text:
    Jack AVANCE, Jr., Robert Shelby, and Carmon Wigley v. Virginia R. RICHARDS
    97-134
    959 S.W.2d 396
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Lawrence W. Fitting, P.A., for appellants.

      Bagby Law Firm, P.A., by: Philip Bagby, for appellee.
   David Newbern, Justice.

Smith and Etta Jordan, husband and wife, each wrote a holographic will on July 8, 1976. The documents contained common provisions leaving property to the survivor. Ms. Jordan survived Mr. Jordan. In 1990, Ms. Jordan placed money in a joint checking account with right of survivor-ship. The other person named as depositor was appellee Virginia Richards. At the time of Ms. Jordan’s death in 1995, the account contained approximately $121,700. Ms. Richards, who served as executrix of a later will executed by Ms. Jordan, removed the money from the account after being advised by an attorney that the money was hers.

The question we must answer is whether there was a contract between the Jordans that was breached when Ms. Jordan effectively removed money from her estate, after Mr. Jordan’s death, by establishing the survivorship account. The Chancellor held that Ark. Code Ann. § 23-32-1005 (Repl. 1994) conclusively placed ownership of the money in Ms. Richards as the surviving person on the account. We affirm the result reached by the Chancellor but for the reason that there was insufficient evidence of a contract binding Ms. Jordan to leave the money in question to Mr. Jordan’s beneficiaries in accordance with her 1976 will.

Mr. Jordan’s will contained this provision:

I do hereby give, devise and bequeath all my estate and property which I may own at my death real personal and mixed and wheresoever situated of every kind sort and description to my wife Etta Jordan. She may dispose of the personal property at her decision but the real estate cannot be sold, bartered or disposed of in any manner without the signature of my heirs namely - Hester Avance Junior Avance Carmen Wigley, Robert Shelby and Donald Sanders and they get their share of the property (50%) at the time of transaction to be divided as other monies and property which will be described in paragraph marked (Fourth). The other half (50%) will go to my wife if living and to her heirs if she predecease me.

The document written by Ms. Jordan contained a provision that was virtually the same as Mr. Jordan’s but making him the beneficiary and providing for distribution of her fifty percent to her sister and nieces and nephews. This provision also appeared in Ms. Jordan’s document: “At his (Smith’s) death it is my wish that all of our estate be divided — 50% of our estate, property and monies will go to my heirs and 50% will go to my husband’s (Smith Jordan’s) heirs.” The 1976 document signed by Ms. Jordan also provided that if Mr. Jordan survived her he could dispose of personal property “at his own decision.”

On January 26, 1984, Ms. Jordan executed a second typewritten will that purported to revoke all prior wills. The 1984 will incorporated the “50-50” disposition featured in the Jordans’ 1976 wills:

I further recognize that it has been the desire of my deceased husband and myself that at the death of the survivor of the two of us, that the Estate of the survivor should be divided one-half to his side of the family and one-half to my side of the family. In the past we have both had Wills to this effect. It is my desire that in this now my last Will, these intentions be carried out.

Attorney Zed Gant prepared Ms. Jordan’s 1984 will and retained the original 1976 documents in his file. The estate of Ms. Jordan, not including the money from the joint account that passed to Ms. Richards as the surviving party to the account, was valued in documents submitted in connection with Ms. Jordan’s 1984 will at $308,511.19. That remaining property presumably was distributed among Mr. and Ms. Jordan’s beneficiaries in accordance with the 1984 will.

None of these wills, or any other documents executed by the Jordans, expressly referred to a “contract” not to revoke a will.

On July 13, 1990, Ms. Jordan changed the status of the checking account she had opened at the Bank of Mulberry on March 12, 1981. Ms. Jordan added Ms. Richards’s name to the account and changed it from an “individual” account to a joint account “with survivorship.” Both Ms. Jordan and Ms. Richards signed the signature card. The account agreement explained that the funds would pass to the survivor upon the death of the other party.

Ms. Richards contributed no funds to the account and conceded in a deposition that Ms. Jordan added her name to the account so that she would be able to pay Ms. Jordan’s expenses. She was unaware of her right of survivorship in the account until after Ms. Jordan’s death.

Ms. Jordan, who had been living with Ms. Richards, died on November 6, 1995. Ms. Richards petitioned the Probate Court for probate of the 1984 will on November 28, 1995. She filed an inventory on March 15, 1996, and did not list the $121,700 in the checking account. As Ms. Richards indicated in her deposition, Paul Gant, an attorney for Ms. Jordan’s estate (who also is the son of Zed Gant, the attorney who prepared Ms. Jordan’s 1984 will), advised Ms. Richards that the funds passed directly to her and were not part of Ms. Jordan’s estate.

In their action against Ms. Richards, Mr. Jordan’s heirs claimed that Etta Jordan breached her agreement with Smith Jordan not to revoke her will and that they were entitled to specific performance of the agreement and thus to have the constructive trust imposed. They sought an order directing Ms. Richards to transfer the money and any proceeds from it into the Trial Court’s registry and ultimately to Ms. Jordan’s estate for distribution in accordance with the 1976 or 1984 will of Ms. Jordan.

Ms. Richards moved for summary judgment and asserted (1) her right to the funds from the account on the basis of § 23-32-1005 regardless of any contract embodied in the 1976 wills; and (2) alternatively, there was no valid contract in the first instance that limited Ms. Jordan’s ability to dispose of some of her property by placing it in a joint and survivor account with Ms. Richards.

Mr. Jordan’s heirs responded with their own motion for summary judgment and asserted that the 1976 wills implicitly created the contract not to revoke. They also relied on Ms. Jordan’s 1984 will and affidavits of persons who said they had heard statements by Mr. and Ms. Jordan concerning their plan to divide their property equally between the two sets of heirs.

The affidavit of Robert Shelby, Mr. Jordan’s nephew, was to the effect that he had a serious conversation with Mr. Jordan 'shortly before Mr. Jordan’s death in which Mr. Jordan expressed his wish that, at Ms. Jordan’s death, their property be divided on the 50-50 basis expressed in his will. Mr. Jordan abjured Mr. Shelby to see to it that it went as he wished. Apparently nothing was said about a contract.

The affidavit of Edwina Brooks, wife of a nephew of Ms. Jordan, stated that Ms. Jordan had told her about the 50-50 distribution plan and that she and Mr. Jordan had agreed “by their wills” that half their estate would go to his side of the family and that half would go to her side of the family. An affidavit by Roberta Benham, a niece of Ms. Jordan, reported that Ms. Jordan had told her that she and her deceased husband were “a company” and that everyone would share and share alike.

The Chancellor granted Ms. Richards’s motion for summary judgment relying on § 23-32-1005 and this Court’s holdings in Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996), and Hall v. Superior Federal Bank, 303 Ark. 125, 794 S.W.2d 611 (1990). He stated he was precluded from considering the arguments that the Jordans had entered into a contract not to revoke their wills and that Ms. Jordan’s possible intent that Ms. Richards inherit the money in the checking account was irrelevant. The Chancellor found there was no genuine issue of material fact “that the money which was in the account on the date [of] Decedent’s death became the property of Respondent [Ms. Richards] as the joint tenant by operation of law. Accordingly, Respondent’s Motion for Summary Judgment is granted.”

In the Hall case, we held that § 23-32-1005 made the creation of a joint bank account with right of survivorship “conclusive evidence” of the parties’ intent that the account was to pass to the survivor upon the death of the other and that it was error for the Chancellor to have considered other evidence of the decedent’s intent.

In the Nichols case, we reaffirmed the Hall decision and held that the statute was controlling of the distribution of the joint account with right of survivorship. There, the decedent had declared her intent in her will to dispose of her estate equally among her three daughters. Only one of the daughters’ names had been placed on several joint accounts with right of survivor-ship. We held that the statute made the establishment of the joint account with right of survivorship conclusive of the deceased depositor’s intent. While the case involved a conflict between the terms of a will and the terms of the statute, neither it nor the Hall decision involved a contract not to revoke.

