author: Andree Layton Roaf, Justice. Tom Glaze, Justice, Donald L. Corbin, Justice,

text:
    The PRUDENTIAL INSURANCE COMPANY of America v. Melissa Conrad FRAZIER and Mellonie Conrad
    94-1320
    914 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      The Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellant.

      Crawford Law Firm, by: Michael Crawford, for appellees.
   Andree Layton Roaf, Justice.

Appellant, the Prudential Insurance Company of America, appeals from a judgment in an action for accounting, in which the chancellor awarded $30,519.60 in insurance proceeds to appellees, Melissa Conrad Frazier and Mellonie Conrad. The court of appeals certified this case to us as one requiring interpretation of the Probate Code of 1949. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(d)(1) and (a)(3). For reversal, appellant argues that it properly paid the insurance proceeds to appellees’ guardian and that, under the law of trusts, it had no further obligation to appellees as beneficiaries. We find no merit to these arguments and affirm.

Appellees were aged eight and nine when their mother died on August 27, 1983. On October 25, 1983, an order was entered by the Garland County Probate Court appointing their uncle, Jerry Reid, as guardian of their persons and estates. The order stated that “bond shall be determined.” Bond was not determined and letters of guardianship were apparently never issued to Mr. Reid. On November 10, 1983, appellant paid the appellees’ $30,519.60 share of their mother’s life insurance proceeds to Reid as guardian of their estates. Reid and his wife adopted appellees in July 1984. After reaching the age of majority, appellees initiated this suit in 1994 by filing a petition for an accounting and for judgment, alleging that both Reid and appellant had failed and refused to account for the life insurance proceeds. After a bench trial, the chancellor found that Reid spent the proceeds for improper purposes and without court approval, that appellant and Reid were jointly and severally liable to appellees, and that Reid was liable to appellant for any payment of the judgment appellant made.

Unlike the dissenters, we have no difficulty in concluding that the chancellor had subject-matter jurisdiction over an action against an insurance company and former guardian for accounting and judgment. See Nelson v. Wood, 199 Ark. 1019, 137 S.W.2d 929 (1940) (chancellor imposed trust on property titled in guardian’s name but purchased with minor’s funds); Hancock v. Hancock, 197 Ark. 853, 125 S.W.2d 104 (1939) (chancery court had jurisdiction to hear custody dispute between natural mother and guardian previously appointed in probate court); Grogan v. Weatherby, 196 Ark. 705, 119 S.W.2d 557 (1938) (chancellor determined that guardian’s failure to give bond rendered proceeding void and set aside partition sale of minor’s land); A&P’s Hole-In-One, Inc. v. Moskop, 38 Ark. App. 234, 832 S.W.2d 860 (1992) (accounting is an equitable remedy; provides a means to compel one entrusted with property of another to render account of his actions, and for recovery of any balance due).

Appellant first argues that it properly paid the insurance proceeds to Reid as appellees’ guardian and was under no duty to ensure that the guardian would carry out his obligations. This argument challenges the chancellor’s finding that appellant “paid insurance proceeds to Reid without court authority and without [ejnsuring the beneficiaries would be properly protected.” Appellant presented no evidence at the bench trial. Appellant did, however, move for a directed verdict at the close of all the evidence arguing that it had properly paid Reid the proceeds on November 10, 1983, because Reid had been appointed guardian by court order entered October 25, 1983.

Appellees admitted into evidence, without objection, a certified copy of the entire file of the guardianship proceedings. The October 25, 1983 order appointing Reid guardian stated that “bond shall be determined.” There is nothing in the guardianship proceedings indicating that bond was ever determined or issued, or that letters of guardianship were ever issued. Appellees introduced a notice from the Probate file dated October 10, 1984, directing Reid to file an inventory of appellees’ assets, and Reid’s response dated November 9, 1984, which listed each appellee’s sole asset as $437.00 monthly social Security benefits. The chancellor found that Reid did not disclose the insurance proceeds he received as guardian from appellant almost one year earlier. The chancellor also found that, because the proceeds were not disclosed, no bond or additional accounting was required by the court in the guardianship proceedings.

On appeal, appellant argues it properly paid the proceeds to Reid as guardian pursuant to the October 25, 1983 order because, at that time, there was no requirement that a bond be issued in a guardianship proceeding and Reid had accepted the appointment as guardian. Appellees respond to this argument with case law to the effect that a guardian is not appointed until bond has been issued. See e.g., Sturdy v. Jacoway, 19 Ark. 499 (1858).

The parties’ reliance on the requirement of a bond or on Reid’s acceptance of appointment as the determinative issue is misplaced. The issue before us is whether appellant paid the proceeds to Reid without court authority. This issue is controlled by Ark. Stat. Ann. § 57-618 (Repl. 1971), in effect at the time the proceeds were paid, which provided that letters of guardianship, “until revoked or cancelled by the court, shall protect persons who, in good faith, act in reliance thereon.” As determined by the chancellor, no bond was ever set and no letters of guardianship were ever issued. The Probate code of 1949 did not authorize appellant to pay Reid the proceeds on the strength of a court order conditionally appointing him guardian, with bond yet to be determined. We find no error in the chancellor’s ruling in this regard.

Appellant’s second argument for reversal is that, after paying the proceeds to the guardian, it had no further obligation to appellees under the law of trusts. We answer this argument summarily. First, the argument is premised upon the assumption that the trial court found a post-payment obligation of appellant to appellees as beneficiaries deriving from the law of trusts. The trial court made no such finding or any ruling that appellant had a continuing obligation to appellees after it paid the proceeds. Rather, the ruling was that appellant did not ensure that it properly paid the proceeds to the guardian and in fact paid the proceeds without court authority. Second, the abstract does not reveal that appellant relied on the law of trusts in the proceedings below. The record on appeal is confined to that which is abstracted. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). This court does not address arguments that were not raised below. Wacaser v. Insurance Comm’r, 321 Ark. 143, 900 S.W.2d 191 (1995).

We find no merit to appellant’s arguments and affirm the chancellor’s order.

Dudley, Newbern, and Corbin, JJ., dissent.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. The suggestion that equity has no subject-matter jurisdiction in this case wholly ignores settled law and the facts. Although the majority opinion concludes the chancery judge here had jurisdiction of this case, I write to explain why the chancellor had the authority to rule as he did.

Melissa and Mellonie Conrad were ages eight and nine years old when their mother, Betty, died in August of 1983. Betty had a life insurance policy with The Prudential Insurance Company of America which provided $30,519.60 in proceeds to the two girls. After Betty’s death, Melissa and Mellonie went to live with their uncle, Jerry Reid, who was appointed their guardian on October 25, 1983. The guardianship order provided a “bond shall be determined,” but none was. Nonetheless, Prudential sent the insurance proceeds to Reid, stating the proceeds were “for the person and estates of Melissa and Mellonie Conrad,” and Reid concedes he knew those proceeds belonged to the two girls. He also began receiving Melissa’s and Mellonie’s social security payments, totalling $847.00 a month. Reid initially placed the life insurance proceeds in certificates of deposit issued for the girls’ benefit.

Reid testified that he became disabled sometime in 1983 and did not work, and while he made claims for workers’ compensation and social security benefits, he only commenced receiving them between 1986 and 1988. Meanwhile, Reid purchased a bigger house in 1984 and admitted he used some of the girls’ life insurance proceeds to do so. In the same year, he adopted Melissa and Mellonie, and said that he understood when he became their adopted father “their assets were ours and our assets were theirs.” Nevertheless, Reid asserted “the house does not contain money that belongs to the two young ladies.” Reid claimed he used the two girls’ monies to care for them, as well as his other four children.

Melissa and Mellonie brought this action, alleging Reid was their appointed guardian when he received their life insurance proceeds from Prudential. They averred Reid, as guardian, breached his fiduciary duty and perpetrated fraud upon them by failing to disclose, protect, and deliver the assets, and such acts on Reid’s part were intentional with knowledge of his fiduciary duty. The two women asked for a full accounting from Reid and Prudential, alleging Prudential, too, had failed to account for the life insurance proceeds or to require proof of bond when it paid Reid the proceeds. After a trial and being informed of Melissa’s, Mellonie’s and Reid’s allegations and testimony of what occurred, the chancellor awarded damages to Melissa and Mellonie.

As is set out clearly and succinctly in A & P’s Hole-in-One, Inc. v. Moskop, 38 Ark. App. 234, 832 S.W.2d 860 (1992), the court of appeals stated that an accounting is an equitable remedy designed to provide a means for compelling one, who because of a confidential or trust relationship has been entrusted with property of another, to render an account of his actions and for the recovery of any balance found to be due.

As this court said in Walters-Southland Institute v. Walker, Trustee, 217 Ark. 602, 232 S.W.2d 448 (1950), the existence of a fiduciary relation is one of the well-recognized grounds for equity jurisdiction of a suit for an accounting. An accounting may be had against a fiduciary to determine whether there is, in fact, anything due the plaintiff. Here, Reid, as guardian of Melissa’s and Mellonie’s estate, was a fiduciary. Omohundro v. Erhart, 228 Ark. 910, 311 S.W.2d 309 (1958). Consequently, Melissa and Mellonie, as wards and plaintiffs, have every right to ask equity to make Reid and Prudential account for those monies or assets that might be due the women, and chancery courts clearly had the authority to grant such relief.

