author: David Newbern, Justice.

text:
    JEFFERSON COUNTY CHILD SUPPORT ENFORCEMENT UNIT v. Vollie HOLLANDS, II
    96-474
    939 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Catherine J. Waddell and Eugene Hunt, for appellant.
    No response.
   David Newbern, Justice.

On September 22, 1995, appellant Jefferson County Child Support Enforcement Unit (“JCC-SEU”) filed a motion in the Jefferson Chancery Court that, in essence, sought to register a 1982 Michigan child-support order for enforcement in Arkansas under the Uniform Interstate Family Support Act (“UIFSA”). The motion stated that, under the Michigan decree, appellee Vollie Hollands, II, owed to his former wife Constance Hollands an accumulated child-support arrearage of $39,642.50. The Chancellor denied the JCCSEU’s motion to fix the arrearage at this level and stated he was not obligated to enforce a Michigan support decree filed under UIFSA because Michigan had not enacted that statute. The Chancellor further indicated that one of his previous orders, entered under the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”), had modified Mr. Hollands’s support obligation under the original Michigan decree and that, in light of Mr. Hollands’s payments pursuant to the Chancellor’s RURESA order, the remaining arrearage was fixed at $15,298. As we find both of the Chancellor’s conclusions to be erroneous, we reverse and remand the case for further proceedings consistent with our opinion and the procedures described in UIFSA. Ark. Code Ann. §§ 9-17-101 to 9-17-905 (Repl. 1993).

On December 29, 1982, Ms. Hollands was awarded a judgment of divorce against Mr. Hollands by the Circuit Court of Kalamazoo County, Michigan. The Michigan court awarded custody of the parties’ son, Vollie Hollands, III, to Ms. Hollands and ordered Mr. Hollands to pay child support in the amount of $87 per week.

Ms. Hollands returned to the Michigan court in April 1988 and filed a petition under RURESA to enforce the child-support award against Mr. Hollands in Jefferson County. Ms. Hollands alleged that Mr. Hollands had ceased making support payments in March 1987, and she petitioned the Michigan court to forward the relevant papers to the Jefferson Chancery Court so that it could order Mr. Hollands to pay his weekly support obligation of $87 and to pay $50 per week on the accrued arrearage of $18,481, or, alternatively, to pay “any such sum” as the Chancery Court determined “to be fair and reasonable.” On April 20, 1988, the Michigan court filed a “certificate and order” finding that Mr. Hollands owed a duty of support to his son and requesting the Chancery Court to “enter an order for support directed to [Mr. Hollands] as such Court shall determine to be fair and reasonable . . . .” The Michigan court forwarded to the Jefferson Chancery Court copies of Ms. Hollands’s RURESA petition, the divorce decree, the certificate and order, and the Michigan RURESA. These documents were filed in the Chancery Court on October 27, 1988, in accordance with the Arkansas RURESA.

On November 4, 1988, the Chancery Court entered an order acknowledging that $18,481 was the amount owed by Mr. Hollands for the arrearage that had accrued under the Michigan court’s decree prior to the filing of that decree in the Chancery Court under RURESA. In the same order, however, the Chancery Court prospectively reduced Mr. Hollands’s child-support payment from $87 per week to $25 per week and ordered Mr. Hollands to pay $5 per week on the $18,481 arrearage. The Chancery Court continued to order lesser amounts in subsequent orders, and it based its determination of the arrearage that accrued after the Michigan decree was filed in the Chancery Court on the various lesser support awards instead of the Michigan court’s original award of $87 per week. In an order entered on July 10, 1992, the Chancery Court stated that the amount of the arrearage had increased to $20,091, and it ordered Mr. Hollands to pay a weekly child-support payment of $107.50 and to pay the same amount toward the accrued arrearage.

On February 21, 1995, the Family Support Division of the Kalamazoo County Prosecutor’s Office in Michigan filed a petition with the JCCSEU requesting it to register the 1982 Michigan support decree in the Chancery Court for enforcement under UIFSA. Act 468 of 1993 had repealed RURESA, which last appeared at Ark. Code Ann. §§ 9-14-301 to 9-14-344 (Repl. 1991), and adopted UIFSA in its place. See Ark. Code Ann. §§ 9-17-101 to 9-17-905 (Repl. 1993). The UIFSA petition filed by the Michigan authorities with the JCCSEU stated that Ms. Hollands had received her last support payment on December 20, 1994, and that the amount of arrearage owed by Mr. Hollands for the period from July 9, 1982, to February 3, 1995, was $39,642.50. This amount was based upon the Michigan court’s original support award of $87 per week.

As we mentioned above, the JCCSEU then filed on September 22, 1995, a motion in the Chancery Court seeking to enforce the Michigan decree under UIFSA. Although we are puzzled by the style of the motion ■— i.e., a “motion to convert URESA action to UIFSA action” — it is clear to us that the motion simply sought to register the 1982 Michigan decree for enforcement under UIFSA and to request the Chancellor to calculate the 'arrearage owed by Mr. Hollands with reference to the Michigan court’s award of $87 per week rather than the Chancery Court’s modified support awards. The JCCSEU attached to its motion the UIFSA petition and accompanying exhibits filed by the Michigan authorities. Mr. Hollands filed a response to the JCCSEU’s motion and simply denied the allegations and requested that the motion be dismissed.

The Chancery Court denied the JCCSEU’s motion at the conclusion of a hearing held on December 5, 1995. As we indicated, there are two apparent bases for the Chancellor’s ruling. First, the Chancellor stated that he was not obligated to enforce the Michigan support order under UIFSA because Michigan had not yet enacted that statute.

Second, the Chancellor stated that he was authorized to “modify” the Michigan court’s original support award; that his order of July 10, 1992, effectively modified the Michigan decree; and that the remaining arrearage due to Ms. Hollands had to be calculated with reference to that order. According to the Chancellor, the language in Ms. Hollands’s 1988 RURESA petition and the Michigan court’s certificate and order requesting him to award a “fair and reasonable” amount of child support permitted him to modify the Michigan court’s original award’ of $87 per week. The Chancellor maintained that he did just that with his order on July 10, 1992, which apparently was the last order modifying Mr. Hollands’s support obligation and which established the arrearage due to Ms. Hollands at $20,091. The Chancellor indicated that Mr. Hollands had made payments pursuant to this order and thereby had reduced the arrearage to $15,298. The Chancellor accepted this sum as the remaining arrearage due to Ms. Hollands, and he declined to refigure the amount using the Michigan court’s award because he knew of no authority “by which we could go back and set aside an order that’s been on the books seven years.” The Chancellor ordered Mr. Hollands to continue making child-support payments in accordance with the July 1992 order.

Í. Reciprocity under UIFSA

We first address the suggestion made by the Chancellor that a state that has enacted UIFSA may decline to enforce a sister state’s support decree filed under UIFSA if the sister state has not adopted that statute. We do not agree that Michigan’s failure to enact UIFSA permitted the Chancellor to decline to enforce the Michigan decree that was filed pursuant to the Arkansas UIFSA. We find nothing in the language of our statute that imposes a reciprocity limitation, and we therefore conclude that the General Assembly did not intend to make the UIFSA procedures available only to those states that have adopted UIFSA.

Our conclusion is supported by the following statutory commentary:

3. RECIPROCITY NOT REQUIRED.

Reciprocity of laws between states is no longer required because at present all states have quite similar laws, and the enacting state should enforce a support obligation irrespective of another state’s law. Nonetheless, consistent with past practice, URESA, RURESA and all substantially similar state laws are deemed equivalent to UIFSA . . . for purposes of interstate actions .... This means that any of these acts can be used if different states have different versions in effect, which should help ease the transition to the new Act ....

Commentaries on Ark. Code Ann. § 9-17-101 et seq., Vol. B, at p. 327 (Repl. 1995). Thus, it was error for the Chancellor to base his decision to deny the JCCSEU’s motion on the failure of the State of Michigan to adopt UIFSA.

2. Modification of original support decree under RURESA

The other reason given by the Chancellor for denying the JCCSEU’s motion was that one of the orders he had entered pursuant to RURESA seven years previously had “modified” the Michigan court’s support decree and could not be “set aside.” Therefore, according to the Chancellor, the prior order he had entered under RURESA controlled the calculation of the child-support arrearages owing to Ms. Hollands.

As noted above, the General Assembly repealed RURESA when it enacted UIFSA, and the motion brought by the JCCSEU on behalf of the State of Michigan was brought under UIFSA rather than RURESA. Nonetheless, we must apply RURESA and the case law interpreting it in order to ascertain the effect, if any, of the Chancellor’s previous RURESA order upon the original Michigan support decree. Office of Child Support Enforcement v. Troxel, 326 Ark. 524, 526, 931 S.W.2d 784, 785 (1996). The Chancellor’s RURESA order entered in July 1992 did not nullify the Michigan decree; thus the Chancellor erred in refusing to calculate the amount of arrearages owed by Mr. Hollands with reference to the Michigan court’s award of $87 per week in child support.

As we observed in the Troxel case, the effect of an Arkansas court’s RURESA order upon a sister state’s support decree must be determined in fight of RURESA’s “anti-supersession clause,” which provides in part as follows:

A support order made by a court of this state pursuant to this subchapter does not nullify ... a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this state.

Ark. Code Ann. § 9-14-331 (Repl. 1991)(repealed 1993).

In the Troxel case, we cited Tanbal v. Hall, 317 Ark. 506, 878 S.W.2d 724 (1994), and Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987), for the proposition that an Arkansas court does not nullify or supersede a sister court’s support decree in a RURESA proceeding unless it specifically provides for nullification. Absent express words of nullification, we said, an order filed by an Arkansas court that imposes a child-support obligation different from the obligation originally imposed by the sister state does not change or modify the sister state’s decree.