The entire argument of Mr. Jordan’s heirs rests upon their contention that there was a contract not to revoke that has been breached by Etta Jordan. The Chancellor by-passed the issue of whether there was such a contract and, in effect, held that it did not matter in view of the statute and our interpretation of it. We are unwilling, based on the facts before us, to hold that § 23-32-1005 precludes the establishment of a constructive trust when a contract not to revoke a will has been properly established and the property in question has been transferred in violation of such a contract. Again, the question here is whether the existence of such a contract has been proven. Both parties, during oral argument, made it clear that we should decide the issue on its merits.

We review chancery decisions de novo, and when the record is sufficiently developed to enable us to do so, we decide the issues presented without remand. Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). In addition to Ms. Jordan’s 1984 will, we have before us the 1976 documents as well as the affidavits mentioned above. We regard the record as sufficiently developed to hold that Ms. Richards must prevail.

A “contract for reciprocal wills need not be expressed in the wills, but may arise by implication from circumstances which make it clear that the parties had such wills in mind and that they both agreed to the terms of the testamentary disposition made therein.” Iwerson v. Dushek, 260 Ark. 771, 774, 543 S.W.2d 942, 944 (1976), citing Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). In the case of Mr. Jordan’s 1976 will, the “testamentary disposition therein” permitted Ms. Jordan, if she survived him, to do as she pleased with personal property. Later there was the provision for the division of real estate among certain persons “to be divided as other monies and property. ...” In the case of Ms. Jordan’s 1976 will, there was an inconsistency because she wrote that Mr. Jordan could dispose of personalty at his “own decision” but expressed her wish that “monies” be divided equally between the heirs of each side of the family. While it might be said that the provisions concerning real property were “mutual,” there is doubt with respect to personalty such as the money Ms. Jordan placed in the joint account with right of survivorship.

Even if the 1976 documents were construed as attempts to create mutual or reciprocal wills with respect to the money in question, that would not support a conclusion that Ms. Jordan had made a contract not to revoke the provisions in her 1976 will.

Since 1981, we have had a statute in effect providing as follows:

(b)(1) However, a contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after June 17, 1981, can be established only by:
(A) Provisions of a will stating material provisions of the contract; or
(B) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(C) A writing signed by the decedent evidencing the contract.
(2) The execution of a reciprocal or mutual will does not create a presumption of a contract not to revoke a will.

Ark. Code Ann. § 28-24-101 (1987) (emphasis added). While the statute obviously does not apply in this case, it amounts, at least in part (b)(2), to a codification of the prior law that does govern here.

In Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962), a husband and wife had made reciprocal wills, each conveying all of his or her estate to the other with a provision for dividing the estate of the survivor equally among six children — three from his former marriage and three from her former marriage. Mr. Carr died, and Ms. Carr then revoked her will and conveyed property to her children contrary to the terms of the will she had revoked. Mr. Carr’s children sued Ms. Carr’s children, claiming that Ms. Carr’s will was irrevocable. We held that the evidence was insufficient to support the claim of a contract not to revoke. We declined to consider evidence of statements Mr. Carr had made prior to his death on the ground that “one party to an alleged contract cannot bind the other party by declarations made in the absence of the other party.” 235 Ark. at 583, 361 S.W.2d at 553. We noted that the wills said nothing about a contract not to revoke and that the mere fact that the wills had been reciprocal was not enough for us to infer such a contract. We concluded that a party seeking to prove a contract not to revoke a will must do so by “clear, cogent, and convincing evidence.” 235 Ark. at 586, 361 S.W.2d at 555. We noted that such a contract is like a contract to make a will. When there is an allegation of a contract to make a will, the standard requiring clear, cogent, and convincing evidence has consistently been applied. See, e.g., Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978); Kelley v. Pipkin, 268 Ark. 1009, 598 S.W.2d 102 (Ark. App. 1980). In the Barksdale case, we quoted Justice Millwee’s opinion in Janes v. Rogers, supra, as follows:

The fact that the parties have concurrently executed separate wills, reciprocal in terms, is not sufficient, of itself, to show that the parties had entered into a contract to make such wills; but the terms of such wills afford some evidence of the contractual relation and, when read in connection with other evidence which tends to show the execution of the contract, may establish that fact. Page on Wills, Sec. 1710; Annotation on Joint, Mutual and Reciprocal Wills, 169 A.L.R. 9.

Barksdale v. Carr, 235 Ark. at 584, 361 S.W.2d at 554.

One of the cases relied upon by Mr. Jordan’s heirs in their brief and cited to us in oral argument in response to questions concerning the existence of a contract not to revoke is Smith v. Estate of Smith, 293 Ark. 32, 732 S.W.2d 154 (1987). In that case, a joint will consisting of a single document signed by husband and wife contained reciprocal provisions leaving property to the survivor and providing that upon the death of the survivor the property was to be divided equally among children and grandchildren. Ms. Smith died, and Mr. Smith petitioned for a construction of the will. He contended the will imposed no restriction on the sale, transfer, or other alienation of the property. We held that Mr. Smith could use the property for necessities, support, and maintenance but could not otherwise alienate it.

The difference between the Smith case and this one is that the Smiths’ will contained no provision permitting disposition of any of the property at his or her “decision.” More important, it provided, “We intend that this be a mutual will, which will is executed on July 27, 1985, and pursuant to an agreement between us to make mutual wills, each leaving his property to the survivor and each agreeing that the survivor leaves his property to the heirs listed. . . .” Smith v. Estate of Smith, 293 Ark. at 33, 732 S.W.2d at 155 (emphasis added).

The 1976 wills of the Jordans do not contain a contract not to revoke. The “other evidence” is not “clear, cogent, and convincing” of the existence of such a contract. We affirm the Chancellor’s refusal to impose a constructive trust.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    James MUNSON v. STATE of Arkansas
    CR 97-247
    959 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      McKeel Law Firm, by: Agather McKeel and Suphan Law Firm, by: Charles V. Suphan, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Appellant James Munson was convicted of violation of a minor in the first degree and sentenced to fifteen years in prison. The jury found that Mr. Munson violated his wife’s fourteen-year-old sister who was visiting in the Munsons’ home when the crime occurred. Mr. Munson asserts a “cumulative error” argument. We decline to consider that argument as Mr. Munson’s abstract of the record does not demonstrate that any such argument was made to the Trial Court. Mr. Mun-son also contends that letters written by him to his wife should have been excluded from evidence on the basis of the marital privilege, Ark. R. Evid. 504. We hold that the letters were admissible as Mr. Munson was charged with committing a crime against a person who resided in the couple’s home. We also reject Mr. Munson’s several arguments concerning admissibility of evidence of Mr. Munson’s earlier abuse of a former female stepchild.

1. Cumulative error

Mr. Munson argues that the cumulative weight of the prosecutor’s acts of misconduct, consisting of improper remarks and a discovery violation, was so prejudicial that he was denied a fair trial and he was entitled to a mistrial. An appellant asserting a cumulative-error argument must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). As Mr. Munson’s abstract does not demonstrate that a cumulative-error objection or motion was made to the Trial Court, we do not consider the argument further.

2. Confidential communications

In the letters that Mr. Munson argues were erroneously admitted into evidence, Mr. Munson reminded his wife of their wedding vows, asked for her forgiveness, and stated that he had made a mistake but that it was not completely his fault. Mr. Mun-son moved to suppress the letters on the basis that they were privileged communications between husband and wife which were obtained without Mrs. Munson’s consent. The Trial Court denied the motion to suppress on the basis of Ark. Code Ann. § 5-28-105 (now codified as § 5-28-104 (Repl. 1997)) which states, in relevant part:

Any privilege between husband and wife . . . shall not constitute grounds for excluding evidence at any proceedings regarding adult abuse, sexual abuse, or neglect of an endangered or impaired adult, or the cause thereof.