Donald L. Corbin, Justice,

dissenting. This dissent focuses on this case to illuminate the ageless determination that probate courts have exclusive jurisdiction of guardianship matters concerning the persons and estates of wards. The chancery court lacked subject-matter jurisdiction of the guardianship matters in this case, and the case therefore should be reversed and dismissed. Moreover, this case illuminates the confusion this court creates when it interprets our antiquated constitutional judicial article and attempts to blend its separation of jurisdiction of trial courts into circuit, chancery, probate, juvenile, and various combinations thereof. While I agree with the majority, based on the cases cited therein, that chancery courts have jurisdiction of matters concerning trust, fraud, and accountings and fiduciaries other than those relating to guardianships, I do not agree that the chancery court has jurisdiction of such issues or claims when they concern guardianships.

This court has recently addressed the issue of a chancery court’s lack of jurisdiction over guardianship matters in Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995), where we affirmed in part a chancery court’s rulings on issues of fraud and constructive trust, but reversed and dismissed in part, for lack of subject-matter jurisdiction, the chancellor’s appointment of a guardian. There, we explained the subject-matter jurisdiction relationship between chancery and probate courts as follows:

Jurisdiction of the probate court over all matters of guardianship, other than guardianships ad litem in other courts, is exclusive. Ark. Const. art. 7, § 34; Ark. Code Ann. § 28-65-107(a) (1987) (emphasis added). The section of the Arkansas Constitution that is now Article 7, section 34, did not consolidate the chancery and probate courts, and, while the judge of the chancery court is also the judge of the probate court, the judge conducts each court separately. Wooten v. Penuel, 200 Ark. 353, 140 S.W.2d 108 (1940). The section does not permit courts of chancery to lift matters over which the probate court has exclusive jurisdiction out of probate courts and apply equitable principles in disposing of controversies cognizable only in probate. Id. at 357-58, 140 S.W.2d at 111; see also Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976) (“probate courts are vested with exclusive jurisdiction in matters relative to . . . guardians. . . .”); Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968) (holding that chancery and probate courts are separate tribunals, each having [its] own jurisdiction and that a chancery court cannot “inherit jurisdiction” from the probate court in same county); Janssen v. Blissenbach, 210 Ark. 22, 193 S.W.2d 814 (1946) (stating that the two courts are wholly distinct and operate independently of one another and that [the] trial court, sitting as chancery in that case, correctly did not pass on questions reserved for probate).

Dent, 322 Ark. at 265-66, 909 S.W.2d at 307.

Subject-matter jurisdiction is determined from the pleadings. Union Pac. R.R. Co. v. State ex rel. Faulkner, 316 Ark. 609, 873 S.W.2d 805 (1994). In this case, the complaint was for an accounting and judgment. As against Reid, appellees alleged that he breached his fiduciary duty and committed fraud. As against appellant, appellees alleged that appellant negligently paid the proceeds to Reid by failing to verify Reid’s authority to collect the proceeds and by failing to require proof of bond. As against both appellant and Reid, appellees requested an accounting of and judgment for the proceeds. Thus, the critical and threshold issues were whether appellant paid the proceeds to Reid as the duly qualified, appointed, and serving guardian, and the accounting of the proceeds. Such determinations can only be made by the probate court — the court that is given exclusive original jurisdiction of guardianship matters. Ark. Const. art. 7, § 34; Ark. Code Ann. § 28-65-107(a) (1987); Dent, 322 Ark. 256, 909 S.W.2d 302. There can be no cause of action for fraud, breach of fiduciary duty, or negligence until the probate court has entered a ruling on the accounting and judgment for deficiency of the proceeds. Thus, while the pleadings raise tort issues that are cognizable in chancery court, the threshold issues of whether appellant properly paid the proceeds to Reid as the duly qualified, appointed, and serving guardian of appellees’ persons and estates, and the accounting of the funds in appellees’ guardianship estates are not cognizable in chancery court. The chancery court was not permitted to lift the guardianship matter from the probate court’s exclusive jurisdiction. Id.

The majority opinion contributes to the jurisdictional confusion by concluding that the chancery court has jurisdiction of this case, without overruling Dent.

The majority opinion illustrates the problems courts face and compound when they erroneously exercise subject-matter jurisdiction by referring to Reid as appellees’ “former” guardian. Such a reference assumes facts not in the record. Under current law, a guardianship of the estate of a ward based solely on the ward’s minority does not terminate automatically upon the ward’s attainment of majority. See generally Ark. Code Ann. § 28-65-401 (Supp. 1995). There is nothing in this record to show that the probate court has approved a final accounting of the appellees’ accounts as wards and terminated Reid’s guardianship. An accounting of a ward’s account and termination of a guardianship are matters that lie exclusively in probate court. Section 28-65-107.

The majority’s assumption that Reid is the “former” guardian magnifies the lack of chancery’s subject-matter jurisdiction in this case. Moreover, it demonstrates that the chancery court assumed jurisdiction of this case too soon. The chancellor should have transferred the case to probate, settled the accounting, and determined whether Reid was the duly qualified, appointed, and acting guardian. Once those determinations were made by the probate court, the chancellor could then have exercised jurisdiction of the fraud and negligence claims. See, 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992); In Re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992); Forehand v. American Collection Serv., Inc., 307 Ark. 342, 819 S.W.2d 282 (1991).

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Damion Jemon BROWN v. STATE of Arkansas
    CR 96-73
    913 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Chris Tarver, for appellant.
    No response.
   Per Curiam.

Appellant, Damion Jemon Brown, by his attorney, has filed for a rule on the clerk.

His attorney, Chris Tarver, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


author: Bradley D. Jesson, Chief Justice.

text:
    Mary SKAGGS and James Skaggs v. Philip JOHNSON, M.D., and Richard Nix, M.D., Individuals, and Little Rock Orthopedic & Sports Medical Center
    95-982
    915 S.W.2d 253
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Satterfield Law Firm, by: G. Randolph Satterfield and Diana Hamilton Turner, for appellants.

      Friday, Eldredge & Clark, by: Guy Alton Wade and Clifford W. Plunkett, for appellees.
   Bradley D. Jesson, Chief Justice.

This is a medical malpractice case. Appellants Mary and James Skaggs appeal from a trial court’s order granting summary judgment in favor of appellees, Drs. Philip Johnson and Richard Nix and the Little Rock Orthopedic & Sports Medical Clinic. On appeal, the Skaggses argue that the trial court erred in granting summary judgment and in ruling that expert testimony was necessary to meet their burden of proof. We affirm.

Mary Skaggs was in an automobile accident and suffered a compound fracture of her right leg on September 21, 1992. Approximately one inch of bone was exposed, and the wound was extremely dirty from the accident. Dr. Philip Johnson, an orthopedic surgeon at Little Rock Orthopedic & Sports Medical Clinic (“the Clinic”), performed surgery on Mary’s leg to repair the fracture. A penrose drain tube was placed in her leg to drain any infectious materials from the wound. Three days after the surgery, appellee Dr. Richard Nix, another orthopedic surgeon at the Clinic, was making rounds and pulled the penrose drain tube out of Mary’s leg. He experienced difficulty in removing the drain and believed that a portion of it could have been left inside. Both surgeons decided to leave the piece of tube inside Mary’s leg, as they believed that irrigating and probing the wound further could cause greater potential for infection. Mary was discharged.

Dr. Johnson continued to treat Mary during subsequent visits. On December 22, 1992, early union of the bones in her leg became apparent. One month later, redness and swelling were noted, and Mary was treated with oral antibiotics. On March 15, 1993, Mary underwent surgery, during which a five millimeter piece of penrose drain tube was removed from her leg. Dr. John Schultz, a lung and infectious disease specialist, was consulted to administer antibiotics.

On March 7, 1994, Mary Skaggs and her husband, John Skaggs, filed a complaint against Drs. Johnson and Nix and the Clinic, alleging medical malpractice. They claimed that the doctrine of res ipsa loquitur applied on the basis that the portion of the penrose drain tube left in Mary’s leg was a foreign object within the exclusive control of the defendants. The Skaggses claimed that Mary suffered osteomyelitis, an infection of the bone.

The physicians and the Clinic filed a motion for summary judgment on April 28, 1995. Attached to the motion along with pleadings and medical records were the affidavits of Drs. Johnson, Nix, and Michael Weber, an expert orthopedic surgeon, all of whom refuted the Skaggses’ allegations of negligence and proximate cause. Particularly, Dr. Weber averred that he was aware of the degree of skill and learning ordinarily possessed and used by members in the medical profession in good standing engaged in the practice of orthopedic surgery in Little Rock. Based on his review of the case, it was Dr. Weber’s opinion that Drs. Johnson and Nix used and applied their best judgment with reasonable care. Dr. Weber found no evidence of negligence or proximate causation.

