXO to appear and show cause why it should not be prohibited from providing gas service to ACC until (1) it complied with Arkansas law and regulations for public utilities and (2) obtained a Certificate of Environmental Compatibility and Public Need (CECPN) required by the Utility Facility Environmental and Economic Protection Act (UFEEPA), Ark. Code Ann. § 23-18-501, et seq. (1987). In the alternative, AWG requested authorization to abandon its obligation to supply gas to ACC.

The PSC conducted a public hearing on October 27, 1987, and on May 17,1988, issued Order No. 38. The order stated that the pipeline constructed by TXO for ACC constituted a “major utility facility,” as defined in the UFEEPA, and therefore, an application for a certificate of public need should have been filed with the PSC prior to the pipeline’s construction. In addition, Order 38 required TXO and ACC to cease and desist from operating the pipeline facility. TXO and ACC moved for a rehearing and the PSC issued Order No. 39 denying the petition for rehearing and ordering compliance with Order No. 38.

TXO and ACC appealed Orders No. 38 and No. 39 to the Court of Appeals. The Court of Appeals held that the gas pipeline constituted a “major utility facility” as defined by the UFEEPA, but that TXO and ACC had complied with the act by filing an environmental impact statement. The PSC’s cease and desist order was reversed. Arkansas Charcoal Co. v. Arkansas Public Service Comm’n, 26 Ark. App. 202, 762 S.W.2d 403 (1988). We granted certiorari on petition of the PSC and AWG that we review matters of legal significance and public interest in the Court of Appeals decision. Accordingly, we affirm the Court of Appeals’ reversal of the cease and desist order, and reverse that part of the decision applying the UFEEPA to TXO and ACC.

The Utility Facility Environmental and Economic Protection Act applies to public utilities. The broad policy objectives articulated by the General Assembly in its legislative findings and declarations as well as the express definitions within the act evince such application. The legislative findings, as codified in Ark. Code Ann. § 23-18-502(a)-(c) state:

(a) The General Assembly finds and declares that there is at present and will continue to be a growing need for electric and gas public utility services which will require the construction of major new facilities.
(b) . . . it is essential in the public interest to minimize any adverse effect upon the environment and upon the quality of life of the people of the state which such new facilities might cause . . .
(c) . . . Present laws and practices may result in undue costly delays in new construction, may encourage the development of energy technologies which are relatively inefficient and may increase costs, which will eventually be borne by the people of the state in the form of higher utility rates. [Our emphasis.]

Public utility language pervades the act. Clearly, the legislature’s intent focused on regulating public utility’s construction of new facilities.

Moreover, the statutory definitions contained in the act dispel any doubts as to the legislature’s intent. Ark. Code Ann. § 23-18-503(9) provides:

‘Public utility’or ‘utility’ means any person engaged in the production, storage, distribution, sale, delivery, or furnishing of electricity or gas, or both, to or for the public, as defined in § 23-1-101 (4) (A)(i) and (4)(B). [Our emphasis.]

The PSC and AWG argue that TXO and ACC violated the act by constructing a major utility facility without first obtaining a certificate of environmental compatibility and public need as required by § 23-18-510(a). However, because the act defines the terms public utility and utility identically the definition of “major utility facility” reads as “major [public] utility facility.” TXO and ACC failed to construct a major public utility facility. The construction of the private pipeline required no certificate of environmental compatibility and public need.

The PSC and AWG focus on the word “person” defined in § 23-18-503. Because “person” is defined broadly, they argue that the legislature intended the act to apply to both public and private utilities. However, a “person” must still be constructing a “major utility facility,” i.e., a “major public utility facility,” according to the statutory definition.

Additionally, the PSC and AWG rely on the legislature’s 1977 amendments to this act. The legislature substituted the word “applicant” for the words “public utility.” Ark. Code Ann. § 23-18-503(10) states that applicant means the utility or other person making application to the commission for a certificate of environmental compatibility and public need. While the definition of applicant allows “other persons” to make application for a certificate, it does not require “other persons” to obtain a certificate.

Further evidence of the fact that the legislature intended this act to apply only to public utilities is found in § 23-18-528(2). This provision grants the power of eminent domain to any applicant granted a CECPN. To interpret the act as including private facilities would grant to an applicant the power of eminent domain for purely private purposes, a result which is manifestly unconstitutional. See Arkansas State Highway Comm’n v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976).