The statute was thus apparently interpreted by the Trial Court as presenting an exception to the privilege in cases of abuse of a minor as well as abuse of an adult.

We need not decide whether the statute was properly interpreted because Ark. R. Evid. 504(d) states an exception to the marital privilege when “. . .one spouse is charged with a crime against the person or property of... (3) a person residing in the household of either.” The evidence showed that the victim was visiting in the Munsons’ home for one week. The question becomes whether she was “residing” there when the offense charged allegedly occurred.

Courts construe their own rules using the same means as are used to construe statutes. Gannett River Pub. v. Arkansas Dis. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Boston v. State, 330 Ark. 99, 952 S.W.2d 671 (1997); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996).

In statutory construction, it is settled that ‘reside’ is an elastic term to be interpreted in the light of the purpose of the statute in which such term is used; “reside” is a term whose statutory meaning depends upon the context and purpose of the statute in which it occurs.

In Re National Discount Corporation, 196 F. Supp. 766, 769 (W.D.S.C. 1961).

Black’s Law Dictionary 1308 (6th ed. 1990) defines “reside” as follows:

Live, dwell, abide, sojourn, stay, remain, lodge. To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, tó have a settled abode for a time, to have one’s residence or domicile; . . .

“Sojourning” is defined as “something more than ‘travelling,’ and applies to a temporary, as contradistinguished from a permanent, residence.” Black’s Law Dictionary 1391 (6th ed. 1990). A “lodging place” is defined as “[a] place of rest for a night or a residence for a time; a temporary habitation.” Black’s Law Dictionary 941 (6th ed. 1990).

In the context of Rule 504, the term “residing” applies to the circumstances of the victim in this case. She arrived in the Munsons’ home on July 31, 1995, and the incident occurred four days later. Her temporary “residence” with the Munsons presented the same opportunity to Mr. Munson he would have had if the victim had intended to remain in the household indefinitely.

We hold that the victim in this instance was “residing” in Mr. Munson’s household at the time of the incident, and thus the exception to the privilege for confidential communications between husband and wife applies.

3. Evidentiary rulings and discovery violation

Prior to marrying the sister of the victim in this case, Mr. Munson was married to another woman who had a daughter who thus became Mr. Munson’s stepdaughter. He argues that the Trial Court erred in denying his motion to suppress the testimony of the former stepdaughter who testified that she was sexually assaulted and physically abused by Mr. Munson.

At a pretrial hearing, the Trial Court, citing the pedophile exception, denied Mr. Munson’s motion to suppress testimony related to the alleged prior sexual assault. At trial, Mr. Munson renewed his motion to suppress the testimony of the former stepchild, and the Trial Court reaffirmed its earlier ruling on the admissibility of the testimony.

The former stepchild, who was fourteen years old at the time of trial, testified that on March 7, 1993, when she was ten years old Mr. Munson sexually assaulted her by inserting his finger into her vagina. At the time that incident occurred, Mr. Munson was married to the child’s mother. The child testified that she did not teE her mother about the incident untE two days after it occurred because she did not want Mr. Munson to hurt her. She testified that she thought that he would hurt her because he had slapped her and her brothers on prior occasions. The deputy prosecutor asked: “He had slapped you on other occasions, is that what you mean? Other than the time in the bedroom . . . was there ever any other times that the defendant did anything to you?” She responded in the affirmative, and the deputy prosecutor asked her to teE the jury about the incident. At that point, Mr. Munson objected on the grounds that aEegations of other instances should have been discovered to him if such incidents were to be the subject of examination. The State responded that the defense was made aware of the witness and could have interviewed her. The Trial Court overruled the objection. The chEd then testified that, on another occasion when she and Mr. Munson were alone in a boat, he sexuaEy assaulted her by inserting his penis into her vagina. She further testified that she did not teE anyone about this incident untE she told the deputy prosecutor two days before trial. At the bench, the deputy prosecutor told the Trial Court that the second incident was not initiaEy disclosed to defense counsel in discovery but that defense counsel was informed of it once the prosecutor learned of it.

a. Rule 404(b)

The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and wiE not be disturbed absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). Most recently, in Douthitt v. State, 326 Ark. 794, 800, 800, 935 S.W.2d 241, 244 (1996), we restated the rule as applied in cases of alleged sexual abuse of a child as follows: “This court has often said that when the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b).”

Mr. Munson raises several arguments to support his contention that the testimony of the former stepchild should not have been admitted. First, he argues that the testimony should not have been admitted because the allegations were never subject to any type of investigation; however, we do not consider this argument because Mr. Munson does not cite any authority to support it, see Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997), and we do not consider it to be convincing.

Second, Mr. Munson argues that the testimony should not have been admitted because the allegations were of acts too remote in time and place and because there was no connection between the former stepchild and the alleged victim in this case. He cites Larimore v. State, 317 Ark. 111, 124, 877 S.W.2d 570 (1994), where we considered whether the Trial Court erred in refusing to admit testimony that a particular young man, who was seen on the morning of the murder, had been caught entering the victim’s home and taking her property and had attempted to break into her home on another occasion. Those incidents occurred several months before the murder. We wrote that “[similarity and time connections are factors in determining the probativeness of the evidence, which must be weighed against the possibility of confusing the issues and wasting time. Some courts have said that there should be a sufficient nexus between the evidence and the possibility of another person’s guilt and that this evidence should do more than create a mere suspicion.” Id. at 124. Although the charge in the case was murder, there was no evidence of theft or burglary, and there was no evidence that the young man had acted violently toward the victim. Id. at 125. We upheld the exclusion of the evidence.

This case can be distinguished from the Larimore case because the testimony is about earlier incidents similar to the crime alleged here. The later violation of the former stepchild occurred on March 7, 1993, when she was ten years old and Mr. Munson placed his finger inside her vagina. The crime against the victim in this case allegedly occurred on August 4, 1995, when she was fourteen, and Mr. Munson inserted his finger and tongue in her vagina. Additionally, both of the incidents occurred when the victims were in Mr. Munson’s home or in his care. Mr. Mun-son cites no authority for his proposition that the testimony should not have been admitted because the allegations were too remote and there was a lack of a “connection” between the accusers.

In Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), we held it was error to deny a motion to sever five alleged sex offenses against minor girls. As one of the factors cited for reversal, we noted that the alleged offenses occurred at different locations. We did not hold that evidence of one or more of the alleged offenses could not be used in the prosecution of one or more of the other offenses. We do not agree that that decision is controlling of the issue here having to do with admissibility of evidence.

Third, Mr. Munson, citing Ark. R. Evid. 403, argues that the testimony should have been excluded because its probative value is substantially outweighed by the danger of unfair prejudice. Before testimony of another crime is admitted under Ark. R. Evid. 404(b), the probative value of the evidence must be weighed against the danger of unfair prejudice. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (citing Ark. R. Evid. 403). The standard of review of a trial court’s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Greene v. State, 317 Ark. 350, 878 S.W.2d 350(1994).

The Trial Court did not err in concluding that the probative value of the evidence outweighed the danger of unfair prejudice because the evidence involves a similar crime against a young girl who was of an age similar to that of the victim in this case. Both girls were in Mr. Munson’s care at the time that the incidents occurred.

Fourth, Mr. Munson argues that the pedophile exception is not satisfied in this case because the two children did not live in the same household. The rule has been specifically stated as follows: “[W]e [have] approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.” Mosley v. State, 325 Ark. 469, 473, 929 S.W.2d 693, 696 (1996). In Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), we recognized that the pedophile exception only requires that the victims have lived in the same household as the defendant. The exception does not require that the victims live together in the same household.