In response, the Skaggses maintained that no expert testimony was necessary. The Skaggses also pointed to the deposition of Dr. Schultz, in which he averred that the piece of penrose drain left in Mary’s leg probably caused her infection and should have been removed. Following a hearing, the trial court granted the appellees’ motion for summary judgment. In making its ruling, the trial court acknowledged Dr. Schultz’s opinion; however, it concluded that, while his opinion was general and based on his opinion as an infectious disease expert, it did not address the surgical decision by an orthopedist. The trial court entered an order dismissing the case, from which the Skaggses now appeal.

Our standards for summary judgment review can be summarized as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995)(other citations omitted). We have recently reviewed the elements necessary to sustain a claim for medical malpractice in Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995):

[T]o sustain a claim for medical malpractice a plaintiff must prove, among other elements, the applicable standard of care and the defendant’s breach thereof. The standard of care applicable to a case is defined by statute as “the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality.” Ark. Code Ann. § 16-114-206(a)(1) (1987).

322 Ark. at 611, 911 S.W.2d at 249.

On appeal, the Skaggses continue to assert that no expert testimony was required in this case, as the asserted negligence was within the comprehension of the jury, who could infer that the appellees’ acts or omissions constituted proximate cause of Mary’s damages. They contend that Dr. Schultz’s deposition, in which he averred that the piece of penrose drain left in Mary’s leg probably caused her infection and should have been removed, presented a fact question that was sufficient to survive a motion for summary judgment. The guidelines for determining whether expert testimony is required in a medical malpractice case are as follows:

It is well settled that a plaintiff must present expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence.

Robson v. Tinnin, 322 Ark. at 610-611, 911 S.W.2d. at 249; Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

The Skaggses further maintain that the Arkansas Court of Appeals’s decision in McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (Ark. App. 1980), is controlling. We disagree. In that case, plaintiffs McClain sued Dr. Giles for medical malpractice, alleging that the surgeon had improperly used a knife during Mrs. McClain’s disc surgery, causing it to break. Dr. Giles made a medical decision to leave the tip in Mrs. McClain’s back rather than risk nerve damage by trying to remove it. A jury trial was waived, and the trial judge ruled that Dr. Giles was not negligent. The McClains appealed on the ground that the decision was clearly against the preponderance of the evidence, and the Court of Appeals affirmed. In so holding, that court neither was presented with nor addressed the issue of whether the case was a “foreign object” case excepting the McClains from the expert testimony requirement.

In this case, Drs. Johnson and Nix made a conscious, medical decision to leave the piece of penrose drain tube in Mary’s leg. As such, this case is distinguishable from a typical foreign object case, as those cases involve the inadvertent leaving of objects in a patient’s body, and do not involve a physician’s judgment. See, e.g., Lanier v. Trammel, 207 Ark. 372, 180 S.W.2d 818 (1944)(matters of common knowledge include a surgeon’s failure to sterilize his instruments prior to operating or to remove a sponge before closing an incision). Therefore, we conclude that this case presented an issue outside the jury’s common knowledge that required expert testimony. See, e.g., Robson v. Tinnin, supra, (matters relating to the changing of dental implants and treatment of fractured teeth were not matters of common knowledge). Our position is supported by caselaw in other jurisdictions. See, e.g., Wagner v. Deborah Heart & Lung Center, 588 A.2d 860 (N.J. Super. 1991)(dismissal proper where plaintiff failed to present expert testimony that a cardiothoracic surgeon deviated from the appropriate standard of care where surgeon made a medical decision to leave needle fragment in patient’s sternum rather than interrupt the closure procedure); Cebula v. Benoit, 652 S.W.2d 304 (Mo. App. 1983)(directed verdict proper where plaintiff failed to present required expert testimony that thoracic surgeon who made a medical decision to leave needle fragment in patient’s chest acted inconsistently with general medical practice); Williams v. Dameron, 246 S.E.2d 586 (N.C. App. 1978)(directed verdict proper where plaintiff failed to prove negligence or causation by expert testimony or otherwise where surgeon exercised medical judgment in knowingly leaving a scalpel tip in plaintiff’s back); Johns Hopkins Hospital v. Genda, 258 A.2d 595 (Md. 1969)(jury verdict reversed where plaintiffs failed to present evidence that surgeons deviated from the applicable standard of care where surgeons made medical decision to leave a broken needle tip in body of plaintiffs’ minor child).

We agree with the trial court’s finding that Dr. Schultz’s opinion was general and based on his experience as an infectious disease expert, and did not address a surgical decision by an orthopedist. Dr. Schultz did not offer testimony that the conduct of Drs. Johnson and Nix fell below the standard of care for orthopedic surgeons in Little Rock. To the contrary, Dr. Schultz stated in his deposition that it was a surgical decision whether Dr. Nix should have gone in and tried to remove the piece of tubing. As in Robson v. Tinnin, supra, the appellees met their burden of proving a prima facie case for summary judgment by showing that the Skaggses had no expert to testify as to the breach of the applicable standard of care. The burden shifted to the Skaggses to show that a disputed issue of fact existed, and their failure to do so excused the need for the physicians to show a lack of proof on the element of proximate causation. Id. at 612. Accordingly, we must affirm the trial court’s order of dismissal.

Affirmed.

Brown, J., not participating.


author: Robert H. Dudley, Justice.

text:
    BUILDER’S TRANSPORT, INC., and Robert Lawrence Claussen v. Lincoln WILSON
    95-899
    914 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Arnold, Grobmyer & Haley, by: Jacob Sharp, Jr. and David H. Pennington, for appellant.

      Wright, Chaney, Berry & Daniel. P.A, by: William G. Wright, for appellee.
   Robert H. Dudley, Justice.

Lincoln Wilson was injured when his car was struck by a tractor-trailer owned by Builders Transport, Inc., and driven by Robert Claussen. Wilson filed suit against Builders and Claussen, and the jury returned a verdict of $245,000. Judgment was entered for the amount of the verdict. Builders and Claussen appeal and contend that the award is excessive. We affirm the judgment.

When an award of damages is alleged on appeal to be excessive, the appellate court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the appellate court’s conscience or demonstrate passion or prejudice on the part of the trier of fact. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). In determining whether the amount of damages is so great as to shock the conscience, the appellate court considers such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Wheeler v. Bennett, 312 Ark. 411, 422, 849 S.W.2d 952, 958 (1993). The determination is made on a case-by-case basis as “precedents are of scant value in appeals of this kind.” Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983) (citation omitted); Mustang Elect. Servs. v. Nipper, 272 Ark. 263, 613 S.W.2d 397 (1981). “A jury has much discretion in awarding damages in personal injury cases.” Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990) (citations omitted).

In the case at bar, Wilson suffered injuries to his back and neck, a torn rotator cuff in his left shoulder, and cuts and bruises to his face, head, right shoulder, arms, and legs. In the months following the accident, he was treated for continued and increasing pain and tenderness in his left shoulder by Dr. Mark Jansen, a general practioner. Dr. Jansen subsequently recommended that Wilson go to an orthopedic surgeon for further observation. He did so, and magnetic resonance imaging revealed that his left rotator cuff was torn.

Dr. Scott Bowen, an orthopedic surgeon, performed surgery to repair the torn rotator cuff. Dr. Bowen described the surgery as requiring a three-to-four-inch incision into the front of the shoulder. This procedure splits the muscle to reveal the underlying deeper tissues. Dr. Bowen testified:

[T]he bursal covering is opened and the tendon is then seen. And it is a deep structure, and it was torn and retracted. It required a fair amount of mobilization of the tissues and advancing the tissues down, forming a little bony trough and bringing structures out through the bone, so it’s a fairly extensive procedure.

Dr. Bowen described appellee’s tear as being “quite large” and “a broad, retracted tear.” He testified that “the tissue was actually pulled away” and required “immobilizing or exposing more of this tissue and moving it to advance it out to where it can be repaired.” He testified that following this type of surgery, the arm is placed in a pillow-type splint for approximately three weeks. The patient then undergoes therapy that progresses through three months following surgery.

Dr. Bowen testified that Wilson will have some permanent loss of normal function. He rated the impairment to Wilson’s left arm at eight percent (8%), which translates into a five percent (5%) impairment to the body as a whole. He testified that Wilson might need medication or injections in the future to control pain and problems with his left shoulder. He testified that, on rare occasions, an individual suffers a re-tear and will require a second surgery. Finally, he expressed the opinion, within a reasonable degree of medical certainty, that Wilson’s torn rotator cuff was caused by the collision.

Approximately eight months after the surgery, Wilson returned to Dr. Jansen and stated that he had continued pain in his left shoulder. A clinical test performed at that time indicated that the rotator cuff was torn. Dr. Jansen recommended continued medication, rest, and modification of activities.

Wilson had contracted polio as an infant. Throughout his life, the disabilities resulting from polio had affected the use of both of his feet and his right arm. As a result, he relied heavily on his left arm in going about his daily activities. He used his left arm to get out of chairs and to pull himself up stairways. He testified that his left arm was his life.

Testimony established that Wilson had been self-sufficient before the accident. He lived alone, drove a car, did his own housework, worked in his yard, and enjoyed various other activities, including singing at senior adult dances. He was fifty-seven years old at the time of. the accident.