Having decided that the UFEEPA applies to public utilities, the next question we must answer is whether either TXO or ACC are public utilities. Understandably, AWG contends that the question as to the status of TXO and ACC should be remanded to the PSC for this determination. Yet the PSC failed to make a finding as to the public utility status of TXO and ACC before issuing Order #38. The statute by which the Court of Appeals reviews the actions of the commission, Ark. Code Ann. § 23-2-423(c)(3), (4), and (5) (1987), limits the review as follows.

(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
(5) All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.

See also General Tel. Co. v. Arkansas Public Service Comm’n, 295 Ark. 595, 751 S.W.2d 1 (1988). In this case, the commission did not find that TXO or ACC operated as public utilities. On appeal, the briefs are replete with testimony and arguments as to whether TXO or ACC qualify as a public utility. We find neither TXO or ACC operated as public utilities.

A public utility is generally defined as a business or service which is engaged in regularly supplying the public with some commodity or service of public consequence, such as electricity, gas, water, transportation, telephone or telegraph service. 64 Am. Jur. 2d Public Utilities § 1 (1972). UFEEPA defines public utility as any person engaged in the production, storage, distribution, sale, delivery, or furnishing of electricity or gas, or both, to or for the public. Ark. Code Ann. § 23-18-503(9). A determinative characteristic of a public utility is that of service to, or readiness to serve, an indefinite public, or a portion of the public.

The record reveals that TXO sold gas to one other industrial end user in Arkansas besides ACC. Testimony indicated that TXO did not intend to construct future pipeline for additional industrial customers. Admittedly, it is not the number of customers served which is determinative of public utility status, but rather whether a person or company holds itself out to serve all who wish to avail themselves of the service. State Public Utilities Commission, ex. rel. Macon County Telephone Company v. Bethany Mutual Telephone Association, 270 Ill. 183, 110 N.E. 334 (1915). TXO stated that it maintained the right to refuse service to any potential customer. We agree with the finding of the Court of Appeals that “there is no evidence that it [TXO/ACC pipeline] was constructed to serve any other person or entity besides ACC, or that any other user is anticipated.” Therefore, TXO fails to provide service “to or for the public.” Likewise, ACC, as owner of the pipeline, is simply providing gas service for itself, and does not purport to provide service “to or for the public.” Neither TXO or ACC provided service for the public, nor do the facts indicate that either entity dedicated the pipeline for public use.

Affirmed in part, reversed in part.

       “Person” includes any individual, group, firm, partnership, corporation, cooperative association, municipality, government subdivision, government agency, local government, or other organization.

       The definition of public utility as found in Subtitle 1: Public Utilities and Carriers, Ark. Code Ann. § 23-1-101 (4) (A) (Supp. 1987), states “Public utility” includes persons and corporations, or their lessees, trustees, and receivers, owning or operating in this state for (i) Producing, generating, transmitting, delivering, or furnishing gas, electricity, steam, or another agent for the production of light, heat, or power to, or for, the public for compensation.


author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Scott LANCASTER v. SCHILLING MOTORS, INC.
    89-16
    772 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Gruber Law Firm, by: Rita W. Gruber, for appellee.
   Steele Hays, Justice.

In this case of misrepresentation in the sale of an automobile, the only question for review involves the sufficiency of the evidence as to the elements of reliance and damages.

On April 16, 1987, appellant, Scott Lancaster, purchased a used 1986 Lincoln Town Car from appellee, Schilling Motors. According to appellant’s testimony, the salesman, Jim Norris, told appellant that the only damage to the car was body damage to the right rear fender and the entire car had been repainted so the paint would match. Appellant asked Norris if there were any other body or frame damage and Norris told him no, that the only damage was to the right rear fender. Appellant then purchased the car for $15,079.

Some five weeks later, appellant learned the car had sustained other damage to the front, rear and side and had also sustained frame damage. Schilling did not dispute it was aware of these other items of damage nor that these other damages had been repaired prior to the sale of the car to appellant. After learning of the more serious damage to the car, appellant sold the vehicle to mitigate his damages, receiving $13,500 for its sale.

Appellant then brought this action for misrepresentation against appellant. The jury found in favor of appellant and awarded him $1,500 in damages. Schilling made a motion for a judgment n.o.v. which the trial court granted finding that there was insufficient evidence of the damages and of reliance on the misrepresentation. Appellant appeals from that order, challenging both findings.

Review of Judgment N.O.V.