Although an Arkansas court is free to require a lesser payment from the obligor spouse, the obligor spouse remains obliged for the difference between the original award and the modified award unless the order reducing the support obligation expressly nullifies the sister state’s decree. If there are no express words of nullification, the sister state’s decree remains extant, and arrearages accrue under the original support obligation even as the obligor satisfies the locally ordered support obligation. The obligor, of course, is entitled to credit for any payments he or she makes under the orders of the Arkansas court reducing the child-support obligation.

In the Troxel, Tanbal, and Britton cases, this Court reviewed the Arkansas courts’ orders and found no express words of nullification. We therefore concluded that the sister state’s decree remained in effect and that the obligee spouse was entitled to an arrearage as calculated under the original decree. Likewise, in the case at bar, the orders of the Chancellor do not contain express words of nullification. Therefore, we must conclude that the Chancellor failed to effect a “nullification” of the Michigan order and that the Chancellor erred in refusing the JCCSEU’s request to determine the arrearage owed to Ms. Hollands based on the Michigan court’s decree awarding $87 per week in child support.

We agree with the courts of other jurisdictions that the “responding court” in a RURESA action, such as the Jefferson Chancery Court in this case, “may enter its own support order prospectively raising or lowering the amount of the support obligation, if the circumstances before it warrant such a change.” White-Nathan v. Nathan, 888 P.2d 237, 240 (Ariz.App. Div. 1 1994). However, “a variation between the support amount provided in the RURESA order and that in the underlying support order does not in itself alter or modify the underlying support order.” Id. If the RURESA order of the “responding court” does not specifically provide that it is modifying or nullifying the underlying support order, “the RURESA support order does not nullify or supersede the original support order, and arrearages will continue to accumulate under that order.” Id. at 241. See also Kranz v. Kranz, 525 N.W.2d 777, 781 (Wis.App. 1994) (stating that it “is sensible to require a responding court to enforce only the level of support it determines is reasonable under its laws,” but maintaining that the responding court’s “determination does not affect the enforceability of the support ordered in the initiating court’s prior judgment”); Wade v. Wade, 552 So.2d 1279, 1281 (La.App. 5 Cir. 1989)(“The trial court is correct in its finding that the defendant is entitled to credit for amounts paid pursuant to the Alabama URESA order, but is still in arrears for the difference between that amount and the amount due on the Louisiana order, since no modification by the Alabama court supersedes the Louisiana judgment.”). See Annotation, 31 A.L.R. 4th 347 (1984).

Because the Chancellor erroneously evaluated the effect of his previous RURESA order on the original Michigan decree, we must reverse and remand this case for further proceedings consistent with this opinion and the procedures specified in UIFSA.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Hubert L. WHITE & Sharon G. White v. Evelyn R. WELSH, Representative of the Estate of Martin Hardcastle; Marion County, Arkansas, by Judge Kenneth Jefferson, Intervenor
    96-223
    939 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Hubert L. White and Sharon G. White, pro se.

      Michael E. Kelly, for appellees.
   Tom Glaze, Justice.

In 1978, Jack McPherson filed suit against Marion County, seeking to enjoin the use of a roadway across his property and to prevent the County from grading the roadway, which served as access to property owned by Martin Hardcastle. McPherson and the County settled their dispute, and on November 20, 1978, an order was entered in which the parties agreed that McPherson was to provide an alternate access or roadway across his property to serve the needs of Hardcastle’s land, and that the County would grade and maintain it.

In July of 1990, Hardcastle died, and on October 26, 1990, the Hardcastle Estate was opened, and Evelyn Welsh was appointed personal representative. In 1991, the McPhersons sold their property to Hubert and Sharon White, and shortly after-wards, the Whites locked the gates across the alternate roadway, preventing access to Hardcastle’s land. On October 14, 1991, the Hardcasde Estate filed suit in chancery court against the Whites and McPhersons, seeking to enjoin them from interfering with the roadway. The Whites counterclaimed.

On August 28, 1992, the chancery court entered an order substituting Welsh, personal representative of the Estate, as the plaintiff. On July 14, 1993, the chancery court granted Marion County’s petition to intervene as a necessary party, and the County pled the same claims and requested the same relief as the Estate. Subsequently, the McPhersons were dismissed from the litigation.

The Whites then moved to dismiss Welsh, asserting she had no standing. The trial court treated the motion as one to make more definite and certain, and allowed Welsh twenty days to file an amended complaint. Welsh timely filed her pleading on November 9, 1994. Because Welsh’s probate order authorizing her to sell the Hardcasde land was not effective until November 10, 1994, the trial court later allowed Welsh to ratify her November 9 petition, which she did on May 2, 1995.

Following trial on the matter, the court entered its final order on November 29, 1995, wherein it held that the easement described in the earlier November 20, 1978 court order had been established by use and prescription and is appurtenant to the Hardcasde land. The trial court found that Welsh’s suit was not barred by the seven-year statute of limitations for recovery of real estate. Further, the court directed the Whites to remove obstructions to the roadway within ten days and permanently enjoined them from obstructing the roadway again. The trial court dismissed the Whites’ counterclaim and remaining motions.

On appeal, the Whites argue four main points, but we consider points one and three together, since they tend to overlap. First, the Whites contend the trial court erred in allowing Welsh to be substituted as a party-plaintiff and in failing to dismiss Welsh’s complaint. The Whites maintain the original complaint filed by the Estate was void because it was filed by the Hardcastle Estate, a legal nonentity and nonexisting party, that had no standing to sue, and in the amended complaint filed by Welsh, she failed to show any title or ownership in the disputed easement.

Welsh clearly had a property interest giving her standing. Rule 17(a) provides that every action shall be prosecuted in the name of the real party-in-interest. Also relevant is Ark. Code Ann. § 28-49-101(b)(l) (1987), which provides that real property shall be an asset in the hands of the personal representative when the court finds that the real property should be sold. Here, Welsh petitioned to sell 120 acres of the Hardcastle land, and that petition was granted by the probate court. Specifically, Rule 17(a) provides as follows:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

What constitutes a reasonable time under Rule 17 is a matter of judicial discretion and will depend upon the facts of each case. Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). We believe the record amply supports the trial court’s finding that Welsh, in protecting the Hardcastle interest in this cause, was properly and timely substituted and ratifed under the terms of Rule 17.

The Whites also argue Welsh’s claim was stale and barred by the statute of limitations. This court has held that where an action is brought in the name of a nonexisting plaintiff, an amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations. Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971). Here, the Whites blocked the disputed roadway in 1991, and on May 2, 1995, Welsh ratified the Hardcastle Estate’s complaint against the Whites. Unquestionably, Welsh’s claim was filed well within the seven-year statute of limitations the trial court found applicable in this case. See Ark. Code Ann. § 18-61-101(a) (1987). The Whites do not argue that the trial court applied the wrong limitation provision.

In their first argument, the Whites also maintain that they were prejudiced by the substitution and ratification because the original complaint, as ratified, contained only conclusory statements of Hardcastle’s interest in the easement, and neither they nor Hardcastle were parties to the 1978 agreed order. As already discussed, the record reflects that, under the 1978 agreed order, the alternate roadway served the needs of Hardcastle’s land, and Welsh, as representative of the Hardcastle Estate, had an interest in assuring that roadway or easement remained open. Concerning the Whites’ specific argument that the Hardcastle Estate’s complaint was conclusory, the Whites could have moved for a more definite statement under Ark. R. Civ. P. 12(e), but failed to do so. Instead, the Whites answered the original complaint against them, denying each allegation.

In their second argument, the Whites contend the trial court erred in denying their motion for summary judgment on their counterclaim. Again, the Whites argue Welsh had no standing to bring the present action against them, and no material facts are in dispute on this issue. While we touched on this standing issue when discussing the real party-in-interest point above, the short answer to this argument is that the denial of a motion for summary judgment is neither reviewable nor appealable. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

The Whites’ final major point challenges the sufficiency of the evidence supporting the trial court’s holding that the 1978 agreed order established an easement appurtenant to Hardcasde’s land by prescription across the Whites’ property. The Whites’ argument is meridess. Welsh introduced the testimony of a surveyor, the county judge who served in 1978, and Hardcastle’s lessee. These witnesses offered proof that the alternate roadway had been laid out and graded, and subsequently used since 1978. The Whites, on the other hand, merely objected to Welsh’s witnesses and chose not to call any of their own. The Whites relied solely on their deed which reflected no easement. Without more, this court cannot say the trial court was clearly erroneous. Therefore, we uphold the trial court’s ruling that the 1978 order gave Hardcastle a prescriptive easement across the Whites’ property and that the roadway continued in use until 1991 when the Whites locked the gates, preventing the roadway’s use.

For the reasons stated above, we affirm.

       The Whites mention a number of subpoints that tend to merge or overlap at times under their major points. We have addressed those issues raised, discussed, and supported by some citation of legal authority. As to any remaining subpoints, this court will not consider argument not supported with citations of legal authority. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).


author: Donald L. Corbin, Justice.

text:
    Wayne RIFFLE and Charles Mitchell, a/k/a M.R. Properties, a Partnership v. George G. WORTHEN, William B. Worthen, Mary Fletcher Worthen, Renee B. Fletcher, as Executor of the Estate of Thomas B. Fletcher, Deceased, Renee B. Fletcher, Evan M. Fletcher, Heidi F. Nichols, and John Does 1-10
    95-1239
    939 S.W.2d 294
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellants.

      Wright & Bonds, by: Edward L. Wright, for appellees.
   Donald L. Corbin, Justice.