In his fifth argument, Mr. Munson contends that the testimony should not have been admitted because it does not establish that he had a proclivity to commit a specific act with a person or persons with whom he had an intimate relationship. In a related argument, he contends that the testimony should not have been admitted because it did not provide insight into the relationship and familiarity of the parties or their disposition and antecedent conduct towards each other. No authority is cited for these two contentions, and they are unconvincing because the testimony of the former stepchild showed that Mr. Munson has a proclivity toward sexually assaulting young girls in his care or household.

b. Discovery violation

Mr. Munson also argues that the Trial Court erred in admitting the former stepchild’s testimony about the occasion upon which Mr. Munson inserted his penis into her vagina because he was not informed of the testimony prior to trial. The State has no obligation to discover to defense counsel the substance of the anticipated testimony by State’s witnesses. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994).

c. Physical abuse

Mr. Munson argues that the former stepchild’s testimony that Mr. Munson slapped or hit her should not have been admitted because it did not satisfy the pedophile exception and because the probative value of the testimony was outweighed by unfair prejudice. Rule 403. He also argues that the testimony does not show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b). We do not consider this argument as there was no objection to the testimony at trial. Instead, defense counsel objected when the State asked whether there was an incident “other than in the bedroom” in which Mr. Munson “did anything” to her.“ The basis of the objection was that the State had not informed the defense about any such incident. Parties may not change their grounds for objection on appeal, and they are bound by the scope and nature of the objections and arguments presented at trial. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996).

Affirmed.


author: Tom Glaze, Justice.

text:
    Teresa SPAINHOUR v. DOVER PUBLIC SCHOOL DISTRICT
    97-533
    958 S.W.2d 528
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Roachell Law Firm, by: Travis N. Creed, for appellant.

      McCormick & Kennedy, P.A., by: David H. McCormick, for appellee.
   Tom Glaze, Justice.

Teresa Spainhour petitions for the review of the court of appeals’ three-three decision, affirming the trial court’s ruling that the Dover School District’s action complied with the Arkansas Teacher Fair Dismissal Act when the District voted not to renew Spainhour’s teaching contract. See Spainhour v. Dover School Dist., 57 Ark. App. 195, 943 S.W.2d 610 (1997). We reverse the trial court’s and court of appeals’ decisions.

The facts are essentially undisputed, and are correctly set forth in the court of appeals’ prevailing opinion. Our difference with the court of appeals’ opinion is its erroneous reliance on Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988). We repeat only those facts needed to understand the court’s misapplication of the Murray holding to Spainhour’s situation.

In 1988, Spainhour was hired by the District, and was a Chapter One high school teacher and coordinator for the Dover School District’s vocational educational program. The program was largely dependent upon the availability of federal funds. In 1993, the District’s superintendent, Dr. Richard Paul, became aware that federal funds might be cut, and he notified Spainhour of his strong concerns that the Chapter One program might be eliminated. Later, by letter dated April 12, 1994, Paul informed Spainhour that, in accordance with Ark. Code Ann. § 6-17-1506 (Supp. 1997) of the Teacher Fair Dismissal Act, he was notifying her that his recommendation to the Board at its May 9, 1994 meeting would be not to renew her contract for the 1994-1995 school year. Paul’s April 12 letter further related he was forced to make this recommendation because of the lack of sufficient funding of the Chapter One program, but advised further that, in the event an opening occurred within the district in an area for which she was qualified, Spainhour would be considered for any new position according to the terms of the district policy.

Although Ark. Code Ann. § 6-17-1509 (Repl. 1993) of the Teacher Fair Dismissal Act provides that a teacher, receiving a notice of nonrenewal, has thirty days after its receipt to request a hearing, the Board here held its meeting on May 9th — less than thirty days after receipt — when it first decided not to renew Spainhour’s contract. Spainhour timely requested a hearing by letter dated May 12, 1994, but the Board did not conduct that hearing until May 18, 1994, or after it had already accepted Dr. Paul’s recommendation not to renew Spainhour’s contract on May 9th.

By letter dated May 19, 1994, the Board formally notified Spainhour that the May 18th hearing had been conducted to consider Paul’s original nonrenewal recommendation, and the Board’s prior (May 9) decision to accept it. The Board’s letter concluded that, after hearing testimony and reviewing the evidence, the Board again accepted Dr. Paul’s recommendation.

Spainhour appealed the Board’s decision to circuit court, claiming the Board’s actions had violated the Teacher Fair Dismissal Act. Upon reviewing the Board’s May 18 proceedings and additional testimony presented on appeal, the trial court upheld the Board’s ruling.

In her appeal to the court of appeals, Spainhour again argued that, notwithstanding the Board’s statement at its May 18 meeting that it would reconsider its May 9 decision without any preconceived ideas, the Board clearly did not do so, since it did not renew Spainhour’s contract even though she had been denied an opportunity to be heard as required by law. The court of appeals disagreed with Spainhour’s argument that the Board failed to comply with the Teacher Fair Dismissal Act. In doing so, the court of appeals relied on Murray, 294 Ark. 403, 743 S.W.2d 789, and concluded that the Board’s May 18 hearing afforded Spainhour all of her rights under the Act and that the actions of the Board strictly complied with the Act. We must disagree.

The Murray decision was rendered in 1988 and, like the present case, the school board, upon recommendation of the superintendent, voted not to renew the teacher’s (Billy J. Murray’s) contract. Realizing that it had voted not to renew Murray’s contract before affording notice and an opportunity to be heard, the school board met again and rescinded its earlier vote. The school board then granted Murray’s subsequent request for a hearing and, at the conclusion of the hearing, voted again not to renew Murray’s teaching contract. The trial court upheld the board’s decision. Citing Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), the Murray court stated that, while the Teacher Fair Dismissal Act contemplates that notice and an opportunity to be heard be given a teacher before the school board votes not to renew the teacher’s contract, the court held the board’s rescission of its earlier vote on Murray’s contract constituted “substantial compliance” with the Act. In sum, the court said that because the school board had formally rescinded its prior vote and its attorney had cautioned board members not to base their vote on any preconceived notions, the board’s error had been cured.

Following the Murray decision, the General Assembly amended the Teacher Fair Dismissal Act by enacting Act 625 of 1989 [codified at Ark. Code Ann. § 6-17-1503 (Repl. 1993)]. Act 625 in relevant part provides as follows:

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this act and any amendments hereto, and the school district’s applicable personnel policies.

(Emphasis added.)

Since Act 625’s passage, the court has had four occasions to consider the strict compliance language employed by the Act. Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950 (1997); Lester v. Mount Vernon-Enola Sch. Dist., 323 Ark. 728, 917 S.W.2d 540 (1996); Hamilton v. Pulaski County Special Sch. Dist., 321 Ark. 261, 900 S.W.2d 205 (1995); Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). In Terry, the court made it very clear that substantial compliance no longer governs Teacher Fair Dismissal Act cases, as the General Assembly has spoken unequivocally in Act 625 of 1989 that there must be strict compliance with the Act before a nonrenewal, termination, or suspension may be put into effect. Id. at 322. And in Hannon, the court concluded that the Teacher Fair Dismissal Act requires strict compliance with all its provisions; otherwise, a nonrenewal, termination, suspension, or other disciplinary action by the school district is void. 329 Ark. at 271. The Hannon court further observed that, with respect to nonrenewal specifically, if notice of nonrenewal is not given to the teacher before May 1 of the contract year, the teacher’s contract is automatically renewed for the next school year. Id.

The record before us is barren of ambiguity — the Dover School District failed to comply with § 6-17-1509 of the Teacher Fair Dismissal Act by failing to give Spainhour a hearing before it voted not to renew her contract. The District argues that any “procedural error” that may have occurred as a result of its failure to provide Spainhour with a hearing prior to its vote not to renew her contract was cured when, at the beginning of the May 18 hearing, Spainhour’s representative questioned each board member as to whether they could be fair or impartial. However, although the Board’s subsequent meeting of May 18, 1994 might be said to have substantially complied with the hearing provisions of § 6-17-1509, substantial compliance is no longer the rule after Act 625’s passage.