The burden of proof in a case of fraud in a case at law is by the preponderance of the evidence. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). In reviewing the granting of a judgment n.o.v., we will affirm only if we find there is no substantial evidence to support the jury verdict. We review the evidence and any reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. was entered. McQuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). We also note while we previously recognized a broad discretion in the trial court’s setting aside of a jury verdict, we changed that standard to a more stringent one favoring the jury’s decision. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). Viewing the evidence in the foregoing manner, we find that the trial court erred.

Evidence of Reliance

An essential element in a case of misrepresentation is the plaintiffs reliance on the defendant’s misrepresentation. Carter v. Matthews, 288 Ark. 37, 701 S.W.2d 374 (1986). Appellant in this case testified as to the salesman’s representations and further stated that he believed him and relied on his statements, and that it was important to appellant that there had not been any damage to the frame as he knew that would affect the value of the car. This was sufficient evidence of reliance by the appellant. See Godwin v. Hampton, 11 Ark. App. 205, 669 S. W.2d 12 (1984). While the salesman testified that what he told the appellant was only a general statement to the effect that there was some body damage and that he didn’t know the extent of the damage, this question was one of credibility for the jury and not for the court. When the evidence is disputed, a motion for a judgment n.o.v. should be refused. Reddell v. Norton, 255 Ark. 643, 285 S.W.2d 328 (1955).

Neither could we say there was any evidence to show that the reliance on the salesman’s statements was unjustified or that the situation called for investigation on the part of the appellant. A buyer of goods may justifiably rely on statements made by a vendor “not only where such investigation would be burdensome or difficult. . . but likewise where the falsity of the representation might be discovered with little effort by means easily at hand . . . It is only where, under the circumstances, the facts should be apparent to one of his knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation.” W. Prosser & W. Keeton, Prosser & Keeton on Law of Torts, (5th Ed. 1984) § 108. Here there were no facts presented to show anything that would have served as a warning or to put appellant on notice that there was any reason for further investigation. As we stated in Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963), the very representations relied on can be what cause the purchaser to forbear from making further inquiry. “[0]rdinary prudence does not require the party to test the truth of such representations where they are within the knowledge of the party making them or where they are made to induce the other party to refrain from seeking further information.” Clay v. Brand, supra.

Evidence of the Appellant’s Damage

We also find the evidence sufficient to sustain the jury’s award of $1,500 in damages and note that the appellee raised no objection during trial to any aspect of the appellant’s proof of damages. In a case of fraudulent misrepresentation, the measure of damages is the difference between the value of the goods received and the value of the goods represented. Ozark Kenworth Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984). As to the value of the goods as represented, it was undisputed that appellant had paid $ 15,079 for the car. While we have not addressed this particular point, other jurisdictions have found such evidence as proper for proof on the value of the car as represented. 37 Am. Jur. 2d Fraud and Deceit § 480 (and cases cited therein). We also find that measure adequate and have found nothing in the facts of this case to suggest otherwise. Appellant testified without objection that his loss in the transaction was $1,500.

As to the proof of the actual value, an appraiser who ultimately found a buyer for the car, stated that the fair market value of the car was $13,500. There were some slightly varying figures available to the jury from other testimony, but this was a question for the jury to determine. Reddell v. Norton, supra. The appellee points out that the assessment made by the appraiser occurred two months and approximately 2,500 miles after the time of purchase, so that technically this figure was not the value of the car at the time it was sold to appellant.

We do not find this to be a sufficient basis to take the question from the jury. Our cases have given the jury some latitude in its decision on this issue, and have not required exactness on the proof of damages. So for example in Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980), the expert stated thevalue of the vehicle at the time of purchase was actually $1,000 to $1,500 less than its represented value. The jury awarded $1,250 and we found the evidence was sufficient to support the damages award.

Here, even if we were to hold that the time lapse and the additional mileage made an appreciable difference in the value of a car that was a year to eighteen months old and was sold with approximately 18,000 miles already on it, there was evidence from which the jury could make allowances for that use. There was other testimony presented which put the value of the car generally much below the $ 13,500 figure and testimony that some car dealers would not take the car at all because of its condition. The jury could easily have found the value of the car at a figure less than the $ 13,500 and after accounting for the additional time and mileage, brought that figure up to $13,500.

On the issues of both reliance and damages we find that the evidence, when viewed most favorable to the appellant, was substantial in support of the jury’s verdict, and it was error to grant the judgment n.o.v. McCuistion v. City of Siloam Springs, supra.