Appellants, Wayne Riffle and Charles Mitchell, a/k/a M. R. Properties, a partnership, appeal the decree of the Pulaski County Chancery Court declaring that they were not entitled to an appurtenant easement or an easement of necessity over land adjoining their land and owned by Appellees, George C. Worthen, William B. Worthen, Mary Fletcher Worthen, Renee B. Fletcher individually and as executor of the estate of Thomas B. Fletcher, Evan M. Fletcher, Heidi F. Nichols, and John Does 1-10. The court of appeals certified this case to us as one involving the construction of a deed. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(16) and (d) (as amended by per curiam order July 15, 1996). We find no merit and affirm.

Appellants own approximately 270 acres of real property in Pulaski County bordering the Arkansas River south of the David D. Terry Dam. It is not disputed that the only public access to Appellants’ land is through the Arkansas River. Appellees own approximately 2,400 acres of real property, which they commonly refer to as the Fletcher Farm. The Fletcher Farm is contiguous to Appellants’ property with Appellants’ property lying on the southern boundary of the Fletcher Farm. Appellants filed this suit for declaratory and injunctive relief alleging they were entitled to an appurtenant easement or alternatively an easement of necessity over the Fletcher Farm. Appellants claimed that roadways existed on the Fletcher Farm that would provide access to their land without further action on Appellees’ or Appellants’ part and without any further burden to Fletcher Farm. Appellants further requested that Appellees be enjoined from interfering with their right of access to their land.

After a bench trial, the chancellor found that the deed in which Appellants claimed they were granted an appurtenant easement only granted an easement that was personal to the grantees therein and thus ruled that Appellants were not entitled to an appurtenant easement. The chancellor also found that there was no unity of title to the two tracts of land and therefore ruled Appellants were not entitled to an easement of necessity. The chancellor entered a decree consistent with these ridings. This appeal followed.

Appellants’ first point for reversal is a challenge to the chancellor’s ruhng that they did not have an appurtenant easement. Appellants rely on a quitclaim deed dated June 4, 1971, as the source of their alleged appurtenant easement. The quitclaim deed states in pertinent part:

QUITCLAIM DEED
Preamble
The Grantors and Grantees herein are relatives and wish by an exchange of conveyances to establish amicably and with certainty the lands each owns . . . and to relocate a portion of the boundary between their respective properties for purposes of convenience. Now, Therefore, KNOW ALL MEN BY THESE PRESENTS:
THAT We, Mary Fletcher Worthen, a married woman conveying in my own right, and Thomas Fletcher, Jr. and Renee B. Fletcher, his wife, Grantors, for and in consideration of the sum of $1.00 and other good and valuable consideration in hand paid by the Grantees, the receipt of which is hereby acknowledged, do hereby grant, convey, sell and quitclaim unto Albert L. Fletcher, Helen Frame Kilgallon and Marie Frame Van Alen, Grantees, and unto their heirs and assigns forever, all our right, tide, interest and claim in and to the following lands lying in Pulaski County, Arkansas, to-wit:
The SW'A of the SWV4 and the WV2 of the SEV4 of the SWV4 of Section 13;
The SV2 of the SEV4 of Section 14 except the North 330 feet thereof;
The NEV4 of Section 23; and
The NV2 of the SWV4 and the NWV4 of Section 24 except the North 1076 feet of the EV2 of the NEV4 of the NWV4 of said section,
All of said lands lying in Township 1 South, Range 11 West.
After this conveyance, the Grantors and the Grantees will have a common East/West boundary line in the SE'A of the aforesaid Section 14, 330 feet South of the North line of the SV2 of the SEV4 of the section. The Arkansas River is the West boundary of the Grantors’ and Grantees’ lands at the common boundary line. . . . [T]he Grantors covenant that if their lands are added to by accretion or avulsion and thereby extend South of the present common boundary line if extended Westward, the present common boundary as so extended shall remain the East/ West boundary between the lands of the Grantors and Grantees, and Grantors shall not claim land South of the boundary. This shall be a covenant to run with the land and against the Grantors, their heirs or assigns, as owners of the lands North of the aforesaid common boundary.
The Grantors own certain lands which lie between the lands herein conveyed and a pubhc roadway known as Steele Bend Road. Therefore, by this instrument, the Grantors also convey to the Grantees the right of ingress to and egress from said pubhc road across the Grantors’ intervening lands. Said right may be exercised along any roadway existing on the Grantors’ lands from time to time and/or along field boundaries, but if the Grantees estabhsh a roadway along field boundaries, they may not in so doing damage or destroy crops or timber without making just compensation for the damage done. Provided, however, if a pubhc road is ever established upon or abutting the lands herein conveyed by the Grantors, the rights given to the Grantees by this paragraph shah terminate.

Appellants purchased their land from two of the three grantees in the quitclaim deed, Helen Kilgallon and Marie Stagmer, formerly Marie Van Alen. The Grantors in the quitclaim deed are Appellees’ predecessors in title.

Appellants contend that the language of the quitclaim deed clearly and unambiguously creates a dominant and servient tenement in that the lands of the Grantors are burdened with providing access to the Grantees’ lands until such time as a public road is established upon or abutting the lands conveyed in the deed. Appellees respond that the quitclaim deed does not grant an easement that runs with the land, but rather grants a right of ingress and egress that was personal to the Grantees thereof. As did the chancellor, we agree with Appellees.

Appurtenant easements run with the land and easements in gross are personal to the grantors. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). An appurtenant easement serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Id. An easement in gross does not have a servient tenement because it benefits a person or an entity, not the land. Id.

Because the deed in question does not specify whether the right of ingress and egress is appurtenant or in gross, we must interpret the deed. When interpreting a deed, we give primary consideration to the intent of the grantor. Id. The grantor’s intent should be determined solely from the language of the deed unless the language of the deed is ambiguous, uncertain, or doubtful. Id.

The language of the quitclaim deed is clear and unambiguous. The deed states that “Grantors also convey to the Grantees the right of ingress to and egress from said public road across the Grantors’ intervening lands.” However, in the actual conveyance of the land, the deed states “Grantors ... do hereby grant, convey, sell and quitclaim unto . . . Grantees, and unto their heirs and assigns forever, all our right, title, interest and claim in and to the following lands lying in Pulaski County, Arkansas[.]” The use of the words “heirs and assigns forever” in the conveyance of the actual land coupled with the absence of similar words of reservation in the conveyance of the right of ingress and egress indicates that the intent of the grantors was to convey a personal right of access or an easement in gross.

Such an intent is further evidenced by the language in the deed as to the purpose of the deed: “The Grantors and Grantees herein are relatives and wish by an exchange of conveyances to establish amicably and with certainty the lands each owns . . . and to relocate a portion of the boundary between their respective properties for purposes of convenience.” It is clear that the deed was an attempt to settle a boundary dispute between relatives, thus it follows that the corresponding conveyance of the right of ingress and egress was intended for the personal use and benefit of the grantees. Accordingly, we cannot say the chancellor erred in ruling that the deed did not establish an appurtenant easement to Appellants’ land.

Appellants argue, for the first time on appeal, that the declaration that they do not have an appurtenant easement amounts to a restraint on alienation. They contend that their property is not marketable if it is accessible only by the Arkansas River and not by roadway. The record does not reveal that this argument was raised below, that there was any evidence presented on the issue of lack of marketability, or that the trial court made a ruling in this regard. Consequendy, we do not address this argument.

As their second point for reversal, Appellants contend the chancellor erred in ruling they did not have an easement of necessity. The chancellor based her ruling on the fact that the requirement of unity of title was not satisfied. The chancellor stated from the bench:

I believe the tract that is Fletcher Farm, or a part of Fletcher Farm, in fact was owned by the same person who is the predecessor in title of [Appellees], but owned jointly. That the person who is the predecessor in title to [Appellants] never in his own right held title to Fletcher Farm property. He and his brother owned it joindy and then later conveyed it to this brother who held it individually. But at no time was H. L. Fletcher ever the owner of Fletcher Farm property. H. L. Fletcher and John Fletcher owned it jointly. H. L. subsequently conveyed it to John and then H. L.- is the predecessor in title to [Appellants].

The accuracy of the chancellor’s statement is confirmed by the preamble to the quitclaim deed. There is simply no evidence in this record to establish that the two tracts of land at issue were ever under common ownership. It is true that the record does establish that Appellees’ land was once owned jointly by two brothers, H.L. Fletcher and John Fletcher, and that Appellants’ land was once owned by FI.L. Fletcher. But there is simply no evidence that unity of title exists in the sense that these two parcels of land were at some point one parcel.

The person who asserts an easement has the burden of proving the existence of the easement. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987). It is well settled that:

“A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of land of a stranger, for, if one owns land to which he has no access except over the lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own.”

Boullioun v. Constantine, 186 Ark. 625, 628, 54 S.W.2d 986, 987 (1932) (quoting Washburn’s Treatise on Real Property). Thus, to establish an easement of necessity, Appellants had the burden of proving unity of tide in the sense that the same person or entity once held title to both tracts, that the unity of title was severed by a conveyance of one of the tracts, and that the easement is necessary so that the owner of the dominant tenement may use his land, with the necessity existing both at the time of the severance of title and at the time the easement is exercised. Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d 37 (1990) (citing Burdess v. United States, 553 F. Supp. 646 (E.D. 1982)). The degree of necessity must be more than mere convenience. Brandenburg v. Brooks, 264 Ark. 939, 576 S.W.2d 196 (1979). When a parcel of land is accessible by a navigable body of water but not by road and motor vehicle, the accessibility via the water does not defeat a showing of necessity. See Attaway v. Davis, 288 Ark. 478, 707 S.W.2d 302 (1986) (discussing establishment of necessity for a private road in Ark. Code Ann. § 27-66-401 (Repl. 1994)).