In conclusion, we note the District’s contention that the May 9, 1994 meeting had been conducted solely for the purpose of eliminating the Chapter One program, not to consider whether to renew Spainhour’s contract. However, such contention is clearly not supported by the record. In particular, Dr. Paul’s April 12 letter states his recommendation to the Board would be not to renew Spainhour, and the trial court found the Board’s action not to renew Spainhour did not violate the Arkansas Teacher Fair Dismissal Act.

Accordingly, we remand the case to the trial court for entry of an order consistent with this opinion.

Reversed and remanded.

       No argument was offered below that Spainhour had waived any right she might have had under the Teacher Fair Dismissal Act. Cf. Lester v. Mt. Vernon-Enola Sch. Dist., 323 Ark. 728, 917 S.W.2d 540 (1996). Instead, the District’s arguments were presented in the context that the May 18, 1994 hearing was conducted in a timely manner and under such conditions as to assure strict compliance under the Act.


author: Tom Glaze, Justice. W.H. “Dub” Arnold, Chief Justice,

text:
    Jacqueline WALLACE, Individually and as the Administrator of the Estate of Larry Shannon Wallace v. J. Frank BROYLES, Individually; Dean Weber, Individually; James Woody Woodell, Individually; Harp’s Food Stores, Inc., Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter “Duke” Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd.
    97-170
    961 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998
    [Petition for rehearing denied March 5, 1998.  ]

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

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

      Jeffrey A. Bell, for appellee Dean Webber.

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

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

Shannon Wright was a varsity football player at the University of Arkansas who died of a self-inflicted gunshot wound on October 13, 1993. Shannon’s mother, Jacqueline Wallace, filed suit on March 10, 1995, and an amended complaint on May 11, 1995, against the nine defendant-appellees, alleging that their negligent, wilful, wanton, and malicious acts caused Shannon’s death.

In her complaint, Wallace alleged that controlled substances were stored and dispensed from the Broyles Athletic Complex without a proper registration from the Drug Enforcement Agency (DEA). Wallace asserted that, through the DEA registration of defendant-appellee Dr. John Park, defendant-appellee Dean Weber and others placed orders for Tylenol #3, Darvocet, and other drugs through defendant-appellees James Woodell and Harp’s Food Stores, and they had these controlled substances delivered to the athletic department at the University. Wallace further alleged that, over a fifteen-month period between November 1992 and January 1994 — relevant to when and immediately after Shannon played football — the Arkansas State Police and DEA conducted an audit of these controlled substances purchased by the athletic department. Their audit was alleged to reveal that 13,079 dosage units had been purchased and dispensed, but only 3,352 dosage units could be documented and accounted for. Wallace also charged that the controlled substances were kept in an unlocked metal cabinet in the athletic training room and that University employees and athletes obtained controlled substances from the athletic department without prescriptions, labels, instructions, or warnings as to dangers or side effects. Wallace’s complaint further alleged that defendant-appellees Drs. Tom Philip Coker, Tom Patrick Coker, and Walter Harris, through defendant-appellee Ozark Orthopaedic Clinic, authorized Weber to dispense controlled drugs to athletes; they kept no accurate records on the dosage units dispensed; and they failed to attend rehabilitation sessions of injured athletes.

Wallace further claimed that the foregoing improper dispensing of controlled substances took place even though, as early as June 1992, the NCAA had issued guidelines to defendantappellees Frank Broyles, Director of Athletics, and Dean Weber, Head Athletic Trainer, providing that physicians could not delegate the authority to dispense prescription medications to athletic trainers. Even though these guidelines and warnings concerning possible dangers to athletes were given to University personnel, Wallace alleged no action was taken to avoid those dangers or to comply with the guidelines. Wallace specifically stated that Broyles and Weber knew or should have known of the potential harm to the athletes, but instead they proceeded with conscious indifference to the possibility of injury to student athletes and others.

Finally, Wallace alleged that Shannon sustained a severe shoulder injury during a football game on September 11, 1993, which later resulted in his undergoing extensive physical therapy treatments and taking heavy dosages of Darvocet supplied by University personnel and others without advice or warning of the drug’s potentially dangerous side effects or of dangerous interactions with other drugs. Wallace’s complaint concluded with allegations asserting that Broyles’s and Weber’s conduct, which proximately caused Shannon’s death, was negligent, malicious, wilful and wanton, because among other things, they knew of the illegal dispensing of drugs in the athletic training room and knew of its danger to athletes. Wallace further concluded that Drs. Park, Tom Philip Coker, Tom Patrick Coker, Harris and the Ozark Orthopaedic Clinic were negligent in illegally dispensing narcotics with dangerous side effects, and that Shannon was given and he consumed such drugs, causing his death.

One year after the filing of Wallace’s amended complaint, the appellee doctors and the Ozark Orthopaedic Clinic filed a motion for summary judgment wherein they claimed no credible evidence existed upon which a jury could find Shannon had consumed any Darvocet prior to his suicide on October 13, 1993. Moreover, they claimed that Joe T. Barnes, a toxicologist, determined that there was no evidence that Shannon had any Darvocet or other drug except alcohol in his system at the time of his death. The appellee doctors asserted it was undisputed that Shannon, upset over breaking up with his girlfriend, Kit Carson, committed suicide after consuming large quantities of alcohol. Finally, the doctors submitted an affidavit given by Dr. Don McMillan, Chairman of the University Pharmacy and Toxicology Department, wherein McMillan averred that, based upon Barnes’s test, no Darvocet was found in Shannon’s body at the time of death. McMillan opined no depressive effect could have been present from Darvocet even if the drug had been consumed by Shannon prior to the forty-eight-hour period preceding his death.

One day after the doctors filed the motion for summary judgment, Woodell and Harp’s Food Stores filed theirs, also claiming that there was no evidence that Shannon had taken Darvocet prior to his suicide or that any of the defendants had provided Darvocet to Shannon. Subsequently, Broyles and Weber separately filed motions for summary judgment that essentially adopted the defenses asserted in the earlier summary judgment motions. Broyles added that, under Ark. Code Ann. § 19-10-305(a) (Repl. 1994), he is a state employee and immune from suit and civil liability for damages, from acts or omissions, other than malicious acts or omissions, occurring within the course and scope of his employment, except to the extent that he may be covered by liability insurance. Because he had no liability insurance coverage, Broyles asserted he was statutorily immune from suit and liability. In his summary judgment motion, Weber also adopted the defenses contained in the other defendants’ motions, but like Broyles, claimed statutory immunity. However, because Weber conceded having insurance coverage, he claimed immunity except to the extent of his coverage.

On October 18, 1996, the circuit court undertook review of the defendant-appellees’ motions for summary judgment, plaintiff-appellant’s responses, along with the parties’ respective, numerous pleadings, affidavits, depositions and exhibits, and after doing so granted the defendant-appellees’ motions. First, the trial court dismissed suit with prejudice against Broyles, finding him to be a state employee who enjoyed statutory immunity from tort liability, since he had no insurance coverage and there was no evidence of malicious acts or conduct on Broyles’s part. Second, the court found Weber a state employee and, as such, immune from suit, since there was no evidence of malice on his part. However, because Weber had liability insurance, the court found suit could lie against Weber to the extent of his insurance coverage, provided there was evidence showing he had been negligent. The circuit court next dismissed with prejudice the plaintiff-appellant’s suit against all defendant-appellees, finding no evidence of negligence and stating its reasons as follows:

(1) There is no evidence before the court upon which reasonable minds could differ that [Shannon] consumed any significant amount of Darvocet prior to his suicide on October 13, 1993.
(2) There is no evidence before the court upon which reasonable minds could differ that Darvocet, even if consumed by [Shannon], caused or contributed to [his] suicide on October 13, 1993.
(3) There is no evidence before the court upon which reasonable minds could differ that any act or omission of any of the defendants caused or contributed to [Shannon’s] suicide on October 13, 1993.