It should be noted that appellee’s first challenge to the appellant’s evidence of damages came well after the verdict was rendered by a motion for a judgment n.o.v. No motion for a directed verdict on the issue of damages was made either at the close of the proof, nor at the end of the appellee’s case, nor did the appellee object to the instruction to the jury on damages (AMI 2201), either of which would be fatal to any entitlement to a reversal on the grounds the verdict was not supported by substantial evidence. See ARCP Rule 50(b), and the Reporter’s Notes, and ARCP Rule 51. Where evidence of damages is wholly lacking, a motion for judgment n.o.v. would be appropriate, but where, as here, evidence of damages is presented but the defendant argues that the evidence does not support the amount of the verdict, the appropriate recourse is a motion for a new trial, which was not made.

Reversed and remanded for entry of a judgment consistent with this opinion.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. Members of the Bar and trial bench should take particular notice of this case since it changes the measure of damages in deceit actions. In our recent case of O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989), we noted our bias favoring the benefit-of-the-bargain rule when considering the amount of damages in misrepresentation cases. Damages are determined under that rule by establishing the difference between the actual value of chattel and its value had it been as represented. Id. In determining what the property is actually worth, the property is to be valued at the time of purchase. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Greiner Motor Co. v. Sumpter, 244 Ark. 736, 427 S.W.2d 8 (1968); Union Motors, Inc. v. Phillips, 241 Ark. 857, 410 S.W.2d 747 (1967); see also Brill, Ark. Law of Damages, § 31-6 (1984).

In the present case, the appellant offered absolutely no evidence regarding the value of the car at the time he purchased it from the appellee. In fact, the only value evidence presented by the appellant was what he sold it for, and that sale took place two months and 2,500 miles after the date he purchased the car. In this respect, the appellant called a witness, a car broker, who said that he understood “it (the car) brought $13,500.00 but I would never had paid that much for it.” That witness was never asked his opinion as to the car’s worth at the time of purchase.

The majority opinion makes reference to testimony by the appellant that “his loss in the transaction was $1,500.” The majority implies the $ 1,500 figure was sufficient to meet the legal measure of damages in a deceit action. Not so. To put appellant’s statement in context, the $1,500 loss to which appellant made reference was the amount he lost at the time his car broker sold the car for $13,500 — again two months and 2,500 miles after he purchased the car. Of course, the fact such a statement was given without objection has nothing to do with whether it is sufficient to establish what the value of the car was when purchased.

Apparently, the majority court, by its opinion, has decided to adopt what might be called a “benefit-of-the-bargain rule with a de minimis non curat lex twist.” In other words, the court will assume there is little or no difference in a car’s (or chattel’s) value when it is sold two (or perhaps more) months after its purchase. There is no other way one can explain the majority’s decision.

In conclusion, I would add that since the record appears sufficient to support the appellant’s allegation of misrepresentation, the result reached by the majority appears an equitable one. However, when this court applies equitable principles to a law case, particularly one involving measure of damages, it can generally expect to pay a price when considering and deciding future cases.

Finally, in an apparent attempt to justify its decision regarding the damages issue, the majority raises, on its own, the suggestion that appellee’s challenge to the appellant’s evidence of damages was untimely. The majority also submits the appellee failed to move for a directed verdict on the measure of damage issue.

In response, I would point out that the appellant never argued those issues below, and this court has no authority to search the transcript to find justification to reverse a case. See Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984); First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984). In addition, aside from jurisdiction issues, we do not reverse cases on theories not presented by the appellant to either the trial court or this court. Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975).

I would affirm the trial court’s granting of the appellee’s motion for judgment notwithstanding the verdict on the issue of damages.


text:
    James Lee OWENS v. H.A. TAYLOR, Judge
    88-322
    772 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Griffin J. Stockley, Central Arkansas Legal Services, for petitioner.

      Steve Clark, Att’y Gen., by: Jeannette Denhammcclendon, Asst. Att’y Gen., for respondent.
   Steele Hays, Justice.

James Owens seeks a writ of prohibition against the Honorable H.A. Taylor, Circuit Judge of Jefferson County, Arkansas, asserting that the circuit court has no subject matter jurisdiction to impose conditions on Owens’s release from the Arkansas State Hospital. We ordered a temporary stay in the proceedings below so that briefs could be submitted. Having considered the arguments, we grant the writ.

Owens was charged on March 23,1987, with second degree battery. While resisting arrest he drew a straight razor from his shoe and in the struggle with the officers Owens sustained several cuts, none severe.