After the accident, Wilson suffered increasing pain and inability to use his left arm, the arm on which he relied. Following the surgery to repair the torn rotator cuff, he remained in the hospital for three days. While in the hospital, he was unable to take care of his personal needs such as bathing and eating. His sister and nurses bathed and fed him. Upon returning home, he was unable to take care of his bodily functions, such as cleaning himself after bowel movements, and was concerned about the way he smelled. For six weeks following the surgery, Wilson had to ask people to run errands for him, and a home-health service bathed him, took his temperature and blood pressure, and changed his bandages.

Wilson’s neck and back continue to hurt. He has painful “shoulder pops” on a daily basis. He now has difficulty getting out of chairs and climbing stairs. He has difficulty eating.

Before the accident, Wilson used hand tools and worked around his home. He cleaned his house. He is no longer able to do these things. He hired an individual to do his outdoor housework at a cost of $115. He pays thirty dollars a month to have his house cleaned.

He now has a fear of driving. He does not participate in activities as he did before the accident. He is afraid he will be required to go into a nursing home at an early age as a result of the injury to his left arm. He continues to suffer pain in his neck, shoulder, and back, and is unable to properly use his left arm.

There was evidence that Wilson will need future medication and injections and possibly physical therapy. In addition, Wilson presented evidence that his rotator cuff was not intact eight months after the repair surgery. He did not establish a sum certain for future costs. However, “[f]uture medical expenses do not require the same degree of certainty as past medical expenses.” Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983). Wilson presented evidence of his past medical expenses, including a medical expense summary, and “[i]t is not speculative or conjectural to calculate future medical expenses where there is a history of medical expenses that have accrued as of the date of trial, particularly where there is also a degree of medical certainty as to the need for future medication.” Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 392, 784 S.W.2d 755, 757-758 (1990). Future medical expenses were an appropriate element of damages for consideration.

Wilson presented proof of permanency of his injury through his own testimony and that of his physicians. He testified as to his ongoing pain and disability. His physicians testified as to the likelihood that he will have some pain and discomfort in the future and some need for exercises, modification of activities, pain medications, and injections. Dr. Bowen testified that he rated Wilson as having an 8% impairment rating to his left upper extremity, which translates into a 5% impairment rating to the body as a whole.

Wilson presented ample proof of pain and suffering, through his own testimony and that of his doctors and friends and relatives. He suffers constant pain in his neck and back and is unable to raise his arm above his head without pain or discomfort.

He also presented ample proof of mental anguish as a result of the injuries he suffered in the collision. Prior to the accident, he was able to take care of himself and enjoy social activities. Now he is unable to take care of himself and worries about his personal hygiene. He no longer enjoys social activities as he did prior to the accident. He is unable to eat normally and is embarrassed by spilling food on himself. He is not able to keep his house as he did before the accident. He is concerned about the cost of hiring people to do the jobs around his house. He is afraid of entering a nursing home at an early age because he is no longer able to care for himself as a result of the injury to his left arm. The Arkansas mortality table introduced at trial showed him to have a life expectancy of 23.49 years.

The proof in this case supported the conclusion that, not only did Wilson suffer a permanent injury which causes him pain, discomfort, and inability to use his left arm properly, but it also drastically changed his life. The verdict of $245,000 is not so great as to shock the conscience of the court or to demonstrate passion or prejudice on the part of the jury. Consequently, we affirm the judgment.


author: Robert H. Dudley, Justice. Bradley D. Jesson, Chief Justice,

text:
    CITY of LOWELL, et al. v. M & N MOBILE HOME PARK, INC.
    95-521
    916 S.W.2d 95
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996
    [Petition for Rehearing denied March 11, 1996.]

      Pawlik & Associates, by: Kevin J. Pawlik and Ella Maxwell Long, for appellants.

      Matthews, Campbell & Rhoads, P.A., by: David R. Matthews, for appellee.

       Jesson, C.J., and Glaze and Corbin, JJ., would grant.

   Robert H. Dudley, Justice.

This is a zoning case. Appellee M & N Mobile Home Park, Inc., purchased 7.19 acres of land in Lowell in 1971. Between 1971 and 1986, it operated a mobile-home park on slightly less than two of the acres. The other five acres remained unoccupied. In 1986, the city passed a zoning ordinance that designated the two acres as MHP, zoned for a mobile-home park, and designated the remaining five acres as R-l, for single-family dwellings. In 1994, appellee petitioned the planning commission to rezone the five acres to MHP so that it could utilize the full seven acres as a mobile-home park. The planning commission denied the application. Appellee appealed to the city council. The council upheld the commission. Appellee filed suit and asked the chancery court to rezone the five-acre tract to MHP because the action of the city council was arbitrary. The trial court granted the relief and rezoned the five acres as MHP. We reverse and dismiss.

I.

A. Constitutional Provisions

The powers of government are divided into three separate branches of government. Ark. Const, art. 4, § 1. The legislative power of state government is vested in the General Assembly with the right of the initiative and referendum reserved to the people. Ark. Const. amend. 7, § 1. The General Assembly can delegate the legislative power to enact ordinances to municipal corporations. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904). We have written that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly, and consequently, an act of a municipality is the co-equal of an act of the General Assembly. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). The General Assembly has given to municipal corporations the power to enact zoning ordinances. Ark. Code Ann. 14-56-402 —14-56-425 (1987). A municipal corporation’s exercise of its zoning power is the co-equal of an act by the General Assembly.

The legislative power includes discretion to determine the interests of the public as well as the means necessary to protect those interests. Within constitutional limits, the legislative branch is the sole judge of the laws that should be enacted for the protection and welfare of the people and when and how the police power of the State is to be exercised. Missouri & North Arkansas R.R. Co. v. State, 92 Ark. 1, 121 S.W. 930 (1909).

One branch of government shall not “exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. For each branch to operate as constitutionally envisioned, one branch must not be subordinated to either or both of the other branches, and one branch must not take control of one or both of the other branches. The legislative branch has discretion to determine the interests of the public, but the judicial branch has the power to set aside legislation that is arbitrary, capricious, or unreasonable. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). This is a limited power, and the judiciary, in acting under this limited power, cannot take away the discretion that is constitutionally vested in a city’s legislative body. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1971). The chancery court has subject-matter jurisdiction to determine whether a zoning enactment is arbitrary, capricious, or unreasonable. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994); City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971).

This court’s foundation case involving zoning and the separation-of-powers doctrine is Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). There we wrote:

[The city council’s] action is final unless we can say that the council abused its discretion. But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action.
The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears.

Id. at 256, 275 S.W.2d at 325 (citations omitted). In recent years, we have frequently written that the judicial branch does not have the authority to review zoning legislation de novo, as that would constitute an unconstitutional taking of the power of the legislative branch. See, e.g., Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983); City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979).

B. The Pfeifer case

There was an aberration in our case law, which is set out only to show that it existed and that it has ended. Shortly after we correctly decided the foundation case of Herring v. Stannus, we decided City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), and in essence, held that the review of zoning appeals could be by trial de novo rather than by solely determining whether the enactment by the legislative branch was arbitrary. The effect was to judge the wisdom of the enactment in violation of the separation-of-powers doctrine. We began to retreat from the Pfeifer doctrine in the 1953 case of Evans v. City of Little Rock, 221 Ark. 252, 253 S.W.2d 347 (1953), and backed further away from it in the 1966 cases of Downs v. City of Little Rock, 240 Ark. 623, 401 S.W.2d 210 (1966) and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966). The Pfeifer doctrine led to criticism. Morton Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969); Morton Gitelman, Zoning The Expanding Business District Doctrine in Arkansas: An Obstacle to Land Use Planning, 28 Ark. L. Rev. 262 (1975). In Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W.2d 912 (1975), we re-examined the Pfeifer doctrine and almost laid it to rest. See Robert R. Wright, Zoning Law in Arkansas, 3 UALR L.J. 421, 477 (1980). Finally, in City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981), we noted the many cases that “restricted, limited and modified the holding in Pfeifer,” and said the case now has “little if any validity.” Id. at 447-48, 619 S.W.2d at 669-70. In summary, we have returned to the foundational doctrine of Herring v. Stannus, which provides that the judicial department can set aside a legislative enactment only when the legislative branch has abused its discretion in an enactment because of arbitrariness.

C. Standard of Review

1. Presumption of Validity

In reviewing cases involving legislative enactments, such as zoning ordinances, there is a presumption that the legislative branch acted in a reasonable manner, and the burden is on the moving party to prove that the enactment was arbitrary. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), we quoted with approval from Little Rock Railway & Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911), as follows:

It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power.

Id. at 227, 142 S.W. at 166. This presumption is a presumption of law and not merely an inference of fact. See Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).

2. Rational Basis

The chancery court has a limited function in reviewing legislation. It acts not as an ordinary court of equity, but instead acts only to determine whether the legislative action was arbitrary, capricious, and unreasonable. City of Batesville v. Grace, 259 Ark. 493, 594 S.W.2d 224 (1976). We recently defined “arbitrary” and “capricious” in City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994), as follows: Arbitrary is “decisive but unreasoned action,” and capricious is “not guided by steady judgment or purpose.” The definition most easy to apply was given in City of Little Rock v. Breeding, 273 Ark. 437, 445, 619 S.W.2d 664, 668 (1981), when we said that the enactment was not arbitrary if there was any reasonable basis for its enactment.