We initially point out the trial court’s use of the wrong standard when deciding to grant summary judgment. As discerned from the foregoing findings, the trial court determined there was no evidence upon which reasonable minds could differ that Shannon consumed any significant amount of Darvocet prior to Shannon’s suicide, or that the defendants’ acts caused his suicide. (Emphasis added.)

In its oral findings, the trial court also said that there is no evidence of any malice, and if there is any evidence, reasonable minds could not differ as to the conclusions to be drawn that there was no malice shown. (Emphasis added.) In addition, the trial court further held that “there is no evidence, sufficient evidence, to show that the actions of the defendants proximately caused [Shannon’s] suicide because there is no evidence that reasonable minds could differ to the fact that he was using Darvocet at the time of his suicide, which was the proximate cause of that suicide.” The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 824 S.W.2d 387 (1992). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).

Significantly, and especially relevant in the present case, the standard to be applied in summary judgment cases is whether there is evidence sufficient to raise a fact issue, rather than evidence sufficient to compel a conclusion on the part of the factfinder. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995). When using the correct standard applicable to the granting of summary judgment, we must hold the trial court committed prejudicial error.

We first consider Wallace’s negligence claims as alleged against Weber, Woodell, Harp’s Food Stores, Drs. Park, T. Philip Coker, T. Patrick Coker, Harris and the Ozark Orthopaedic Clinic, and whether a fact issue exists as to how these defendants’ negligence proximately caused Shannon’s death.

Negligence is defined to mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. See AMI Civil 3rd 301. To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner. Id. This court has held that to constitute actionable negligence, it is not necessary that the actor foresee the particular injury which occurred, only that the actor reasonably foresee an appreciable risk of harm to others. Jordan v. Adams, 259 Ark. 407, 533 S.W.2d 210 (1976). Proximate cause in a negligence action may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). Once again, because our review is of the trial court’s granting of a summary judgment, we need only decide if the pleadings and evidentiary documents raise a fact issue concerning whether the defendants’ acts or omissions were negligence in the circumstances described, and whether they should have reasonably foreseen an appreciable risk of harm to others.

In our review, the record reflects that Weber and others connected with the University athletic department had been given a memorandum circulated by the National Collegiate Athletic Association (NCAA) and that memo showed controlled substances were being illegally dispensed to athletes. Subsequently, the Arkansas State Police and the DEA investigated this matter, and their investigation revealed that, between November 1992 and January 1994, the University athletic department had purchased 13,079 dosage units of controlled substances, but that records could be found accounting for only 3,352 units. The fifteen-month audit showed that while the University training room bought 8,500 dosage units of Darvocet, only 1,025 of the units had been accounted for by appropriate records. The investigators determined that athletic trainers would place orders with Harp’s pharmacy department, and the drugs would be delivered to the athletic department. Defendant Woodell related that he filled prescriptions for the University athletic training room two or three times a week, nothing was in writing, and some drugs bore no labels or names. Defendant Dr. Park admitted giving trainers authorization to dispense drugs and said that he, individually, never dispensed medication to the athletes.

Officer Chris Anderson averred that Weber pled guilty to violating the Federal Controlled Substance Act by failing and refusing to keep records for storing and dispensing of controlled drugs. Dr. Park, the University team physician, admitted that he violated the federal drug act, and as a result, the DEA imposed restrictions on Park’s DEA registration, prohibiting him from dispensing controlled drugs for two years. The State Police investigation reflected that the controlled drugs were kept in unlocked metal cabinets freely accessible by the athletes, and that packets of drugs bore no instructions or warnings and were dispensed by Weber and trainers without authorization or doctor’s orders.

Drs. Park, Harris, Tom Philip Coker and Tom Patrick Coker of the Ozark Orthopaedic Clinic kept no accurate records to account for the drugs taken by the athletes, nor did these physicians attend the rehabilitation sessions for injured players after football games. Officer Anderson reported that Weber and these named physicians had been given the NCAA guidelines for dispensing drugs by Dr. Allen March, a physician at the University Student Health Center. Dr. March also gave the same information to the women’s athletic department, and while the men’s athletic department failed to comply with the guidelines and federal drug law, the women’s athletic department immediately removed all prescription medication from its training room. Anderson further reported that Weber, Dr. Harris and Associate Athletic Director Don Phillips met with Dr. March, but Weber actively resisted the idea of complying with the federal laws and new NCAA guidelines, or of hiring a new physician. Anderson said that Weber had a financial relationship as a sports medicine consultant with the Ozark Orthopaedic Clinic, and was paid $1,000.00 per month.

From the foregoing evidence, a fact issue clearly arises concerning whether Weber, Harper’s Food Stores and the named defendant-doctors were negligent in the illegal and careless manner in which they dispensed controlled drugs to University athletes. This is especially so given their expressed and inferred knowledge of the potential harm that would result to others who would be the recipients of illegally dispensed drugs. As noted earlier, to be negligent, the defendants here need not be shown to have foreseen the particular injury which occurred, but only that they reasonably could be said to have foreseen an appreciable risk of harm to others.

And while Weber, Woodell, Harp’s Food Stores, and the defendant-doctors urge that no proximate-cause evidence was shown that Shannon had been supplied or had consumed any of the controlled drugs in controversy, the record undermines that assertion. Although Wallace offered no direct testimony that Shannon received and consumed the Darvocet that was possessed and dispensed by the University’s athletic department, considerable circumstantial evidence was presented. First, we mention the evidence that Darvocet was the acknowledged painkiller used in the athletic program and that it is a mind-altering drug which contains the active ingredient of propoxyphene. The warning connected to such ingredient and made a part of the record reads as follows:

Propoxyphene products in excessive doses either alone or in combination with other CNS depressants (including alcohol), are a major cause of drug-related deaths. Judicious prescribing of Propoxyphene is essential for safety. Consider nonnarcotic analgesics for depressed or suicidal patients. Do not prescribe Propoxyphene for suicidal or addition [sic] prone patients. Because of added CNS depressant effects, cautiously with concomitant sedatives, tranquilizers, muscle relaxants, antidepressants or other CNS depressant drugs. Advise patients of additive depressant effects of these combinations with alcohol. Many Propoxyphene related deaths have occurred in patients with histories of emotional disturbances, suicidal ideation or attempts, or misuse of tranquilizers, alcohol, or other CNS active drugs. Do not exceed the recommended dosage. (Emphasis added.)

As previously discussed, given the potentially harmful side effects that could result from the unsupervised taking of Darvocet by the athletes, in general, a fact issue is posed that such harm could reasonably have been expected in the circumstances described here, where, it has been said, these defendants had illegally permitted large orders to be indiscriminately accessible to anyone entering the athletes’ training room. However, this circumstantial evidence is even stronger than showing the defendants’ acts or omissions might cause an appreciable risk to other athletes; it further raises the additional, narrow factual issue that Shannon, in particular, had obtained Darvocet from the athletic department and consumed it. This proximate-cause evidence bears, too, on the legal issue concerning whether the actions of Broyles and Weber were malicious, thus, making them liable in tort even though, as state employees, they otherwise would be statutorily immune from suit.