On the day after his arrest, Owens was sent to the state hospital for evaluation and on April 20, 1987, the circuit court found, based on a report from the hospital, that Owens lacked the capacity to stand trial. He was then committed for treatment.

The record is entirely silent as to the events of the next thirteen months, but on May 25, 1988, Dr. Wanda Stephens, Staff Psychiatrist, wrote the circuit judge expressing the position of the hospital, i.e., that unless an order of civil commitment were entered by a probate court, circuit court jurisdiction over James Owens ended after one year.

Next, Dr. Stephens wrote in September to the Mental Health Magistrate, Ms. Elizabeth McCord, to state that Owens was fit to proceed and, with further treatment, should be able to cooperate with his attorney by January of 1989.

On November 9, 1988, the circuit court, citing a November 1, 1988, report from another staff psychiatrist, Dr. James McDaniel, stating that Owens lacked the capacity to conform his conduct to the requirements of the law at the time of the alleged offense, declared that Owens should be acquitted by reason of insanity pursuant to the provisions of Ark. Code Ann. § 5-2-315 (1987).

On December 1,1988, Dr. Stephens again wrote the circuit judge to advise that Owens was no longer regarded as a threat to himself or to others and would be released in approximately ten days. On that same day, the administrator of Rogers Hall at the hospital wrote to the circuit judge to request conditional release of Owens and on December 7 the prosecuting attorney petitioned for Owens’s conditional release. A hearing was scheduled on that petition for January and at that point this court ordered a temporary stay in those proceedings.

The state maintains that because Owens was released unconditionally by the state hospital on January 11, 1989, any justiciable issue is rendered moot. General Publishing Co., Inc. v. Erxleben, 283 Ark. 136, 671 S.W.2d 182 (1984). Ordinarily, mootness resolves the controversy and renders a decision unnecessary. But that choice is ours to make and where considerations of public interest or prevention of future litigation are present, we may elect to settle an issue, even though moot. Cummings v. Washington County Election Commission, 291 Ark. 354, 724 S.W.2d 486 (1987); Robinson v. Arkansas Game & Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978). We find that course preferable in this instance based in part on Owens’s argument that if we dismiss the petition as moot, Owens will be taken into custody and the proceedings still pending in Jefferson Circuit will be resumed.

The issue presented to us is whether the Jefferson Circuit Court had jurisdiction in January, 1989, to impose conditions on Owens’s release from the state hospital some nineteen months after he was found incompetent to stand trial and committed to the state hospital for treatment and some two months after the circuit court found him not guilty of second degree battery by reason of insanity. The answer clearly is no. See Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Stoner v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980); Barber v. Young, 121 Ark. 537, 182 S.W. 279 (1915).

We do not decide whether circuit court jurisdiction ends at some specific point, simply by lapse of time; it is enough to note that Owens is no longer in custody, that he was acquitted by order of the circuit court dated November 9, 1988, and nineteen months had elapsed from his original commitment. That being so, it is plain the circuit court had no jurisdiction in January, 1989, to impose conditions on Owens’s release.

Writ of prohibition granted.

       Dr. McDaniel’s report is not included in the record.


text:
    Lester Lee TOUVELL v. STATE of Arkansas
    CR 89-22
    772 S.W.2d 347
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal of a criminal case raises only one argument — the trial court erred in refusing to grant a continuance so the defense could procure the attendance of a witness. The argument has no merit.

Appellant, Lester Touvell, was charged with the offenses of rape, kidnapping and aggravated robbery stemming from occurrences on July 31,1987. Mary Desonie, the victim, testified that she returned home from work about 7:15 a.m. to find the appellant in her home. She struggled with the appellant but was overpowered and then raped. Appellant forced her to drive him to a bank where she withdrew money from an automatic teller. He took the money and had her drive to a liquor store and to another bank in an effort to cash her payroll check. She cashed the check at the second bank and appellant took that money and they continued to drive around for another hour. At one point appellant had her get out of the car in an isolated area and told her he was going to kill her. She pleaded with him and they got back into the car, made one more stop for gas, and then appellant had her let him out of the car.

Appellant’s trial was held oh June 28 and 29, 1988, and appellant testified, his defense being he was with the victim on that morning, but had not raped her nor had intercourse with her. By his account, he lived across the street and was on his steps on the morning in question. When Ms. Desonie drove up he was just leaving to go look for a job and they struck up a conversation. She invited him in, he had a coke and they talked about going to the races. He told her he didn’t have any money and she offered to lend him some. They drove to the bank and then drove to the liquor store, where the victim was unsuccessful in cashing her check. She then dropped him off at a friend’s house so he could get a shirt to wear to the races. He said she was going to pick him up but she never came back.