3. The Bentley case

In appellate review of ordinary equity cases there are two different components of the chancellor’s ruling that are considered. The appellate court will not set aside a chancellor’s finding of fact unless it is clearly erroneous. This deference is granted because of the regard the appellate court has for the chancellor’s opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52. However, a chancellor’s conclusion of law is not entitled to the same deference. If a chancellor erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Manifestly, a chancellor does not have a better opportunity to apply the law than does the appellate court. In an early zoning case, which was actually determined on appeal by a chancellor’s finding of fact, we wrote that the “findings of fact made by the court are abundantly supported by the testimony,” and as a result, we affirmed the ruling by the chancellor. City of Little Rock v. Bentley, 204 Ark. 727, 731, 165 S.W.2d 890, 892 (1942). Unfortunately, through seemingly rote citation, the Bentley statement became the Bentley dogma. As an illustration, in Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W.2d 706 (1966), we wrote:

In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W.2d 116 (1962).

Id. at 156, 406 S.W.2d at 706. The Bentley doctrine was criticized in a 1969 Law Review Article, Morton Gitelman, fudicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969), which, in part, states that under Bentley, the appellate court “does not even mention whether the decisions of both the planning commission and city council are supported by evidence.” Id. at 34.

In 1981, in the case of City of Little Rock v. Breeding, we returned to affirming only the chancellor’s findings of fact under Ark. R. Civ. P. 52, and held that a trial court could not substitute its judgment for that of the legislative branch. Thus, we have retreated from the Bentley dogma, even though we have never expressly overruled it.

4. Correct Standard

In summary, the party alleging that legislation is arbitrary has the burden of proving that there is no rational basis for the legislative act, and regardless of the evidence introduced by the moving party, the legislation is presumed to be valid and is to be upheld if the judicial branch finds a rational basis for it. It is not for the judicial branch to decide from evidence introduced by the moving party whether the legislative branch acted wisely.

II. The Trial Court Proceeding

Appellee offered considerable testimony in the chancery court to show the reasonableness of its request to rezone the five-acre tract. The chancellor apparently was moved by the testimony. The result was that the chancellor’s ruling focused on appellee’s one tract of land, and, consequently, lost sight of the concept that zoning is by districts and not by individual parcels of land. It is not constitutionally appropriate for a court to determine the substantive merits of the city’s refusal to rezone. The fundamental concept of zoning legislation is sound city planning. By focusing on appellee’s one tract, the chancery court unintentionally omitted consideration of the statutory design that allows municipalities to prepare plans, make studies on future development, prepare ordinances, make comprehensive studies, make planning-area maps, design streets, and make various other plans “for the coordinated, adjusted, and harmonious development of the municipality and its environs.” Ark. Code Ann. § 14-56-402 (1987). The sole issue before the chancery court should have been whether there was a rational basis for the city’s refusal to rezone the five acres. After appellee filed its complaint, the city moved to dismiss the complaint on the ground that the “property sought to be rezoned by M & N [appellee] does not qualify under the requested MHP zone because it lacks the necessary frontage on a public street.” At trial, witness LeRoy Barker testified that the five acres “has no frontage on any public street.” Witness Patsie Christie testified that “[t]here is about a one hundred and fifty (150) foot access along the street into the mobile home park, there is no other access to the property which M & N has sought to rezone other than through the other property owned by M & N where the mobile home park currently sits.” Other proof showed that appellees proposed placing seventy mobile homes on the five acres. The zoning ordinance sets out minimum area requirements for both mobile-home parks and individual-dwelling units, as follows:

d. Minimum Area Requirements
1. Land area 43,560 sq. feet (1 acre)
2. Land area per dwelling unit 4,355 sq. feet
3. Front yard setback 25 feet
4. Rear yard setback 25 feet
5. Side yard setback 7 feet (except)
6. Side yard setback from public street 25 feet
7. Frontage on public street 100 feet

The five-acre tract has no street frontage; thus, by itself, it does not qualify for rezoning under the terms of the zoning ordinance. This fact can serve as a rational basis for the refusal to rezone the five acres. M & N might argue that when the five acres is coupled with the two acres, there is sufficient street frontage. One response is that the ordinance does not provide for coupling, but more important, this fact shows that the refusal was fairly debatable, and if it was fairly debatable, it was not “unreasoned” or arbitrary. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).

The planning commission heard considerable testimony from neighbors who opposed the rezoning. The chancellor completely rejected this evidence because “the property appears to be capable of use for the purpose requested and it is in a proper area which is consistent with the City’s plans.” The chancellor’s ruling was as follows:

Mr. Hutchins opposed the rezoning because he lives within three hundred (300) feet of the property and feared that it would decrease the value of the property, be a noise problem and increase the need for police protection and have an impact on the schools. Flossie Clardy expressed that she did not want the mobile homes. Jack Clardy had stated to the Planning Commission that his family owned rental property and started the first mobile home park in the city and that he felt that seventy-five (75) mobile homes on seven (7) acres is too high a density and would impact the police department and schools; and that, he would like to have an ordinance to stop mobile homes in Lowell. Brandi Julian stated to the Planning Commission that the rezoning would decrease the value of their property and increase traffic. Dee Lawson stated that it would depreciate her property and that she did not want the mobile home park opened up. Cathryn Anderson opposed the mobile home agreeing with other statements that had been made. Alta Looby expressed that she wanted no mobile homes. Tom Looby stated that he agreed that he wanted no mobile homes, that the extra traffic problems with seventy (70) mobile homes on an acre would be like a high-rise apartment. James Clardy said he did not favor. Randy Anderson agreed with the comments made by others; and that living in the area, he felt that the mobile home park would be an eye sore. Crystal Christo stated to the Planning Commission that she felt the City should reconsider its current stand on mobile homes, that no more mobile homes should be allowed in Lowell and the existing ones should not be replaced, and that she would like to see an eight (8) foot privacy fence. Carol Wilson stated that she agreed with the statements made, that it would devalue the property and that there should be no more mobile home parks. Robin McDonald expressed that there would be a problem with depreciating property values. Bret Wright stated that he agreed, there should be no additional expansions of mobile home parks. Herbert Johnson owned a duplex on the west side of the mobile home park, but did not live in Lowell, and felt that there should be a buffer zone between the mobile home park and the R1 district. Kendall Morgan, who lives at 314 McClure, had built a privacy fence in cooperation with Mr. Nordsell and stated that the mobile homes depreciate in value and cause all adjacent property to depreciate. Morgan further stated that he found Nordsell to be an honest man, but that he opposed the mobile home park expansion. Merl Atha, whose property adjoins the property on the west, opposed the rezoning also. There were comments by Planning Commissioners McMurray and Hare that have been stated in the testimony about problems with mobile home parks. Based on my review of these comments, there is nothing here for the Planning Commission to base their rejection for the rezoning for, even if they took everything stated to them by those individuals as fact. The property appears to be capable of use for the purpose requested and it is in a proper area, which is consistent with the City’s plans.

The ruling rejecting the evidence was in error. The opinion of local residents, when it reflects logical and reasonable concerns, is an appropriate factor for a planning commission or a city council to consider in zoning cases, and can help form a rational basis for a city’s legislative decisionmaking. Nelson v. City of Selma, 881 F.2d 836 (9th Cir. 1989); Burns v. City of Des Peres, 534 F.2d 103 (8th Cir. 1976); Prince v. County Comm’rs of Franklin County, 769 S.W.2d 833 (Mo. App. 1989); Mira Dev. Corp. v. City of San Diego, 252 Cal. Rptr. 824 (Cal. App. 1988); Ensign Bickford Realty Corp. v. City Council, 137 Cal. Rptr. 304 (Cal. App. 1977); Metee v. County Comm’rs of Howard County, 129 A.2d 136 (Md. App. 1957); and 83 Am. Juf. 2d, Zoning and Planning § 1065. We find no cases to the contrary. However, the mere fact of public opposition to a zoning application will not supply a rational basis for denial of an application. The public opposition must reflect logical and reasonable concerns. If the rule were otherwise, public opinion by itself could justify the denial of constitutional rights and those rights would thus be meaningless. Ross v. City of Yorba Linda, 2 Cal. Rptr. 2d 638 (Cal. App. 1991).

In the case before us, the public opposition to the zoning application reflected logical and reasonable concerns. The public expressed opposition because of increased traffic on limited roads. This concern is reasonable because the only way M & N could comply with the street frontage requirement was by coupling the five acres with the two acres and by using the street frontage located on the two acres for the entire seven acres. The public opposition that was based on noise was reasonable since there would a greater concentration of considerably more mobile homes. The public opposition that was based on a probable decrease of the value of surrounding lands is reasonable and logical. Five nearby landowners testified that the value of their land would decrease if the tract were rezoned. It is well settled that the owner of property, because of his relationship as owner, is competent to give opinion testimony on an issue of the value of his property regardless of his knowledge of property values and it is not necessary to show that the owner is an expert or is acquainted with the market value of local real estate. Such testimony should be stricken only if it has no reasonable basis. Arkansas State Hwy. Comm’n v. Maus, 245 Ark. 357, 432 S.W.2d 478 (1968). Thus, their testimony was competent and the Planning Commission could consider it. In addition, one member of the Planning Commission stated that he moved from a residence solely because it was located next to a mobile-home park, and another commissioner stated that he lived next to a mobile-home park for two and one-half years, and the only disturbances in the neighborhood came from the mobile-home park. In summary, the concerns expressed by the public to the Planning Commission were logical and reasonable, constituted a legitimate factor in the legislative decisionmaking and should not have been disregarded by a court.