Here, Appellants did not meet their burden of proving unity of title. The evidence in this record falls short of establishing that the two tracts of land were once held under the same tide and were subsequently severed into the current two tracts. The joint ownership of one of the two tracts of land does not meet this requirement. United States v. Thompson, 272 F. Supp. 774, 785 (E.D. Ark. 1967); see Charles C. Marvel, Annotation, Unity of Title for Easement by Implication, 94 A.L.R.3d 502, §§ 4 and 10 (1979 & Supp. 1996). In addition, the joint ownership of one of the two tracts does not establish that either of the tracts was ever burdened as a servient estate. Consequendy, Appellants are strangers to the tide of Appellees’ land and therefore cannot raise an easement of necessity. Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970); Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957); Mettetal v. Stane, 216 Ark. 836, 227 S.W.2d 636 (1950); Messer v. Houston, 212 Ark. 349, 205 S.W.2d 467 (1947). We find no error in the chancellor’s riding in this regard.

We find no error in the chancellor’s decree and affirm.

Special Justices Frank H. Bailey andJ.W. Gileen, Jr. join in this opinion.

Glaze and Brown, JJ., not participating.


author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    Wiley GRUBBS v. CREDIT GENERAL INSURANCE COMPANY
    96-889
    939 S.W.2d 290
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Callis L. Childs and Richard W. Weinthal, for appellant.

      Wright, Lindsey & Jennings, by: Kathryn A. Pryor and Kristi M. Moody, for appellee.
   Robert L. Brown, Justice.

On December 7, 1992, appellant Wiley Grubbs was involved in an automobile accident with William Hall in Faulkner County. Grubbs sued Hall as a result of the accident and obtained a judgment against him in the amount of $27,500. Grubbs then filed suit against appellee Credit General Insurance Company, Hall’s liability carrier, to enforce the judgment. Credit General denied the material allegations raised by Grubbs in his complaint and affirmatively pled failure to state facts upon which relief could be granted.

Discovery ensued, and in response to discovery, Credit General denied that Hall was covered on the date of the accident. According to Credit General, Hall’s policy coverage was from September 25, 1992, to March 25, 1993, but Hall faded to pay his monthly premium. On November 23, 1992, Credit General maded a notice of cancedation to Had for fadure to pay the premium. Grubbs contended that the actual date of mailing was November 24, 1992. The cancedation notice stated that the coverage would lapse as of 12:01 a.m. on December 3, 1992. A notice of lapsed insurance was next maded to Had showing that the coverage was canceded on December 2, 1992, although Credit General later admitted that the effective date of cancedation was December 3, 1992. On December 5, 1992, Had’s mother maded a check to Credit General for the premium payment, reinstatement fee, and late charge in the amount of $115.45, and Had’s insurance was reinstated on December 10, 1992. On December 14, 1992, Hall’s mother sent a second premium check to Credit General in the amount of $105.45.

Credit General moved for summary judgment premised on the fact that Hall’s liability coverage had been cancelled prior to the accident and that the cancellation notice complied with both the terms of the policy and the governing statute. Grubbs responded to Credit General’s motion with a pleading entitled “Plaintiffs Motion for Declaratory Judgment, By Summary Judgment, and Response to Defendant’s Motion for Summary Judgment” and asserted that Credit General failed to comply with the ten-day cancellation notice required by the policy and the controlling statute.

At the hearing on the motions, Credit General conceded that its notice of cancellation was mailed on November 24, 1992, and the trial court found that that was the date of the mailing. Despite this finding, the trial court concluded that proper notice of the cancellation was sent ten days prior to the effective cancellation date. The trial court further found that because a premium payment was not made by December 3, 1992, coverage was cancelled as of that date and that as a result, no insurance coverage was in effect when the accident occurred on December 7, 1992.

The primary issue on appeal is whether Credit General’s cancellation notice was in compliance with the pertinent Arkansas statute which reads:

No notice of cancellation to any named insured shall be effective unless mailed or delivered at least twenty (20) days prior to the effective date of cancellation, provided that, where cancellation is for nonpayment of premium, at least ten (10) days’ notice of cancellation accompanied by the reason therefore shall be given.

Ark. Code Ann. § 23-89-304(a)(2) (Repl. 1992). Similarly, Hall’s insurance policy with Credit General provided for cancellation for failure to pay premiums by giving “at least ten days notice.” The purpose of the notice is to give the insured the opportunity to obtain insurance elsewhere before he or she is subjected to no protection. Merrimack Mut. Fire Ins. Co. v. Scott, 219 Ark. 159, 240 S.W.2d 666 (1951).

Grubbs argues that the statute was not followed because less than ten full days expired between November 24, 1992, and December 3, 1992, which was the stated effective date of the cancellation. He relies in his calculations on Ark. Code Ann. § 16-55-119 (1987), which reads: “Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.” See also Ark. R. Civ. P. 6(a). Credit General, nonetheless, counts November 24, 1992, as the first day of the notice and contends that the policy was cancelled on December 3, 1992, which was exactly ten days after the notice was mailed, just as the trial court found. In doing so, the carrier contends that the trial court’s interpretation was consistent with the specific language of § 23-89-304 because it requires ten days notice “prior to” cancellation.

In calculating time limitations, this court has observed that uniformity in our decisions is important. See Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988). In this regard, we note that both § 16-55-119 and Ark. R. Civ. P. 6(a) provide that the first date and the last date should not both be counted when computing a period of time between two fixed dates. We have followed this method of calculation in fixing a limitation period for the time of filing pleadings as well as for certain notices. See, e.g., Hodge v. Wal-Mart Stores, Inc., supra (time for refiling complaint under one-year savings statute); Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965) (time for notice to tenant to vacate).

When construing a cancellation clause in an insurance policy requiring ten days’ prior notice, we have interpreted that to mean something different, namely ten full days of notice. See Northwestern Nat’l. Cas. Co. v. Thomas, 248 Ark. 989, 455 S.W.2d 87 (1970). In Thomas, we expressly described what constituted ten days’ notice by an insurer prior to the cancellation date:

The determinative provision in the cancellation clause in the policy reads: “This policy may be cancelled by the company by mailing to the insured *** written notice stating when not less than ten days thereafter such cancellation shall be effective.” When we interpret that clause, particularly in a light most favorable to the insured, the sensible conclusion is that he had ten days after the mailing of the notice within which to pay for the endorsement of November 5. In other words his policy remained in force for an additional ten calendar days. The notice is said to have been mailed on November 26. That date is not to be counted in computing the ten-day grace period allowed by the contract. . . .
Excluding November 26 and counting ten full days following, the notice could not affect appellee’s policy before midnight, December 6.

248 Ark. at 991, 455 S.W.2d at 88-89.

This court and the Court of Appeals have held that the plain language of the cancellation provisions fixed by either statute or the insurance policy must be strictly followed. See, e.g., State Farm Fire and Cas. Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988) (statute); Riverside Ins. Co. v. Parker, 237 Ark. 594, 375 S.W.2d 225 (1964) (policy); Merrimack Mut. Fire Ins. Co. v. Scott, supra (policy); Hart v. MFA Ins. Co., 268 Ark. 857, 597 S.W.2d 105 (Ark. App. 1980) (policy). We apply that standard to the instant case and hold that after eliminating the date of mailing the cancellation notice, which was November 24, 1992, the effective date of cancellation — December 3, 1992 — did not give Hall ten days’ notice. Indeed, because the notice of cancellation was effective at 12:01 a.m. on December 3, 1992, Hall, as a practical matter, received only eight days’ notice. Hence, the notice was ineffective.

An ancillary question remains to be answered, and that is whether the ineffectiveness of the notice was cured by the passage of time. Credit General contends that even if statutory notice was deficient as of December 3, 1992, it certainly met the ten-day requirement prior to the accident on December 7, 1992.

The strongest authority for holding Credit General’s notice completely ineffective comes from the language of the statute itself. It provides that no cancellation notice for nonpayment of premiums shall be effective unless given ten days prior to the effective date of cancellation. Ark. Code Ann. § 23-89-304(a)(2) (Repl. 1992). The language of the statute is plain and unambiguous, and when that is the case, we give the language its ordinary meaning. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993).

As already confirmed in this opinion, when cancellation of insurance is the issue, we require full compliance with the plain language of the governing statute. See, e.g., State Farm Fire and Cas. Co. v. Stockton, supra. In Stockton, the issue was whether the insurer must notify both the insured and the lienholder when cancelling an automobile liability insurance policy. The insured received notice dated September 10, 1985, that her policy would be cancelled on September 24, 1985, but the lienholder was never sent notice. Payment was not made, and a collision occurred on September 25, 1985. We held that even though the insured was notified of the cancellation, the notice was ineffective because the insurer failed to give notice to the lienholder, as required by Ark. Code Ann. § 23-89-304 (1987). We interpreted the straightforward language in the statute and held that the notice of cancellation was not effective unless delivered to the insured and the lienholder.

Cases from other jurisdictions buttress the holding in State Farm Fire and Cas. Co. v. Stockton, supra, that a notice of cancellation must comply with the plain language of the statute. See, e.g., Munoz v. New Jersey Auto. Full Ins. Underwriting Ass’n, 145 N.J. 377, 678 A.2d 1051 (1996); Moore v. Scottsdale Ins. Co., 264 Ga. 808, 450 S.E.2d 198 (1994); Maine Bonding & Cas. Co. v. Knowlton, 598 A.2d 749 (Me. 1991); Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 382 S.E.2d 745 (1989); Bank v. Kavanaugh, 67 N.Y.2d 392, 494 N.E.2d 82 (1986). Moreover, where the effective date of cancellation is not specified in the notice required by statute, even though that date might be subject to calculation, the high courts of Maine and North Carolina have held that the notice is ineffective. See Maine Bonding & Cas. Co. v. Knowlton, supra; Pearson v. Nationwide Mut. Ins. Co., supra.

This latter circumstance approximates what we have in the case before us. The effective date of cancellation was erroneous and the notice, as a consequence, was invalid. The proper date of cancellation may well have been subject to calculation after the fact. But that lends confusion to the process and places the courts in the posture of fixing effective dates of cancellation when, under the statute, that should be the task of the insurance companies. In addition, as has already been underscored in this opinion, strict compliance with the cancellation statute is what is mandated — not substantial compliance — and the error in setting a premature cancellation date flies in the face of that basic requirement.