This court has held that malice may be inferred where the evidence indicates that the defendant acted wantonly in causing the injury or with a conscious indifference to the consequences. See Stein v. Lucas, 308 Ark. 74, 823 S.W.2d 832 (1992); National By-Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491, 731 S.W.2d 194 (1987); Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). We list the following items of evidence produced at the summary judgment hearing from which a fact issue could arise regarding whether Broyles and Weber knew or had reason to believe their conduct would likely cause injury, whether they had reason to believe harm could result to Shannon and whether Shannon had consumed Darvocet from the University athletic department. We first set out that evidence bearing on the fact issue of whether Shannon consumed Darvocet that was dispensed from the athletic program. That evidence is as follows:

(1) Large orders of Darvocet were distributed and unaccounted for by the athletic department.
(2) Darvocet was the acknowledged painkiller used in the athletic program.
(3) Weber and Park admitted to violating federal drug laws related to the storing, dispensing and accounting of Darvocet.
(4) Joe Toher, a strength coach, averred that, after Shannon injured his shoulder in a football game, Toher noticed Shannon’s erratic behavior, and Shannon told Toher that the University had Shannon on Motrin and “another pain medication.”
(5) Steve Robison, a neighbor of Shannon’s parents, said that Shannon told him he was “taking stuff’ for his shoulder injury for pain and the [medicine] was given to him through the University training room. Shannon told Robison that he was taking more than he should, and that he had to “load up on painkillers just to practice with the team.” Robison further averred Shannon said drugs were available to him at any time.
(6) Wallace testified that, while she had no personal knowledge Shannon ever took Darvocet, she saw him take two white caplets in August of 1993, and she later identified the caplets as looking like Darvocet pills shown her by the United States District Attorney.
(7) Although Drs. Joe T. Barnes, Chief Toxicologist for the State Crime Laboratory, and Don McMillan, Chairman of the University Pharmacy and Toxicology Department, respectively related that Shannon’s blood stream after death showed an alcohol content of .23% and no other drugs, and opined that Shannon had no depressant effect from Darvocet, Wallace furnished rebuttal statements. In this respect, Andrew Mason, a forensic toxicologist, testified that Barnes’s and McMillan’s interpretations were erroneous conclusions based on flawed and inadequate analytical studies and were scientifically unsupported. Mason questioned the defendants’ experts’ chain of custody as well as their testing procedures. In addition, Wallace’s other expert, a professor at the University of Oklahoma Pharmacy and Medicine College, opined that, even if the active ingredients in Darvocet had not been detected in Shannon’s blood sample, behavioral effects, including depression, could last for up to four weeks after an individual had stopped taking the drug.

In viewing the above evidence in the light most favorable to Wallace, the nonmoving party, we are compelled to hold a genuine issue of material fact exists regarding whether Shannon, prior to his suicide, had been consuming Darvocet from the University’s supply of the drug.

We next list those evidentiary items that create a fact issue on whether Broyles and Weber acted with such conscious indifference to the consequences that malice may be inferred. Those items are as follows:

(1) State investigation showed Weber reported only to Broyles.
(2) Broyles and Weber were knowledgeable of the 1992 NCAA guidelines and findings concerning the illegal dispensing of controlled substances, and while Broyles denied knowing about the dispensing of medication procedures in the training room until December 1993 (after Shannon’s death), he had requested recommendations in response to the NCAA memo.
(3) Broyles took no steps to change the illegal medication dispensing procedures and said that none of his staff or medical professionals advised him that changes should be made. In contrast, upon receipt of the NCAA guidelines, the women’s athletic department immediately removed all prescription medication from its training room.
(4) Broyles is alleged to have had prior knowledge of an earlier incident involving a football player’s taking Darvocet from the University athletic department’s drug supply and becoming addicted to Darvocet. Debbie Burns averred her husband, Billy, had played football for Broyles from 1971 to 1974, and Billy became addicted to Darvocet through the University football program. Ms. Burns claims Broyles offered her a legal setdement not to take legal action against him.
(5) Weber admitted that individuals in the training center were not qualified to dispense drugs to athletes and conceded he knew the practice was potentially harmful. In fact, Weber would use placebos in place of Darvocet when he thought a football player was requesting Darvocet too often.
(6) Kelli Sheffield, an assistant trainer and University instructor, stated that, because of Weber’s opposition, no changes were made in the handling and dispensing of medication.
(7) Weber pled guilty to a federal criminal charge of failing to keep records related to the dispensing of controlled drugs.
(8) Weber knew Shannon had an alcohol problem and suicidal tendencies, and was aware of the danger when giving medication to a person experiencing such problems.

Again, when reviewing the foregoing evidentiary items in the light most favorable to Wallace, we conclude that, at the least, a material issue exists regarding whether Broyles and Weber acted with a conscious indifference as to the consequences that University athletes, and Shannon in particular, could suffer harm due to the drug-dispensing procedures employed by the athletic department.

In conclusion, we hold the trial court committed prejudicial error in utilizing the wrong standard when ruling on the defendants-appellees’ summary judgment motions, and specifically erred in failing to hold the evidence raised fact issues as to whether Shannon consumed Darvocet illegally dispensed by the athletic department and whether those drugs contributed to or caused Shannon’s death. In so holding, we further conclude, as previously discussed, that at the summary judgment stage of this litigation, Broyles and Weber are not statutorily immune from suit for tort liability.

For the foregoing reasons, the trial court’s grant of the defendant-appellees’ motions for summary judgment is reversed and remanded.

Arnold, C.J., Corbin and Thornton, JJ., dissent.

W.H. “Dub” Arnold, Chief Justice,

dissenting. Although the majority correctly notes that the trial court applied the wrong evidentiary standard, it incorrectly concludes that Wallace offered proof of any genuine issue of material fact as to the essential element of causation. The majority’s attention to the irrelevant, albeit unsavory, practices of the Athletic Complex, ultimately eclipses the well-settled rules of causation and logical legal argument that settle this case. Proximate causation cannot be based on mere coincidence. Wirth v. Reynolds Metals Co., 58 Ark. App. 161, 169, 947 S.W.2d 401 (1997). Fair-minded people could not conclude, without speculation, that allegedly negligent distribution of narcotics by the Athletic Complex caused Shannon Wright’s suicide.

In meeting its burden of proof, Wallace and this Court engage in the logical fallacy known as post hoc, ergo propter hoc, literally “after this, therefore because of this.” The fallacy results from confusing sequence with consequence. See Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). To accept the argument that the mere timing of these two events, (i) negligent distribution of narcotics by the Athletic Complex and (ii) Wright’s suicide, is sufficient to establish a causal connection, is to have this Court accept the faulty reasoning of post hoc, ergo propter hoc.

This fallacy in reasoning is aptly described as “Hydra-headed, and although cut off again and again, has the characteristic of an endless removal.” Kramer Service Co. v. Wilkins, 186 So. 625, 627 (Miss. 1939). See also Wirth v. Reynolds Metals Company, 58 Ark. App. 161, holding that appellants failed to offer proof of proximate causation to support their negligence claim, relying on the persuasive authority of Western Geophys. Co. of America v. Martin, 174 So. 2d 706 (Miss. 1965), and the precedents upon which it relies, including Wilkins.

The Mississippi Supreme Court, in the Wilkins case, said:

That heresy is that proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is sufficient in probative force to take the question to a jury. Such was never the law in this state, and we are in accord with almost all of the other common-law states. . . . “Post hoc ergo propter hoc” is not sound as evidence or argument. . . . Possibilities will not sustain a verdict. It must have a better foundation. . . .

Wilkins, 186 So. at 627.

The Mississippi Supreme Court also noted, “It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.” The mere possibility that the injury complained of was caused by negligence is not sufficient to establish proximate causation or to sustain a verdict. Id.

First, the majority adheres its argument to the testimony of Wallace that she saw Wright with “two white caplets,” which she claims to have identified later as Darvocet. However, Wallace failed to present any evidence to the trial court that Wright obtained the two white caplets from the Athletic Complex.