This basis, public opposition, was not developed in the trial court, but these cases are not reviewed as ordinary equity cases. They are reviewed only to determine whether the legislative body had a reasonable basis for the enactment. City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976).

In summary, M & N did not meet its burden of proof by showing that there was no rational basis for the city council’s refusal to rezone. Consequently, we hold that the legislative branch acted within its discretion in refusing to rezone the tract, and the chancellor violated the constitutional separation of powers by taking discretion from the legislative branch and placing it in the judicial branch.

Reversed and dismissed.

Jesson, C.J., and Glaze and Corbin, JJ, dissent.

Bradley D. Jesson, Chief Justice,

dissenting. I am mindful of the deference to be accorded the legislative decisions of municipalities. I agree with every word the majority says about separation of powers. However, the judiciary should not be completely hamstrung in its review of a city’s action. Judicial review exists to protect landowners such as the appellee from unreasoned decisions. This is a case in which the chancellor carefully and thoughtfully exercised his power of review, accorded the city its due deference, and reached a reasonable, supportable conclusion. I would affirm his decision.

Supposedly, the city had two rational bases for its refusal to rezone the subject property: the lack of street frontage and the concerns expressed by citizens who lived near the proposed mobile home park district.

Regarding the frontage requirement, the city’s zoning ordinance requires that a mobile home park district have one hundred feet of frontage on a public street. If the appellee’s five acres were rezoned to the MHP classification, the result would be a 7.19 acre mobile home park district since what M & N seeks to do here is simply extend its existing mobile home park to include the contiguous, otherwise land-locked parcel owned by it. According to Patsie Christie, the city’s Deputy Recorder, who also has a background of education and experience in public administration and city planning, there is a one hundred and fifty foot access along the street into the currently existing park. Therefore, the requirement would be met as it pertains to the overall mobile home park district. As the majority states, zoning is by district.

The problem with the majority’s argument on the frontage requirement can be seen by the following example. Suppose M & N wished to use the property as single-family or multi-family residential. The city’s zoning ordinance requires two hundred feet of frontage for single-family and one hundred feet of frontage for multi-family districts respectively. The parcel of land which is the subject of this case can meet neither of those requirements because it has no street frontage except through the existing mobile home park. For what residential purpose can M & N use its property? It should be remembered that the city’s own zoning plan created this land-locked parcel. The only way the parcel can comply with the zoning ordinance is to combine it with the existing mobile home park district.

There are a number of facts which do not appear in the majority opinion. I will set them out here because I believe they constitute overwhelming evidence in support of the chancellor’s finding. The five or so acres which are the subject of this case sit landlocked in an area just off McClure Avenue in Lowell. The property is contiguous to the appellee’s remaining acreage which is in use as a mobile home park and is properly zoned as MHP. The existing mobile home park fronts McClure Avenue and juts, penninsula-like, into the five acre tract. The 7.19 acres as a whole is surrounded by a variety of uses. To the southwest are duplexes. To the west and northwest are homes on lots with large open areas. To the north is a residential housing addition containing two lots with mobile homes. To the east is an open area and a stand of trees used as part of a pine tree nursery. To the southeast are single family dwellings. Directly across the street is a parcel of land which is not suitable for development. Across the street and further east is a church.

When the appellee petitioned the Planning Commission to rezone the remainder of his parcel to MHP, the matter was taken upsat the Commission’s February 7, 1994, meeting. The minutes of the meeting reflect that eighteen citizens spoke in opposition to the rezoning. Their objections ranged from simply not wanting mobile homes or considering them an “eyesore” to fear of decrease in property values, increase in noise, traffic and crime, and the concern that there would be too many mobile homes placed on the 7.19 acres. After the citizens’ objections were heard, one commissioner commented that he had once lived next to a mobile home park and it was the primary reason he had moved. Another commissioner said he had once lived next to a mobile home park and the only disturbances he experienced were from the park. Without further reason or comment, the appellee’s petition was denied.

The appellee fared no better at the City Council, to which he appealed the Commission’s decision. His petition was denied without reason or comment.

The appellee then filed suit in chancery court alleging that the city’s denial was arbitrary, capricious and unreasonable. At trial, strong evidence was presented that the city had no reasonable basis whatsoever for its action. In fact, the evidence was striking. The appellee put three city officials on the stand. Not one city official could testify as to why the appellee’s application had been denied. In fact, the city’s mayor, Glen Rogers, who presided over the city council meeting on the date that the appellee’s application was considered, testified as follows:

Q.: Why was the rezoning request of M and N Mobile Home Park rejected?
A.: Because the council turned it down.
Q.: Why did the council turn it down?
A.: I have no idea.
Q.: Was any reason given?
A.: There’s no one give [sic] me any reason.

The mayor further testified that the rezoning request was consistent with the city’s land use plan and that the requirements of the zoning ordinance were met. Finally, he testified:

Q.: Other than the fact that the Planning —, City Council just said no, can you think of any reason why the rezoning application of Mr. Nordsell was denied?
A.: I can’t think of anything else.

There was also undisputed testimony that the appellee’s proposed use of the land was consistent with the city’s overall land use plan. The majority’s implication otherwise is simply erroneous. The plan divided the city into broad-category zones such as residential, commercial or industrial. Patsie Christie testified that a mobile home park district falls within the residential category and therefore is consistent with the land use plan. The mayor likewise testified that M & N’s proposed rezoning was consistent with the land use plan in effect in Lowell since 1971. Finally, there was testimony that the minimum requirements of the zoning ordinance had been met, and that citizen opposition had not been used, in the past, as a basis for the Commission to deny a rezoning application. The city offered no testimonial evidence at the hearing before the chancellor.

In the face of the evidence before him, the chancellor looked in vain for a rational basis for the city’s action. He found none and, in light of the city officials’ testimony and the personal comments made by the Commissioners, concluded that the city’s action was arbitrary.

It is difficult to envision a stronger case for a finding of arbitrariness than this one. We have defined the term “arbitrary” as decisive but unreasoned action, City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994), and as an act arising from unrestrained exercise of will, caprice or personal preference, based on random or convenient choice rather than on reason or nature. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983). The absence of reason is common to both definitions. True, the city is not required by law to set forth the reasons for its actions. But the presumption of reasonableness does not extend to infinity. Here we have not only a lack of any stated reason, but affirmative statements by city officials that they knew of no basis for the city’s action.

By focusing on the comments made by the citizens at the Planning Commission meeting, I fear we have given credence to the idea that neighborhood objections, no matter how lacking in factual support, may serve as a basis for a city’s zoning decisions. I disagree with the characterization of the citizens’ and Commissioners’ comments as “evidence.” As the majority correctly points out, neighborhood objections, standing alone, should not be considered as a basis for a zoning decision. However, that is exactly what is happening here. In truth, there is no objective reason for the city’s action, as shown by the testimony of the city officials at the trial. One Arkansas commentator has characterized the use of neighborhood protest (or lack thereof) to provide a basis for a city’s action as “an aberrant and unwholesome rationale” and “a distortion of the modern philosophy of zoning.” M. Gitelman The Role of the Neighbors in Zoning Cases, 28 Ark. L. Rev. 221 (1974). In the majority opinion, we have sanctioned the use of unproven fears, stereotypes and prejudices as providing a rational basis for zoning decisions. If a city is permitted to bootstrap neighborhood objections into a rational basis for the denial of a mobile home park, it can happen just as easily with apartments, duplexes, and low-cost housing. The same citizen objections voiced here, such as increased traffic, noise, and increased need for additional police could be argued equally in the case of those uses. This is a door we should not open.

This brings me to the final point in this dissent. The majority implies that we should give no deference to the chancellor’s finding in this case. I strongly disagree. The chancellor was presented with testimonial and documentary evidence. From that evidence, he found that the city’s action was arbitrary. He applied the proper burden of proof and standard of review. We should uphold his finding unless it is clearly against the preponderance of the evidence. In City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981) and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966) we recognized that the sole question before this court in a rezoning case is whether the preponderance of the evidence before the chancellor showed that the city acted arbitrarily. Applying that standard, I believe the chancellor’s finding was well supported by a preponderance of the evidence.

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


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

text:
    Everette Lee FRAZIER v. STATE of Arkansas
    CR 94-995
    915 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Linda Scribner, Benton County Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Everette Lee Frazier was charged with the capital murder of his estranged wife, Wynona, and attempted capital murder of Bobby Jones. Wynona and Jones were in Wynona’s house sitting at the kitchen table in the early hours of October 18, 1992, when they heard a noise outside. While it was disputed at trial how Everette entered the house through a window, it is clear he and Jones scuffled, and during the following course of events, Wynona was shot to death, and Jones was shot in the arm and neck. Everette was convicted of capital murder and attempted first-degree murder and given respective consecutive sentences of life imprisonment without parole and thirty years imprisonment. Everette’s points for reversal are that the trial judge erred (1) in admitting into evidence transcribed, pretrial statements Jones had given defense counsel and (2) in failing to grant Everette’s motion for mistrial wherein he claimed the prosecutor’s cross-examination of him at trial violated his due process right by drawing attention to Everette’s silence at the time of his arrest. We find no merit in these arguments.