In short, this is not a case where policy language merely requires notice for a certain number of days before cancellation. See, e.g., Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445 (1913). This case turns on the statutory mandate that an effective date of cancellation be fixed. An invalid effective date of cancellation voided the cancellation, and the coverage remained in effect.

The order of summary judgment is reversed, and the case is remanded for further proceedings.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. The majority opinion says the cancellation notice was ineffective because it stated the wrong date upon which cancellation would become effective. I find no authority for that statement. Arkansas Code Ann. § 23-89-304(a)(2) (Repl. 1992) does not require the insurer to furnish an “effective date” in its notice of cancellation for failure to pay premium. It merely provides that cancellation shall be effective ten days after notice. According to the statute and to the policy, the notice became effective December 4, 1992. That was prior to the attempt to reinstate the policy and certainly prior to the accident from which the claim arose.

I respectfully dissent.

       It is unclear from the record as to whether Hall was delinquent on more than one premium payment.

       Grubbs originally raised three points on appeal but in his Reply Brief withdrew two of the three points, leaving only the issue of the effectiveness of the notice of cancellation.


author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

text:
    Lee GOSTON v. STATE of Arkansas
    CR 96-1200
    939 S.W.2d 818
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Rice, Adams & Pace, P.A., by: Kelly M. Pace, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

At issue in this case is whether the trial court abused its discretion in excluding the appellant, Lee Goston, from his trial. Prior to his trial for second-degree battery, the trial court excluded Goston from trial because of recent incidents of disruptive behavior. Goston appealed and argued that the trial court wrongfully excluded him from trial.

The court of appeals reversed the conviction, and remanded the case for a new trial. Goston v. State, 55 Ark. App. 1, 930 S.W.2d 384 (1996). We granted a petition for review. Upon granting a petition for review from a decision of the court of appeals, we review the case as if the appeal was originally filed in this court. Armer v. State, 326 Ark. 7, 929 S.W.2d 705 (1996); Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). We conclude that the trial court abused its discretion in excluding Goston from his trial, and reverse and remand for a new trial.

Goston’s abstract reveals the following sequence of events leading up to his exclusion. On June 6, 1995, Goston was set to be tried on a second-degree-battery charge. Prior to trial that day, Goston’s counsel informed Goston that he was not going to be allowed to be present during trial. Goston then explained to the trial court that “I have got all of my membranes and I am all right, I am capable of sitting in there and conducting myself like a proper young man. I would like to assist my counsel in interrogating the witnesses.”

Goston also indicated that he was dissatisfied with defense counsel, and that he knew more about the case than counsel did. Defense counsel replied that he had been unable to discuss the case with his client, because he had refused to talk to him when he visited him in the jail. Defense counsel told the trial court that he had a good idea of the witnesses’ testimony, and that he had made a previous court appearance where Goston refused to walk on his own and had to be carried out of the courtroom. Defense counsel also described an incident in another case where Goston was disruptive in front of the jury panel. In his opinion, Goston would be better off excluded from trial; the prosecuting attorney agreed.

Goston then replied that he was not violent and posed no threat to the jury. He said that his prior incidents stemmed from drug-induced hallucinations. The trial court then told Goston that he “had never seen anybody in court like you were the last two times.” Goston again maintained that he had been under the influence of drugs in the past, and emphasized that his prior disruptive behavior occurred in April or May. He then moved to dismiss the charges based on a speedy-trial violation, which the trial court denied. When Goston again said that he would like to assist his attorney at trial, the trial court replied, “That will be denied because of the way you acted here in this courtroom the last two times you have been here. You have shown the propensity to make it necessary for you to stay out of the courtroom during this trial.”

Goston then noted that he had been speaking in a reasonable tone and a respectful manner, but the trial court recollected the last time Goston had been in court and had his shackles taken off, “[y]°u still acted up and after giving me your word, Mr. Goston. So I can’t believe you.” Goston conceded that he cursed at members of the jury panel, but said that he never hit anybody. He again said that he was not violent and wished to assist his counsel, and that he would “use my senses, my better sense of judgment. . . I am asking you with the utmost respect for your authority.”

Defense counsel then added that he felt uncomfortable sitting next to Goston unless he was shackled, given his prior statements that he desired to strike past counsel. However, he also opined that shackling Goston in front of the jury would not help his cause, and the trial court agreed.

Goston then moved to fire defense counsel because he “didn’t trust him.” He said that if he had to, he would rather ask questions himself while in shackles. The trial court denied Gos-ton’s motion to proceed pro se. Goston repeated that he posed no threat to the jury or any others in the courtroom, and then the trial court had Goston removed from the courtroom for the duration of his trial. The jury ultimately convicted Goston and sentenced him to six years’ imprisonment.

On appeal, Goston argues that the trial court erred in excluding him from trial in violation of his constitutional right to be present and to confront witnesses. We review the trial court’s determination for an abuse of discretion. See Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996).

Article 2, Section 10, of the Arkansas Constitution and the Sixth Amendment of the United States Constitution guarantee an accused the right to confront witnesses against him. This right encompasses the basic right of a criminal defendant to be present in the courtroom at every stage of the trial. See Lewis v. United States, 146 U.S. 370 (1892). However, the United States Supreme Court has held that the right may be forfeited when the accused behaves in a disruptive manner that makes it difficult to carry on the trial. Illinois v. Allen, 398 U.S. 915 (1970).

In Allen the trial court repeatedly warned the defendant that he would be removed from the courtroom if he persisted in his disorderly conduct. Ultimately the defendant was removed, but the trial court reiterated that he could return whenever he agreed to conduct himself properly. The defendant eventually gave some assurances of proper behavior, and was allowed to return to trial.

On habeas review, the Allen Court concluded that the defendant forfeited his right to be present because of his behavior. The Court observed that judges confronted with disruptive behavior must have discretion to meet the circumstances of each case, and that “no one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” Id. The Court additionally added that the right to be present may be reclaimed as soon as the defendant indicates willingness to conduct himself in a respectful manner consistent with the decorum of the courtroom. The Court suggested that there were at least three constitutionally permissible ways to handle the “obstreperous defendant”:

(1) bind and gag him, thereby keeping him present;
(2) cite him for contempt;
(3) take him out of the courtroom until he promises to conduct himself properly.

Id. The Court concluded that removing the defendant was not the only constitutional method of dealing with him, but that the trial court did not commit legal error in the manner it dealt with the defendant.

A similar situation was presented to this court in Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990), where the trial court removed the defendant from the courtroom after disruptive behavior. This court held that the defendant forfeited his right to be present through his own actions. While the trial court did not specifically warn the defendant that he would be removed from the courtroom before he was actually removed, the trial court “went to appellant’s cell to try to convince him to return to the courtroom without being opprobrious, warned appellant that the trial court would proceed with or without him, and informed him that he could return at any time as long as he did so without contumacy.” Id.

In the present case, the State argues that the trial court’s detailed knowledge of Goston’s past behavior was a sufficient factual basis for Goston’s exclusion. We agree that the trial court’s knowledge of a defendant’s past behavior is a relevant consideration in the trial court’s exercise of discretion under Illinois v. Allen.

For example, in United States v. Munn, 507 F.2d 563 (10th Cir. 1974), cert. denied, 421 U.S. 968 (1975), the Tenth Circuit affirmed the trial court’s brief exclusion of the appellant from his trial for robbery. In Munn the appellant had physically assaulted his past lawyers, including the one who ultimately represented him at trial. A few weeks prior to trial during a pretrial hearing, the appellant threatened the trial court with violence, after which the court warned the appellant that he would be removed to a room where he could hear the proceedings if he acted improperly at trial.

At trial, the appellant used extremely abusive language and created a disturbance in the courtroom as jury selection was about to begin. The trial court then ordered the appellant into an office where he could hear the proceedings, and he was also advised that he could confer with counsel from time to time while he was absent. The appellant was absent from the courtroom for an hour and fifteen minutes, and he was allowed to return for the remainder of the trial after a promise to behave.

The Munn court rejected the appellant’s contention that a contemporaneous warning of exclusion was required, noting that he had been warned during his prior tirade weeks earlier. Moreover, the appellant was able to hear the proceedings during his short exclusion from the courtroom.

The Tenth Circuit was also unpersuaded by the appellant’s argument that he was not allowed to return soon enough after he agreed to change his behavior. The court noted that Illinois v. Allen contained “no absolute mandate dictating the return of every defendant who has been removed from the courtroom simply on his verbal promise to reform.” Id. The court further recognized the value of prior conduct in assessing such a promise, and that the trial court should be given discretion to evaluate the sincerity of a recantation. Under the particular circumstances presented, the Munn court could not conclude that the trial court abused its discretion in failing to immediately return the appellant to trial after his promise to behave.

The defendant’s past behavior was also a valid consideration in Scurr v. Moore, 647 F.2d 854 (8th Cir. 1981), cert. denied, 454 U.S. 1098 (1981), where the district court sustained the defendant’s habeas writ on the basis that his exclusion from his state court murder trial deprived him of his constitutional right of confrontation. On habeas review the Eight Circuit reversed, holding that the defendant’s confrontation rights were not violated. On the fifth day of his trial, the defendant brutally assaulted a jailer during a recess. The State requested that the defendant be shackled, noting that he had been subject to violent outbursts at a psychiatric facility while being evaluated some months prior to trial. The trial court entertained the request and the defendant was shackled.

On the seventh day of his trial, the defendant directed a number of disrespectful and obscene verbal outbursts at a witness and the trial court. The trial court removed the defendant, and the examination of the witness continued. After about twenty to thirty minutes of testimony, a short recess was taken after which the defendant was allowed to return to the courtroom without incident.