The jury found appellant guilty on all three charges. He was sentenced to life imprisonment for the rape, forty years for the aggravated robbery and thirty years on the kidnapping as well as a $15,000 fine.

Appellant appeals from that judgment arguing only that the trial court erred in refusing to grant a continuance. On June 28, 1988, just prior to the beginning of trial, the defense counsel made a motion for a continuance in order to obtain the presence of a material witness. The defense counsel stated that Jerry Oliver was an attendant at the gas station where the victim had said they stopped to get gas. Counsel stated he had talked to Oliver in January and described appellant as having “tattoos all over his body” and that he had no shirt on that day. Counsel said Oliver told him he was working that day but no one matching that description had come to the station.

Counsel further stated that he had subpoenaed Oliver previously for an earlier trial date that had been continued, and that Oliver had been available. Counsel stated he found out the day before this trial that Oliver was no longer working at the gas station and the sheriffs office had been unable to serve him; that the sheriffs office told him Oliver was wanted for either a contempt citation or for a levy on a civil matter and for that reason Oliver might be trying to evade the law. Counsel stated he had then driven out to the gas station and the attendant there knew Oliver and saw him once in a while but had not seen him lately and thought Oliver was working and living in Ft. Smith. The trial court denied the motion for a continuance.

The burden of proof and standard of review was stated in David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988):

The burden is on the movant to show good cause for a continuance. A.R.Cr.P. Rule 27.3. A motion for continuance is addressed to the sound discretion of the trial court and the court’s decision will not be reversed absent a clear abuse of that discretion amounting to a denial of justice. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). The burden of proving prejudice and an abuse of discretion rests on the appellant. Kelly v. State, 261 Ark. 31, 545 S.W.2d 919 (1977) ....

The court considers several factors in considering whether a continuance should be granted, including: the diligence of the movant, the probable effect of the testimony, the relevance of the testimony, and the likelihood of procuring the witness in the event of a postponement. Davis v. State, 267 Ark. 1159, 594 S.W.2d 47 (1980); Kelly v. State, supra. Applying those factors to the facts of this case, we find no abuse of discretion.

The factor weighing most heavily in this case is the relevance of the testimony and its probable effect. While appellant contends the issue in the case was one of credibility and therefore, the witness’ presence was important to impeach the victim’s testimony, the argument is overstated. The victim’s testimony was corroborated, the appellant’s account was improbable and Oliver’s testimony in any case had little probative value or relevance.

The victim testified that in her struggle with appellant her glasses were broken and she was cut on her face. The doctor who examined her testified she had a cut on the bridge of her nose and another above her eye. He also testified that she had a labial abrasion. When the victim arrived back at her home she called her father who came over immediately. He testified that when he saw her it was “obvious she was hurt,” that she had bruises around her face. The detective who interviewed her testified that she was very shaken and it was obvious that something had occurred to her.

The defense was not able to present any other explanation for the victim’s injuries and condition, nor any motive for the victim to ask this stranger to go to the races with her after she had just been working all night, or to lend him $100, or for the fabrication of this charge. Given the foregoing, the limited effectiveness of Oliver’s testimony as next noted, is further diminished.

Defense counsel stated he had described appellant to Oliver as a man with no shirt and “tattoos all over his body,” and that Oliver had not remembered anyone fitting that description. While this might appear to be helpful to the defense, a further reading of the record dispels that thought. When the victim described appellant, she only noted a tattoo on his left arm — the side she observed most of the time she was with appellant, which was in her car. She did not describe him as someone with tattoos all over his body, and she had noted he did not have his shirt on during the time she was with him. When appellant took the witness stand he described his tattoos as being only on his right and left arms except for one he described as a heart on his left chest.

Given that testimony, appellant was not aptly described to the gas attendant as having tattoos “all over his body,” and it is therefore not surprising that he had not remembered such a person. In contrast, a man without a shirt in the middle of the summer with some tattoos on his arms would not be particularly unusual. Additionally, the inquiry was made five or six months after the date in question and the ability to recollect customers from the past summer on a particular day would be difficult at best. Hence, the testimony would seem to have little probative value. Nor did the impeachment testimony contradict any vital part of the victim’s testimony, merely an incidental part of her description of the episode.

Considering all the factors in this case, we find no abuse of the sound discretion given to the trial court in these matters.

AFFIRMED.