Everette’s first argument turns on Jones’s statements given to officers when they investigated the shootings and his taped statements given to defense counsel several weeks before trial. At trial, the state called Jones as its witness, and Jones described that, on the morning of October 18, 1992, Everette broke a window with a two-by-four board, and bearing a pistol, he climbed through the window into the house, shot Jones twice, and after shoving Wynona into a chair, shot her in the face, killing her. Jones said that Everette came towards him again, and Jones kicked him in the head, after which Everette left the premises, got in his car and drove away.

Upon cross-examination, defense counsel attempted to attack Jones’s credibility in numerous ways. First, defense counsel asked questions of Jones in an effort to show Jones had an ongoing affair with Wynona dating at least back to 1991 when Everette and Wynona were initially estranged and Everette had filed for divorce. Counsel further questioned Jones, suggesting that Jones had increased the amount of time he spent with Wynona in 1992 when Everette and Wynona were again estranged, but not divorced. Jones denied having any affair with Wynona and claimed he would not do so until she was divorced. He did admit that he went by her house once or twice during a week after he got off work at 4:00 a.m., but only went in when a light was on.

In continuing cross-examination, defense counsel utilized prior statements Jones had given to detectives and asked Jones to explain their inconsistencies with Jones’s trial testimony. For example, counsel showed Jones gave earlier statements to detectives, reflecting that Jones was not sure what Everette used to break out the window, that he could not see anything when Everette gained access into the house and went over to Wynona, and that he could not remember if he told detectives that Everette pointed a gun.

In Everette’s case-in-chief, counsel called Jones as a witness, and questioned him in an effort to show Jones was having an affair with Wynona and to show Jones’s account of what occurred on October 18, 1992 was conflicting and unclear. Counsel further questioned Jones’s earlier testimony as the state’s witness by again pointing out purported inconsistencies indicating Jones was uncertain as to how Everette gained entrance through the window, what kind and size of gun Everette possessed, how Wynona got in the chair in which she was shot, and whether he was sure Wynona was shot while sitting in the chair. Counsel attempted to question other details, but his foregoing questions are sufficient to show he thoroughly took issue with Jones’s trial testimony by utilizing and seizing upon any inconsistency and failure in recollection that surfaced in Jones’s story.

At the end of defense counsel’s examination of Jones, the state proceeded in its questioning of him in an attempt to rehabilitate him. After briskly examining Jones over many of the points defense counsel covered on direct, the state offered to introduce the taped and transcribed statement that Jones had given defense counsel several weeks prior to trial. Defense counsel’s objection to Jones’s statement, the state’s response and court’s ruling were as follows:

Defense counsel: Your Honor this is the State’s way of getting around hearsay. This is not a sworn statement. It is used solely for impeachment purposes, and they are not to be considered as evidence.
Court: And I can do that, give that instruction if you wish.
Defense counsel: Your Honor, I object to the introduction of this.
State: The State would say that this is not hearsay, A.R.E. 801 (d)(l)(ii). This is a statement that is consistent with his testimony.
Court: It seems like the issue is when they cross-examine someone over prior inconsistent statement, its got to be afforded to opposing counsel. State is introducing it as a prior statement of the Defendant, and they are entitled to. It may be admitted.

The trial court ruled correctly. It is settled law that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980); see also Ark. R. Evid. 801 (d)(1)(h). That is the situation here. Defense counsel made every attempt to show Jones’s trial testimony was inconsistent with his earlier statements and fairness dictated that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury’s mind from defense counsel’s examination. Cooper, 317 Ark. at 489, 879 S.W.2d at 407.

Everette argues on appeal that the court erred by allowing the state to introduce the prior statement because unsworn out-of-court statements in criminal cases are excluded as substantive evidence. This argument is misplaced, as the statement introduced was not hearsay under Ark. R. Evid. 801(d)(1)(ii), and was not offered to prove the truth of the matter asserted, but to rebut an express or implied charge of recent fabrication. Although the prior statement could not have been introduced to prove the truth of the matter asserted, when evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Ark. R. Evid. 105. Because the statement was admitted for a proper purpose, and the court offered to give a limiting instruction, Everette may not now complain that the statement was used by the state substantively when Everette neither asked the court for a limiting instruction nor accepted the court’s offer to give one. See Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); see also Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (1986).

Before leaving this point, we note that Everette’s argument on appeal complains that, besides Jones’s prior consistent statements, his entire statement given to defense counsel contained other inadmissible remarks which should have been excluded. However, even if this was true, Everette never raised this issue at trial, nor did he point out to the trial judge those purported offensive portions he now argues on appeal. Without making such a request below, Everette cannot argue on appeal that the judge erred by failing to separate inadmissible portions of the transcribed statement from the admissible portions. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).

Everette Frazier’s second point asserts the trial court erred in not declaring a mistrial when the state cross-examined him at trial about his having invoked his right to remain silent when questioned by Detective Donald R. Batchelder the day of his wife’s shooting. The prosecutor’s examination of Everette follows:

Prosecuting attorney: You recall talking to Detective Batchelder back on October 18th, don’t you?
Frazier: Yes, sir.
Prosecuting attorney: And you heard his testimony about your conversation, didn’t you?
Frazier: Yes, sir.
Prosecuting attorney: And he asked you if you had been over to the residence that night, didn’t he?
Frazier: I believe so.
Prosecuting attorney: And you denied it twice; did you not?
Frazier: Yep.
Prosecuting attorney: And that was a lie, wasn’t it?
Frazier: I merely told him I hadn’t been there.
Prosecuting attorney: And that was a lie, wasn’t it?
Frazier: Whenever I was there, the shooting went on, I didn’t know nobody was shot. If I had known just one of them had been shot, I would have got them medical attention right then. If I would have had to have, I would have took them to the hospital myself.
Prosecuting attorney: Mr. Frazier —
Frazier: I didn’t — I told him I hadn’t —
Prosecuting attorney: — do you deny —
Frazier: — been there because I didn’t want to talk about it. I couldn’t talk about it.
Prosecuting attorney: It was a lie, wasn’t it?
Frazier: I answered your question.
Prosecuting attorney: Mr. Frazier, it was a lie, wasn’t it?
Frazier: I said — I said that it was.
Prosecuting attorney: Did Detective Batchelder give you every opportunity to tell your side of the story?
Frazier: Not actually. He just sat down and started asking my questions.
Prosecuting attorney: Did he give you every opportunity?
Frazier: I don’t know what you mean by every opportunity.
Prosecuting attorney: Did he cut you off?
Frazier: After I told him I wanted to see my lawyer.

Following the above colloquy, defense counsel moved for a mistrial, arguing the prosecutor’s questioning violated the principle in Doyle v. Ohio, 426 U.S. 610 (1976), where the Court held that the use for impeachment purposes of a person’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

The short answer to Everette Frazier’s argument is that while Doyle bars the use against a criminal defendant of silence mentioned after receipt of governmental assurances, Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Anderson v. Charles, 447 U.S. 404 (1980). Questions which are not designed to draw meaning from silence, but are meant to elicit an explanation for a prior inconsistent statement are not contrary to the law in Doyle. Id. at 409. Here, the prosecutor’s question, “Did he [Detective Batchelder] cut you off?”, was asked for the purpose of helping Everette understand the prosecutor’s earlier question concerning whether the detective had given Everette every opportunity to explain his side of the story. Accordingly, we uphold the trial court’s denial of Everette’s mistrial motion.

The record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for errors prejudicial to Frazier that would warrant a reversal. No such errors have been found.

Affirmed.

Dudley J., dissents.

Robert H. Dudley, Justice,

dissenting. The majority opinion may well necessitate a change in the way attorneys prepare for trial in both civil and criminal cases. In order to make the holding of the majority opinion and this dissent as clear as possible, this dissent is divided into parts.

I. FACTS

A.

On October 18, 1992, the Bentonville Police Department received a call reporting that a woman had been shot. Police were dispatched to the scene where they found Bobby Jones and the corpse of Wynona Frazier. Jones told the police that he was in Wynona Frazier’s home when he heard defendant, who was Wynona Frazier’s estranged husband, break through a window. He said defendant, after breaking in, shot him twice, and then shot and killed Wynona Frazier, and fled in his vehicle. Defendant was subsequently charged with the attempted capital murder of Bobby Jones and the capital murder of Wynona Frazier. The charges were joined.

B.

Over two years later, on January 7, 1994, in preparation for the trial, defendant’s attorneys interviewed Bobby Jones, who was the only eyewitness to the crimes. As would be expected, they asked numerous questions trying to learn all they could about the State’s primary witness. Their recorded interview was solely for their own benefit. It was not given under oath. They began the interview by asking Jones where he was born, where he grew up, where he lived, how he met the defendant, whether he was married, whether he was divorced, what caused his divorce, whether he had children, whether he had an affair with Wynona, what he knew about the married life of defendant and Wynona, why Wynona filed for divorce against defendant, whether defendant paid child support to Wynona, how defendant treated Wynona, and how the crimes took place.