The Eighth Circuit held that the trial court properly considered the defendant’s past out-of-court conduct in exercising its discretion. The Scurr court also held that the trial court’s failure to inform the defendant that he could return upon proper assurances was not error, even though such a procedure was “desirable.” Id. Given that the defendant was only excluded for a brief period of time and returned following a recess, the court concluded that the trial court’s procedure was consistent with Illinois v. Allen.

Unlike the defendants in Munn, supra, and Scurr, supra, Gos-ton was never given the opportunity to return to trial. The record suggests that he was excluded for the duration of the trial, and there is no indication that he was placed where he could listen or otherwise observe the proceedings or consult with counsel. Moreover, his behavior on the day of trial did not appear to be disruptive; rather, the abstract suggests that Goston acted in a calm and respectful manner.

Obviously, the trial court was unconvinced by Gos-ton’s repeated assurances that he could maintain appropriate behavior during the course of the trial. Moreover, we recognize that the trial court is in a superior position to evaluate Goston’s sincerity on this issue. In fact, Goston had already broken a prior promise of good behavior to the trial court.

Nonetheless, Goston was never afforded any opportunity to reclaim his right of confrontation. The trial court based its ruling on prior incidents that occurred within the past sixty days, and gave Goston no chance to conduct himself in an appropriate manner in the present case.

We note that in condoning the removal of the defendant in Illinois v. Allen, the Supreme Court seemed to place great weight on the fact that the trial court reiterated to the defendant that he could return to trial when he agreed to conduct himself properly. Likewise, this court emphasized the same thing in Terry, observing that the trial court explained to the defendant that he could return if “he did so without contumacy.”

In the present case, Goston assured the trial court that he would behave during the trial and indicated a desire to aid defense counsel. Goston had not engaged in disruptive behavior during the pretrial hearing on June 6, 1995. Nor was Goston informed that he had permanendy forfeited his right of confrontation, subject to no reclamation. Instead, he was removed for the entire length of his trial and was never given the opportunity to return. Under these circumstances, we conclude that the trial court abused its discretion in removing him.

We are aware of no case where a defendant was permissibly excluded from his entire trial, without being informed of the trial’s progress or afforded an opportunity to return, based solely on his prior conduct in other matters. While the minority characterizes Goston’s conduct at the pretrial hearing as insolent and disruptive, the trial court had already made the determination to exclude Goston before the pretrial hearing. Moreover, the trial court never indicated that Goston was presently behaving in a contemptuous manner.

Reversed and remanded.

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

Tom Glaze, Justice,

dissenting. How many times may a defendant misbehave at his or her jury trial before a trial judge may remove the defendant from the courtroom? How many times must a trial judge accept a defendant’s false promises that he or she will not disrupt trial proceedings before the trial judge has the discretion to no longer believe the defendant’s assertions? Where a defendant has evidenced past violent behavior, and on the day of trial states that he might get violent, is this conduct sufficient to permit the trial judge to exclude the defendant from the courtroom? In my view, Goston’s repeated, false promises and disruptive and violent behavior were clearly sufficient to allow the trial judge to remove Goston from his jury trial.

The majority opinion correcdy discusses the governing case law in considering a trial judge’s alternatives when confronted with a disruptive, misbehaving defendant, but it glosses over Gos-ton’s recurring misbehavior, which the trial judge relied upon in exercising his discretion to exclude Goston from the trial proceedings. Instead, the majority largely recounts Goston’s assurances to the trial judge at the June 6, 1995 trial that (1) he was capable of conducting himself like a proper young man; (2) he wanted to assist his counsel during trial; and (3) he was not violent and posed no threat to anyone in the courtroom. In rejecting Goston’s assurances as false promises, the trial judge listed Goston’s prior actions the judge believed subverted any assurances Goston made at his June 6, 1995 trial.

In exercising his discretion to remove Goston from the courtroom on June 6, the trial judge found that, within the past sixty days, Goston had in three other trial proceedings (1) refused to walk on his own and had to be carried into the courtroom; (2) had laid on a table and refused to participate in a prior trial proceeding; (3) had cursed defense counsel during voir dire of the jury and also threatened his attorney. At the last trial proceeding before the trial judge, the judge, after being assured by Goston that he would behave, had Goston’s shackles and handcuffs removed; nonetheless, Goston afterwards cursed the jury, and caused the judge to call a mistrial and to release forty called jurors and ten witnesses. It is also significant that the trial judge had knowledge that Goston had caused another mistrial only days before, during another jury trial before a different judge. There, Goston had been belligerent, used grossly inappropriate language and profanity toward the judge, threatened to kick over a table and proclaimed, “We are going to fight up in here.” See Goston v. State, 55 Ark. App. 17, 930 S.W.2d 800 (1996).

Goston continued his insolent and disruptive behavior at a pretrial hearing before his June 6, 1995 trial, and while the majority characterizes his actions as “calm and respectful,” I leave that to you, the reader, to decide. For example, at the same time Goston was reassuring the judge at pretrial that he would conduct himself appropriately at trial, Goston exhibited disrespect and argued with the judge throughout the hearing. Goston refused to cooperate or communicate with his counsel, and tried to fire him immediately prior to trial. What better way, I ask, can a defendant disrupt or halt his proceeding? Goston further accused his counsel of falsifying records, and claimed he would not communicate with his attorney because Goston’s “mind was telling [him] that all white people are devils.” Goston argued with the judge, stating he was a member of a gang and “. . . the same things you think about gangs is the same thing we think about you and the police . . . .” Goston further told the judge that, while he posed no threat to the jury or any person in the court, “I might get violent in effect.”

At this point, I mention the majority’s suggestion that the trial judge never considered or relied on how Goston acted at his pretrial hearing when the judge ruled Goston should be excluded from the courtroom. Such a suggestion wholly ignores the record and what took place at the hearing. Obviously, the judge saw and heard first hand Goston’s hostile remarks and threats, and it is sophomoric to think the judge failed to take Goston’s actions and enmities into consideration when barring him from the courtroom. Even if the trial judge failed to repeat every action Goston took towards disrupting another trial, our court can readily go to the record to support why the judge ruled as he did.

From Goston’s prior misbehavior and the misconduct he exhibited at the June 6 pretrial proceeding, the judge simply did not believe Goston would conduct himself appropriately at trial. Goston is no newcomer to the justice system; he had twenty criminal charges pending against him at the time of trial, and he had attended a number of hearings and trials. Ten of those charges involved violent crimes such as aggravated robbery and aggravated assault. This case, in fact, involved his having struck a police officer, causing the officer to have surgery on his nose. Based upon Goston’s past and present obstreperous behavior, the trial judge had every right to disbelieve Goston’s assertions that he would behave, and believe his empty promises would assuredly result in a third mistrial. Based upon Goston’s own words, the trial court could have reasonably expected Goston to be violent.

In conclusion, the principle is settled that a court should vigilantly protect a defendant’s constitutional rights, but it was never intended that any of these rights be used as a ploy to frustrate the orderly procedures of a court in the administration of justice. U.S. v. Nunez, 877 F.2d 1495 (10th Cir. 1989); see also Scurr v. Moore, 647 F.2d 854 (8th Cir. 1981). And while it has been stated that, once a defendant’s confrontation right has been lost through misconduct, it may be regained as soon as the defendant is willing to conduct himself consistently with decorum and respect, Illinois v. Allen, 397 U.S. 337 (1970), such statement is not intended as an absolute mandate dictating the return of every defendant who has been removed from the courtroom simply on his verbal promise to reform. United States v. Munn, 507 F.2d 563 (10th Cir. 1974). As pointed out in Munn, prior conduct may indicate such a promise is of little value, and some discretion is still left with a trial court to pass upon the sincerity of a defendant’s recantation. The Scurr court stated the trial court’s duty in such matters in these following terms:

Removal should be limited to cases urgently demanding that action, but the balancing of the defendant’s confrontation right with the need for the proper administration of justice is a task uniquely suited to the trial judge. Sufficient discretion must be granted to meet the circumstances of each case. (Emphasis added.)

In the present case, the trial judge was not required to wait for Goston to act on the violence he voluntarily announced he might commit during trial. Nor was the judge required to observe Goston commit further defiant and disruptive actions in front of the jury before he could exclude Goston from the courtroom. To do so would have predictably resulted in another mistrial. Plus, considering Goston’s violent history and threats, someone likely would have been injured, if the judge had failed to exclude Goston.

If Goston had truly repented of his past acts of misconduct and had shown a sincere willingness to behave at trial, the trial court would have been obliged to allow Goston to be present at trial. Instead, Goston manifested his continued contempt and hostility toward the trial court and his attorney.

In my view, the trial judge’s decision to exclude Goston from the courtroom was the only reasonable choice to ensure that the orderly administration of justice could be achieved. The Sixth Amendment right of confrontation does not stand as a shield to protect the accused from his own misconduct or chicanery. Diaz v. United States, 223 U.S. 442 (1912); United States v. Carlson, 547 F.2d 1346 (1976). Accordingly, I would uphold the trial judge’s rulings and affirm Goston’s conviction.

In its closing paragraph, the majority opinion states that the majority is unaware of any case “where a defendant was permissibly excluded from his entire trial, without being informed of the trial’s progress or afforded an opportunity to return, based solely on his prior conduct in other matters.” I reiterate — Goston had already caused a mistrial in his jury trial before this judge. As has been well stated by the Eighth Circuit Court of Appeals in Scurr, the removal of an obstreperous defendant from the courtroom requires no “formalistic sequence of warnings,” nor is it necessary for more than one warning to be given. Scurr, at 858. The Scurr court further held that, while it is desirable for a trial judge to give the defendant an assurance that he can return to the courtroom if he behaves properly, such procedure is not an absolute requirement. Id.