Second, the majority relies on the affidavit of a professor at the University of Oklahoma Pharmacy and Medicine College, who averred that propoxyphene, the active ingredient in Darvocet, may not be detected in a blood sample although behavioral effects could persist for four weeks. This line of argument begs the question. Although the drag’s effect may allegedly linger in the body, there remains no evidence showing that Wright received any Darvocet from the Athletic Complex.

Further, the Chief Toxicologist for the State Crime Laboratory and the Chairman of the University Pharmacy and Toxicology Department presented evidence that Wright’s blood stream after death revealed an alcohol content of .23% and no other drugs. Additional forensic evidence suggested that Wright had no allergic reaction. Wallace testified that Wright was allergic to the drug Wygesic and that he had an earlier episode of a fine, red rash all over his body when he took that drug. The Dean of the College of Pharmacy at UAMS testified that the two major active ingredients in Wygesic are the same as those found in Darvocet, and that if a person is highly allergic or sensitive to Wygesic, he would have a high probability of suffering the same or similar allergic or sensitivity reaction to Darvocet. Moreover, Wallace noted that Wright had no reaction that she observed after taking the “two white caplets.” The medical evidence and testimony fail to offer proof of Wallace’s assertion that Wright took Darvocet or received Darvocet from the Athletic Complex.

Assuming, arguendo, that we permit a jury to reach the question of Wright’s tenuous identification of the two caplets as Darvocet, we must then permit a jury to consider whether two caplets constitute “excessive doses” of Darvocet, the amount of the product identified in the product warning as linked to a “major cause of drug-related deaths.” Again, note that no drugs were found in Wright’s system. There is no evidence that Wright’s death was a “drug-related death,” and the only evidence alleged is that Wallace saw Wright on one occasion with a total of two caplets that she later identified as Darvocet. There is no genuine issue of material fact for the jury to weigh.

Third, the majority poises its argument on the affidavit of the strength coach who stated that Wright told him that he was taking Motrin and “another pain medication.” There is no evidence presented that this “pain medication” was Darvocet. Additionally, there remains the absence of any shred of evidence that the “two white caplets” identified by Wallace were obtained from the Athletic Complex.

To deny appellees’ motion for summary judgment, we must have some evidence finking these “two white caplets” to the Athletic Complex. The majority enumerates the evidence that thousands of units of prescription drugs were distributed to athletes, that large orders of Darvocet were distributed, and that Darvocet was the acknowledged painkiller. However, the mere allegation that Darvocet was available at the Athletic Complex is insufficient to establish proximate causation or to sustain a verdict. Moreover, Wallace failed to offer any testimony from any physical trainer, fellow athlete, or University personnel in support of her theory that Wright obtained these “two white caplets” from the Athletic Complex. Indeed, the record is devoid of any testimony substantiating a causal connection. A myriad of possibilities remains as to where Wright could have gotten the “two white caplets.” A jury could only conclude based on mere speculation and conjecture that he got the caplets from the Athletic Complex.

In St. Paul Fire & Marine Insurance Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995), this Court considered proof of proximate causation in the negligence context. St. Paul involved an elderly man whose injury and death might have been attributable to either a fall at a hospital, an earlier fall at home, or an aneurysm. The medical testimony indicated that a conclusion concerning the cause of the injury would be purely speculative, and all that remained was anecdotal information from a variety of witnesses. Noting that the jury was left to speculation and conjecture in deciding between two equally probable possibilities, this Court held that the trial court erred in failing to direct a verdict on the issue of the sufficiency of the medical evidence of proximate causation of injury and death.

Although proximate cause may be proved by either circumstantial or direct evidence, the proof must tend to eliminate other causes that may fairly arise from the evidence. St. Paul, 319 Ark. at 306 (citing McAway v. Holland, 266 Ark. App. 878, 599 S.W.2d 387 (1979)). Arguably, the evidence in St. Paul was more compelling than that in the instant case. The jury in St. Paul had testimony relating to the two falls as possibilities to consider. Here, we have no evidence of any causal connection with the one theory advanced by Wallace. The appellee in St. Paul could at least prove that the decedent had fallen twice. Here, we have no evidence that Wright obtained any Darvocet from the Athletic Complex or that he ever took any Darvocet obtained from any source whatsoever.

One cause of Wright’s death that fairly arises from the evidence is that Wright committed suicide because he was depressed over the breakup of his girlfriend, Kit Carson. Wright was a troubled young man who had been an alcoholic for years. His alcohol and emotional problems existed prior to his September 11, 1993, football injury and continued until his death. He had threatened to commit suicide on several occasions. On one occasion, after an argument with his girlfriend, he slit his wrists. Prior to his suicide, he had broken up with his girlfriend. The night he shot himself, Wright told a friend that he was “very hurt” over the breakup “and didn’t care what was going to happen from then on . . .” As Wright stated in a note he wrote shortly before his death, “I have recently just suffered the biggest loss of my life. Her name was Kit. There is nothing left but one of two alternatives. Either death or dedication to work. For now I’ll choose the ladder [sic], so I will plan out every step of the day . . .Condition — miserable, empty, burdened.” He unfortunately chose the first option. The evidence offered by Wallace does not tend to eliminate this conceivable yet tragic possible cause of Wright’s death.

In another apposite case, a person who had been in an automobile wreck and no longer had “any get-up-and-go” suddenly died four weeks after the wreck. McAway v. Holland, 266 Ark. App. 878, 599 S.W.2d 387 (1979). In McAway, the Arkansas Court of Appeals affirmed the trial court’s finding that the death was not proximately caused by the accident and observed that lay testimony on cause of death is unacceptable. The court noted:

There is no circumstantial evidence — even the most scant — which suggests a causal connection between the accident and death. The mere fact both happened about a month apart proves nothing. If there had been some evidence of causal connection maybe the lay testimony might have been slight corroboration. However, standing alone it is nothing. . . .

McAway, 266 Ark. App. at 883.

The majority opinion clouds the dispositive issues in this case that mandate affirmance. Even if appellees’ failure to implement appropriate procedures for handling the distribution of prescription drugs amounted to negligence, Wallace fails to make the causal connection between that negligence and her son’s suicide, an essential element in her negligence action. Moreover, the majority’s conclusion that appellees acted with malice is wholly unsupported by the evidence.

A review of the pleadings, depositions, and other filings reveals, in my opinion, that there is no genuine issue of any material fact. Viewing all evidence in the light most favorable to Wallace, and resolving doubts against the appellees, the appellees are entitled to summary judgement as a matter of law. After appellees made a prima facie showing of entitlement to summary judgment, Wallace failed to meet proof with proof, and she is not entitled to rest on mere allegations or conjecture but must set forth specific facts demonstrating a genuine issue of fact.

Accordingly, I believe that the trial court’s judgment granting summary judgment in favor of appellees should be affirmed.

Corbin and Thornton, JJ., join.

       A tenth defendant named Lester Hosto was sued, but later was non-suited without prejudice.

       While there is no need to dwell on the point, the dissenting opinion relies on cases involving directed verdict rulings and verdicts, and whether substantial evidence existed to support a verdict. The only case cited that concerns a motion for summary judgment is a court of appeals case, Wirth v. Reynolds Metals Co., 58 Ark. App. 161, 947 S.W.2d 401 (1997), where, unfortunately, the court mistakenly utilized directed-verdict cases when determining whether the trial court erred in granting Reynolds Metals Company a summary judgment. For a correct analysis, see the dissenting opinion in Wirth, 58 Ark. App. at 170.

       Because Weber, as a state employee, may be hable in tort for negligence to the extent of his insurance coverage, he, unlike Broyles, is included in the analysis and proof on negligence.

       Dr. March had no authority over the athletic department.

       We find nothing in the record to indicate the defendants moved to strike the affidavits of Toher or Robison, nor did they obtain a ruling from the trial court regarding their admissibility. Further, it was never argued, on appeal or below, that Toher’s statement was inadmissible hearsay.

        Id.