Since the interview was solely for defense counsel’s benefit, they likely did not consider the possibility that a trial court might order a full transcription of the interview admitted into evidence; therefore, they asked questions they would not otherwise have asked, such as whether defendant paid child support while separated from Wynona, whether Wynona was afraid of the defendant, and whether she was afraid he was going to kill her. One answer even revealéd that defendant had refused to attend his grandchild’s birthday party. The interview was extensive. It contained fifty-three pages when transcribed in the lawyer’s office.

In one answer Jones told defense counsel that defendant had asked him if he and Wynona were having an affair. In another he said that, on the night of the shooting, he arrived at Wynona’s house around 9:00 or 10:00. In yet another answer he said that the defendant broke the window with “some kind of board,” but he wasn’t sure what kind.

C.

At trial, in the State’s case-in-chief, Jones testified that the defendant told him in October of 1992 that Wynona had said he was making “obscene eyes” at her. He said that he arrived at the house around 9:30 or 10:00 on the night of the shooting. He said that he heard a noise and then “seen a two-by-four knocking out the window.”

On cross-examination, defendant’s attorney asked Jones if he told the prosecutor that he had made sexual advances toward Wynona and whether he told one policeman that he arrived at Wynona’s house at 6:00 or 6:30, and told another that he got there at 8:00 or 9:00. He was asked whether he told one policeman that appellant broke the window with a “wooden stick” and told another that he did not know what type of object was used to break the window.

In the defendant’s case, defense counsel began direct examination by asking Jones if he remembered the January 7 interview with the defense attorneys. Then Jones was asked if he knew that defendant had accused Wynona and him of having an affair in 1992. He said that he did not remember such an incident. He subsequently testified that, in the two weeks before the alleged crimes, he had not been to Wynona’s house very often. He was then asked whether he had told the police that he had stopped at Wynona’s every day at 4:00 a.m. after he got off work, and that he had done that every day for the two weeks before the crimes. Again, he said that he did not remember. When asked about the murder weapon, he said that he did not know how large the gun was or what it looked like, and defense counsel then asked if he remembered telling police that the gun was “little bitty” and that it had a brown handle and a blackish-brown barrel. The examination brought out inconsistencies regarding where Jones had said Wynona was before the shooting, and revealed that he told police he was not really clear on a lot of the details.

On cross-examination, the prosecutor asked Jones if he had told the truth in the January 7, 1994, statement taken by the defense attorneys, and if he had said the same things to defense counsel that he had said to police. The State then moved to introduce the fifty-three page transcription of defense counsel’s interview. Appellant made an extensive objection based on hearsay. The State countered that it was offering the complete transcript of the interview by defense counsel to rebut the insinuation of a recent fabrication. The court admitted the fifty-three page transcription under Ark. R. Evid. 801 (d)(l)(ii). Defendant appeals. The majority opinion holds that the transcription of defense counsel’s unsworn interview with the witness was properly admitted as evidence. I dissent.

II. LAW

B.

Rule 801 of the Arkansas Rules of Evidence provides that “A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . . . consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” Ark. R. Evid. 801 (d)(1)(H) (emphasis added). The theory underlying the rule is that evidence which counteracts a suggestion that the witness has changed his story in response to a motive for fabrication, by showing the response was the same prior to external pressure being applied, is highly relevant in shedding light on the witness’s credibility at trial. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). Examples of the correct application of the rule can be found in the following federal cases. In United States v. Gonzalez, 700 F.2d 196 (5th Cir. 1983), the court held that the defendant should have been allowed to introduce evidence of his prior consistent statement to his wife where there was implication that he had fabricated lack of criminal intent. In United States v. Fieldman, 711 F.2d 758 (6th Cir. 1983), the court affirmed a ruling admitting the prior consistent statement of a government witness where defense counsel, during cross-examination and opening and closing argument, impliedly charged that a government “deal” motivated the witness to fabricate his trial testimony and that the prior statement was made before the witness entered into a plea agreement with the government. Finally, in United States v. Albert, 595 F.2d 283 (5th Cir. 1979), cert. denied, 444 U.S. 963 (1979), the court held that it was not error to admit into evidence a tape recording between the witness and a drug dealer, portions of which corroborated the witness’s testimony, where on cross-examination defense counsel brought out that the witness had not agreed to testify until an arrangement had been reached about a disposition of the charges against defendant. See 4 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence, ¶ 801 (d)(1)(B)[01 ] (1995).

Here, there was no showing of a motive to fabricate testimony which arose between the interview with defendant’s attorneys and the testimony at trial. The witness was not charged with a crime, there was no attempt at a “deal,” and there was no threat of him being charged. There was no attempt to work out anything with anybody on the part of the witness. The majority opinion does not suggest even a remote possibility of a motive to fabricate that could have arisen between defense counsel’s interview and the trial. Such a showing, either express or implied, is essential under the clear language of the Rule. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986).

Evidence of prior consistent statements cannot be used to bolster credibility unless they come within the requirements of Ark. R. Evid. 801(d)(1)(ii) or (iii). Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984); Pennington v. State, 24 Ark. App. at 72, 749 S.W.2d at 681. A prior consistent statement may not be introduced simply to bolster the testimony of a witness at trial. Pennington v. State, 24 Ark. App. at 72, 749 S.W.2d at 681 (quoting Weinstein, supra ¶ 801(d)(1)(B)[01] (1987)). Thus, the ruling admitting the interview was in error.

Even if some part of the interview had been admissible within the purview of Ark. Rule Evid. 801 (d)(1)(h), it was admissible only to the extent that it related to the same subject matter. The rest of it was hearsay and not admissible. United States v. Dennis, 625 F.2d 782 (8th Cir. 1980).

B.

The majority opinion is far reaching. Since Rule 801 applies to all trials, it will apply to all future trials, both civil and criminal. The majority opinion holds that prior consistent statements, without more, are admissible to bolster a witness’s testimony. No other jurisdiction so construes Uniform Rule 801(d)(1)(h). The result may well be that, in this jurisdiction, an attorney can no longer take complete statements of witnesses because such an interview can now be used by opposing counsel to bolster the opposing party’s testimony.


author: Tom Glaze, Associate Justice.

text:
    Annette MASON, et al. v. STATE of Arkansas
    95-690
    914 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Heather P. Hogrobrooks, for appellants.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Associate Justice.

The state filed delinquency petitions in juvenile court, alleging Frederick Mason and Nicholas Mason were each guilty of burglary and two counts of felony theft of property. At a hearing, the court entertained true pleas from both. Frederick entered a plea to one count of burglary and two counts of theft, and Nicholas pled to one count of burglary and one count of theft. Frederick and Nicholas were then placed on six months supervised probation, followed by six months unsupervised probation. After their respective pleas and judgments were entered, the Masons retained new counsel who filed notices of appeal from the court’s judgments. On appeal, the Masons contend that (1) their pleas were not intelligent, knowing, or voluntary and (2) their prior counsel was ineffective.

We first point out that the Arkansas Rules of Criminal Procedure apply to delinquency proceedings, Ark. Code Ann. § 9-27-325(f) (Supp. 1995). Thus, under Ark. R. Crim. P. 36.1 (1995), juvenile defendants, like the Masons here, may not appeal from a plea of guilty or nolo contendere, except as provided by Ark. R. Crim. P. 24.3(b). Rule 24.3(b) provides a defendant may enter a guilty plea conditioned on the reversal of a pretrial determination of a motion to suppress illegally obtained evidence. Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994). The Masons’ guilty pleas were not conditional and do not fall within the terms of Rule 24.3(b). Consequently, we are precluded by Rule 36.1 from hearing their appeals. See also Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995).

Because we have no authority to consider the Masons’ appeals, we also are unable to consider their ineffective assistance of counsel argument. Accordingly, we dismiss this appeal.

       More fully, § 9-27-325(f) provides that, until rules of procedure for juvenile court are developed and in effect, the Arkansas Rules of Civil Procedure shall apply to all proceedings and the Arkansas Rules of Criminal Procedure shall apply to delinquency proceedings. On June 19, 1989, this court referred the Arkansas Juvenile Justice Commission’s petition to this court’s standing Committee on Civil Procedure (now Practice) to determine what juvenile rules and procedures are advisable. No report has been submitted to this court by our committee, so this court’s civil and criminal rules continue to control juvenile proceedings. In Re: Rules of Juvenile Court Procedure, 299 Ark. 575, 771 S.W.2d 25 (1989).

         The Masons’ argument appears doubtful in any event. Arkansas Rule of Criminal Procedure 37 is applicable to juvenile proceedings under § 9-27-325(f), but that rule, providing defendants the opportunity to argue ineffective assistance of counsel, is available only when they are in custody. See Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). Here, the Masons are not in custody. For clarity, we further note that, prior to enactment of § 9-27-325(f), the court held that juvenile delinquent proceedings were not covered by Rule 37. See Robinson v. Shock, Supt,, 282 Ark. 262, 667 S.W.2d 956 (1984).