As noted above, Goston showed no remorse for his past misconduct, and instead continued his show of hatred and hostility towards the judicial process. The trial judge not only acted prudently when removing Goston from the proceedings, he likely prevented Goston from acting on his threats to commit violence against his attorney or others present in the courtroom.

Arnold, C.J., and Corbin, J., join in this dissent.


author: Annabeixe Clinton Imber, Justice.

text:
    Frederick JACOBS v. STATE of Arkansas
    CR 95-808
    939 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Steven R. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Annabeixe Clinton Imber, Justice.

The appellant was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. Because it has proved impossible to reproduce an adequate record of the proceedings below, we are left with no choice but to remand the case for a new trial.

On October 16, 1993, Shelia Lambert was shot to death outside of her trailer in Monticello, Arkansas. Two days later, her boyfriend, Frederick Jacobs, was taken into custody and gave a detailed statement confessing to the crime. On November 15, 1993, Jacobs was charged with capital murder. The case was eventually set for trial to begin on December 13, 1994, with a disposition hearing scheduled for November 21, to take up pretrial motions.

Jacobs’s trial counsel, G.B. “Bing” Colvin III, filed a number of pretrial motions. Among other things, Jacobs challenged the constitutionality of the Arkansas death penalty procedure and moved to prohibit death qualification of the jury. Jacobs also moved to suppress his statement and to prevent the submission of aggravating circumstances to the jury that were completely unsupported by any evidence. While these motions are contained in the record, the pretrial hearing on the motions and the trial court’s rulings are not in the record.

The case proceeded to trial on December 13, 1994, and continued for three days. On December 15, 1994, the jury convicted Jacobs of capital murder and sentenced him to life imprisonment without parole. All of the proceedings, including both the guilt and sentencing phases of trial, cannot be found in the record.

The trial court appointed Robert Remet to represent Jacobs during his appeal. On January 10, 1995, Jacobs filed a notice of appeal that designated the entire record, and a “motion to extend filing time” with the trial court which requested a seven-month period in which to lodge the record. The trial court granted this motion. The State also filed a notice of cross-appeal with the trial court, challenging certain evidentiary rulings of the trial court regarding aggravating circumstances.

Val Dixon-Sims was the court reporter who reported all of the proceedings in the Jacobs case. On July 3, 1995, Dixon-Sims mailed a letter to Remet and the circuit clerk informing them that the storage room where she kept tapes, notes, and exhibits was vandalized on January 17, 1995. She further wrote that a large portion of the tapes and notes from the Jacobs case were destroyed.

Jacobs petitioned this court for a writ of certiorari to complete the record. On September 18, 1995, we denied the writ, holding that the trial court erred in granting Jacobs an extension to file the transcript without a hearing or proof that the transcript was ordered. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995) (per curiam).

Stephen Davis was then appointed to represent Jacobs on December 4, 1995, replacing Remet. Jacobs subsequently filed a “motion for an evidentiary hearing” with the trial court. Among other things, Jacobs requested that the trial court make certain findings with respect to the transcript, and that a new trial be granted if the transcript could not be reconstructed. This hearing was held on January 30, 1996.

At the hearing, Dixon-Sims testified that she reported Jacobs’s entire trial using the “Stenomask” method, and that she also made a backup recording. She said that she received Jacobs’s notice of appeal shortly after January 10, 1995, and that she understood that he wished to designate all of the proceedings.

On the morning of January 17, she discovered that her storage room had been vandalized, leaving her tapes, exhibits, and other trial materials strewn over her yard and carport. It had rained the night before and many of the materials were wet. When asked how many tapes were made of the Jacobs case, she recalled that there were about twenty. However, she only brought ten tapes to the hearing. She said that those ten tapes were the ones prepared from a tape recording of the live proceedings, and that the other ten were made from the Stenomask. According to Dixon-Sims, the ten tapes from the Stenomask were still in her storage space.

After the incident, Dixon-Sims attempted to listen to the tapes, and could not hear what was being said. She testified that the condition of the tapes made it impossible for her to prepare a transcript from them. She also suggested that the prosecuting attorney had contacted the FBI in an effort to enhance the tapes.

Colvin testified as to his general recollection of the proceedings in the Jacobs case. He said that the pretrial hearing on his pretrial motions was reported. He also recalled at least one motion for a mistrial during the course of the trial. Colvin had ten pages of handwritten trial notes that were introduced into evidence. When asked whether he thought he could fairly reconstruct a record of trial from the notes, he responded in the negative. Given the length of the trial and the number of motions and objections, Colvin did not think that a fair record of the proceedings could be produced -without a verbatim transcript.

Following the January 30 hearing, the trial court entered an order on February 9. The trial court found that the trial record could not be reconstructed at the time. He further granted the State sixty days in which to determine whether the court reporter’s tapes could be enhanced.

On May 8, 1996, Jacobs filed a motion for belated appeal with this court, which we granted. Jacobs v. State, 325 Ark. 30, 922 S.W.2d 344 (1996) (per curiam). We additionally directed the trial court to order a licensed court reporter to transcribe as much of the tapes as possible, “in an attempt to see if a sufficient record can be obtained, so omitted portions can be reconstructed by the court and the parties.” Id.

On July 2, 1996, the trial court held another evidentiary hearing on the matter. According to the written report prepared by the FBI expert who analyzed the tapes, the tapes could not be enhanced. It was also her opinion that gaps in the tapes were caused by a mechanical failure in one of the court reporter’s microphones. Portions of at least one tape were clearly audible, but after a short period of time, the quality would diminish, resulting in gaps where no sound could be heard. Additionally, it was revealed that the ten tapes prepared from the open microphone were the only tapes of the proceedings in the Jacobs case. The ten tapes from the Stenomask itself either did not exist or had not been produced.

The trial court proceeded to listen to the tapes, and entered an order finding that no more than ten percent of the tapes were audible. Moreover, the audible portions were sporadic and inconsistent. According to the trial court, audible portions would begin when the court microphone was repositioned when different people began to speak. However, these portions would last no more than five minutes. The court further found that the original Stenomask tapes had not been produced. The trial court concluded that reconstruction of the record for purposes of an appeal was impossible.

Jacobs now brings the present appeal, and argues that he is entitled to a new trial because of the lack of a trial transcript. Jacobs argues the denial of his motion to suppress and an alleged comment by the State concerning his failure to speak as possible substantive errors in the proceedings. He also challenges the legality of his initial arrest.

The trial court has an affirmative duty to see that the court reporter performs satisfactorily in order to provide an adequate appellate record. See Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995) (per curiam); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). In Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam), this court reversed a death sentence and remanded for a new trial on sentencing where there were numerous errors in the transcript of the sentencing hearing and subsequent efforts to setde the record were unsuccessful. We observed that “[i]f a record of trial is insufficient to permit a full review of the proceedings from which an appeal has been taken, we have no alternative but to reverse and remand.” Id. (citing Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982)). In a civil case where portions of the record could not be reproduced due to a mechanical failure in the reporter’s recording device, this court stated that when the record cannot be settled pursuant to Ark. R. App. P. — Civ. 6, reversible error exists. Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982).

In the present case, attempts to reconstruct or settle the record pursuant to Ark. R. App. P. — Civ. 6 have failed. Moreover, our concerns are heightened where, as here, the appeal involves a criminal case where a life sentence without parole has been imposed. Our rules require us to examine the record for all errors prejudicial to the defendant in such cases. Ark. Sup. Ct. R. 4-3 (h). Without an adequate appellate record, such a review is impossible. We are left with no choice but to reverse the conviction and remand the case for a new trial.

Jacobs also contends that the Double Jeopardy Clause prohibits the State from seeking the death penalty in his subsequent retrial. Jacobs primarily relies on Bullington v. Missouri, 451 U.S. 430 (1981). Given that Jacobs has not yet been retried, the issue is not properly before this court for our review.

Reversed and remanded.


author: Annabelle Clinton Imber, Justice.

text:
    NATIONAL BANK OF COMMERCE, et al. v. DOW CHEMICAL CO., et al.
    96-967
    938 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Bernard Whetstone, P.A., by: Kevin Odum, and Bob Davidson, for appellants.

      Wright, Lindsey & Jennings, by: Sammye L. Taylor and Stephen R. Lancaster, for appellees Dow Chemical Co., Rofan Services, Inc., and EPCO, Inc., of Indiana.

      Hankins, Hicks, Madden & Blackwood, by: Stuart W. Hankins, for appellee Metro Builders & Restoration Specialists, Inc.

      Laser, Wilson, Bujford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellee Adams Pest Control of North Litde Rock, Inc.

      Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Derek J. Edwards, for appellee Steam Services, Inc.
   Annabelle Clinton Imber, Justice.

The appellants, National Bank of Commerce (“National Bank”), as guardian of Ashley Smits’s estate, and William J. Smits (“Smits”), individually and as parent and next friend of the minor Ashley Smits, filed a products liability action against the manufacturers and applicators/ distributors of two chemicals which allegedly caused Smits to develop severe birth defects. The trial court dismissed the action without prejudice pursuant to Ark. R. Civ. P. 12(b)(8). National Bank and Smits appeal the dismissal. We reverse and remand.

National Bank and Smits filed a products liability action in federal court on January 24, 1994, against Dow Chemical, Rofan Services, Inc., and EPCO, Inc. (“the Dow defendants”), as the manufacturers of Dorsban LO; and against Steam Services, Inc. (“Steam Services”), as the manufacturer of Firefog 404. According to National Bank and Smits, Ashley’s mother, Maria V. Smits, was exposed to these chemicals while she was pregnant with Ashley thereby causing Ashley to develop severe birth defects. Approximately eight months later, on September 16, 1994, National Bank and Smits also filed this products liability action in the Pulaski County Circuit Court alleging the same occurrence as in the federal action. Flowever, two additional parties were joined as defendants in the state action: Adams Pest Control, an Arkansas corporation, as the applicator/distributor of Dorsban LO, and Metro Builders & Restoration Specialists, Inc. (“Metro Builders”), an Arkansas corporation, as the applicator/distributor of Firefog 404.

The Dow defendants, Steam Services, and Metro Builders responded to the state lawsuit by filing separate motions to dismiss pursuant to Ark. R. Civ. P. 12 (b)(8). During the hearing on February 9, 1996, the defendants asserted that the dismissal was proper because they had already spent approximately $100,000 deposing expert witnesses for the federal case, and that these depositions would have to be duplicated in the state action because the applicator/distributors were not present during the previous depositions for the federal action. Moreover, the defendants argued that defending the simultaneous state action would be unduly burdensome in light of the fact that the federal lawsuit was scheduled to go to trial on April 15, 1996.

Based upon the pleadings and arguments of counsel, the trial court granted the defendants’ motions to dismiss pursuant to Ark. R. Civ. P. 12(b)(8) and dismissed the state action without prejudice as to all defendants. National Bank and Smits appeal from this order of dismissal.

The sole issue on appeal is whether Ark. R. Civ. P. 12(b)(8) should be applied to dismiss an Arkansas circuit court action on the ground that the action is simultaneously pending between the same parties in a federal court. We hold that when the pending action is in a jurisdiction served by courts other than the courts of this state, dismissal on the basis of Rule 12(b)(8) is not permitted.

■ [2] According to the Reporter’s Note to Rule 12, subsection (b)(8) is based upon Ark. Stat. Ann. § 27-1115(3) (Repl. 1962). In Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977), we interpreted that statute as applying only to prohibit identical actions from proceeding between identical parties in two courts of this state. We opined that the matter was one of venue, not at all implicated when one of the actions was in a different “jurisdiction,” i.e. a federal court which, we said, was like the court of another state. As successor to the statute, our Rule 12(b)(8), which is not found in F.R.C.P. 12(b) upon which the remainder of our Rule 12(b) was modeled, applies only to actions filed in separate Arkansas courts. Thus, this court has consistently held that Rule 12(b)(8) prohibits identical cases from proceeding in different courts within this state. Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996); Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984).

Whereas, when identical cases between the same parties are pending in both state and federal courts, a trial court may, but is not required to, exercise the forum non conveniens discretion given it by Ark. Code Ann. § 16-4-101 D (Supp. 1995) (formerly Ark. Stat. Ann. 27-2502 E). Helm v. Mid-American Indus., Inc., 301 Ark. 521, 785 S.W.2d 209 (1990), cert. denied, 498 U.S.850 (1990); Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). The doctrine offorum non conveniens has not been argued in this case and is not at issue.

Rule 12(b)(8) does not confer any discretion upon an Arkansas court confronted with a motion to dismiss when the same action is pending between identical parties in a different “jurisdiction,” such as a federal court or the court of another state. In such a case, as in this case, it is enough to say Rule 12(b)(8) simply does not apply. We must therefore, conclude that the trial court lacked authority to dismiss the state action without prejudice.

Reversed and remanded.

Glaze, J., not participating.


author: Per Curiam.

text:
    James Monroe BOHANAN, II v. STATE of Arkansas
    CR 95-1180
    939 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      Karr & Hutchinson, by: Charles Karr, for appellant.

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

The appellant, James Bohanan, was convicted of aggravated robbery and was sentenced to fifteen years in the Arkansas Department of Correction. The Court of Appeals affirmed his conviction and sentence in Bohanan v. State, CACR 94-227, (January 18, 1995). Within thirty days of the date the mandate was issued from the direct appeal, Bohanan filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. In the petition, Bohanan argued that he was entitled to relief because his counsel was ineffective, and because he suffered other constitutional violations during his trial. The Trial Court denied relief without a hearing. Because we find that the Trial Court’s order is not in compliance with Rule 37.3(a), we reverse and remand.

In his petition, Bohanan argued that his counsel was ineffective at several different points during his trial. He contended that his attorney failed to file a motion for change of venue; that he failed to investigate several alibi witnesses supplied by Bohanan; that he failed to object to the introduction of a sleeping bag into evidence; that he failed to lodge several objections during the examination of witnesses; that counsel failed to request that the jury visit the restaurant that was the site of the robbery; and that he failed to move for a mistrial when the State attempted to introduce photocopies of the money that was stolen. Bohanan also argued that he was entitled to postconviction relief because there was an illegal search of his vehicle; because of prosecutorial misconduct; because of alleged jury tampering; and because his right to counsel was “constructively denied” as the result of frequent moves between detention facilities.

In response to Bohanan’s petition, the State filed a brief with several affidavits in the Trial Court. The affidavits were apparently included to refute the allegations of jury tampering and the illegality of the search of Bohanan’s vehicle. The Trial Court, without a hearing, denied relief in the following order:

Now on this day came before the Court, Defendant’s Petition for Rule 37 Relief, the State’s response to the Petition and Memorandum in support, and Defendant’s response. And, from the pleadings, the Court doth find and Order:

I.

Defendant’s Petition should be denied.

On appeal, Bohanan argues that the Trial Court erred in denying his petition without a hearing, and that he should have been appointed counsel to assist in his preparation of the Rule 37 petition. Also, Bohanan contends that the Trial Court erred in denying his ineffective assistance of counsel claims, and that the Trial Court should not have allowed the State to submit affidavits, in lieu of a hearing, in response to the petition for postconviction relief.

In response, the State contends that a hearing was not necessary because Bohanan failed to allege any prejudice in connection with his ineffective assistance of counsel claims. Therefore, it was apparent from the face of the petition that a hearing was not warranted. The State further contends that, as a result of Bohanan’s failure to allege prejudice, the Trial Court was correct to rule against him on the ineffective assistance of counsel claims, and that there was no reversible error in allowing the affidavits in lieu of a hearing. Finally, in response to Bohanan’s claim involving the appointment of counsel, the State argues that there is no right to counsel in postconviction proceedings.

We turn first to Bohanan’s argument that the Trial Court erred in denying his petition without a hearing. Ark. R. Crim. P. 37.3(a) and Rule 37.3(c) together provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Schneider v. State, 290 Ark. 454, 720 S.W.2d 709 (1986). The circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Rule 37.3(a) provides that where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, the trial court “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” If the trial court fails to make these findings in accordance with the Rule, it is reversible error. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986). If, however, the record before this court conclusively shows that the petition is without merit, we will affirm despite the circuit court’s failure to make written findings. Morrison, supra; Rawls v. State, 264 Ark. 186, 569 S.W.2d 662 (1978).

As can be seen, the Trial Court did not make any written findings in its order. This is not in compliance with Rule 37.3(a). Furthermore, we are unable to affirm despite the absence of these findings because the record before us, which primarily consists of Bohanan’s petition, the State’s response, and Bohanan’s reply, does not conclusively show that the petition is without merit. It may be that the trial record, which is not before us, supports the Trial Court’s denial of the petition. If this is so, the Trial Court must state its reliance on the trial record in its order. Accordingly, we reverse and remand the case to the Trial Court for the written findings required by Rule 37.3(a), and if additional evidence, beyond what is contained in the trial record, is needed to make these findings, an evidentiary hearing should be held pursuant to Rule 37.3(c).

Reversed and remanded.


text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    939 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered March 3, 1997

      William M. Pearson, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jack Gordon Greene was convicted of capital murder and sentenced to death. We affirmed the conviction but reversed the death sentence and remanded the case for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Mr. Greene was again sentenced to death, and a notice of appeal was filed on his behalf. Mr. Greene later moved to dismiss his appeal. His motion was denied because he did not express an unequivocal desire to dismiss the appeal. Greene v. State, 326 Ark. 179, 929 S.W.2d 157 (1996).

On Mr. Greene’s behalf, his attorney filed a second motion to dismiss his appeal. The second request was unequivocal. By a per curiam order of December 9, 1996, we stayed Mr. Greene’s execution and remanded the case so that a determination could be made by the Johnson County Circuit Court whether Mr. Greene “knowingly and intelligently waives his appeal.” Greene v. State, 326 Ark. 822, 822, 933 S.W.2d 392, 392 (1996).

In response to our order, a hearing was held by the Johnson County Circuit Court. The transcript of the hearing has been reviewed. It contains two reports from Arkansas State Hospital personnel finding Mr. Greene competent to stand trial at the times he was tried in 1992 and 1995. Also included with the transcript is a court order for “mental evaluation” of Mr. Greene to be conducted by State Hospital personnel. Although we did not specify in our December 9, 1996 order that an additional psychiatric or psychological review be conducted, the Trial Court apparently felt it appropriate, and that was correct.

From colloquy between Mr. Greene and the Circuit Judge, found in the transcript of the hearing, it appears that an evaluation team from the State Hospital was sent to the Department of Correction to interview Mr. Greene in response to the Circuit Court’s order. Mr. Greene refused to be interviewed, apparently because he thought he was supposed to have been transported to the State Hospital for that purpose rather than be interviewed at the Department of Correction facility in which he is incarcerated.

In Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), we adopted a standard to be applied in death-penalty-waiver cases which is different from that applied when the question is competency to stand trial. Quoting W. White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853, 867 (1987), we noted that, “When competency to elect execution is involved, the issue is whether the defendant has the capacity to choose between life and death. The focus should be upon not only the defendant’s ability to understand the basic issue but also upon his ability to resolve it knowingly and voluntarily.” Franz v. State, supra, 296 Ark. at 189, 754 S.W.2d at 843.

We remand the case to the Trial Court so that an evaluation may be done by State Hospital personnel to determine Mr. Greene’s mental capacity to understand his choice between life and death and to resolve it knowingly and voluntarily. A further hearing is then to be held by the Trial Court to decide the issue.

Remanded.