author: Marian F. Penix, Judge. James H. Pilkinton, Judge,

text:
    Anne Caroline MELVIN v. Cecil N. MELVIN
    CA 80-172
    606 S.W. 2d 90
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      Davis, Bracey & Heuer, P.A., by: Sam T. Heuer, for appellant.

      Pearson & Woodruff, by: Priscilla Karen Pope, for appellee.
   Marian F. Penix, Judge.

Cecil Melvin sued for divorce from Anne Melvin. Anne counterclaimed and was awarded a Decree of Divorce. The Court made a property division by which he granted Cecil the Winnebago motor home, $7,-007.69 for sums advanced by Cecil to pay off the mortgage indebtedness on Anne’s property and $14,279.01 for improvements made by Cecil on Anne’s property. Anne appeals these portions of the decree.

In August 1978 Cecil transferred title to his 1978 Winnebago motor home to Anne. He also made improvements to Anne’s home. He fenced her yard, installed central air conditioning and a railing around the front porch. Cecil also' paid off the first mortgage indebtedness on Anne’s house. The parties married in December 1978 and began to reside in Anne’s house in Springdale. In March 1979 they contracted for some remodeling to be done to the house and work was begun on same. In May, before the remodeling work was completed, the couple separated. Cecil filed for divorce and Anne counterclaimed.

Anne contends it was error for the Court to award the Winnebago to Cecil. In order to finish up the remodeling started on Anne’s home she borrowed $10,000.00 and secured the loan by the title to the Winnebago. The Court, in awarding the Winnebago to Cecil, ordered Anne to satisfy the $10,000.00 indebtedness against the Winnebago. Anne argues the Winnebago is not marital property because it was a gift to her before marriage. Anne contends since it is not marital property Ark. Stat. Ann. § 34-1214 (A) (2) would apply:

All other property shall be returned to the party who owned it prior to the marriage, unless the Court shall make some other division that the Court deems equitable taking into consideration those factors enumerated in subparagraph (A) above, in which event the Court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.

Anne argues the Winnebago was a gift to her prior to marriage.

The parties went on trips together in the Winnebago in the summer of 1978. They became engaged. However, prior to marriage Cecil asked for return of his engagement ring and set out for California in the Winnebago with a Ms. Bascom whom he married. That marriage lasted 10 days. In an effort either to regain Anne’s affection or to avoid Ms. Bascom’s getting the Winnebago, Cecil transferred title to Anne.

The Trial Court found that the transfer of title to the Winnebago was solely to attempt to avoid Cecil’s former wife receiving it in a divorce decree. The evidence surrounding this transaction is controverted. The Court found that the general understanding at the time of the transfer was that it would be transferred back to Cecil at some time subsequent to the divorce from Ms. Bascom. Cecil’s testimony was corroborated by Anne: “He didn’t do it for me. He did it to protect his own interest.”

We agree the evidence supports the Court’s finding that Cecil intended no gift of the Winnebago to Anne. However we find Cecil is estopped from asserting any claim to the Winnebago. This transfer, by Cecil’s own testimony, was effected to preclude any possible claim by Ms. Bascom. This situation is comparable to one in which a husband conveys property to his wife in order to defraud his creditors. “A husband who conveys land to his wife in fraud of creditors is not permitted to invoke the assistance of equity in setting aside the deed; he does not come into court with clean heads.” McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466 (1952). A conveyance made to defraud creditors is still good between the parties. Maupin v. Gaines, 125 Ark. 181, 188 S.W. 2d 552 (1916). Ms. Bascom alone, or another creditor, has the necessary standing to attack this conveyance. Therefore the parties, Anne and Cecil, must be left in the position they now occupy. Title to the Winnebago remains with Anne.

Anne has argued the Chancellor’s judgment of $7,007.69 to Cecil for money he spent to satisfy the first mortgage on Anne’s home amounted to an equitable mortgage and is in error. We find no indication the Chancellor intended this judgment to be an equitable mortgage. There is no deed nor written instrument between the parties. He awarded Cecil a judgment which constitutes a lien on Anne’s property. The testimony regarding Cecil’s paying off the mortgage is contradictory. Cecil contends he paid off the mortgage in contemplation of marriage and expected to have the place in which to reside. Actually he lived there only five months. He never clearly stated he expected one-half interest in the house — however, it isn’t reasonable to conclude he didn’t expect anything, nor is it reasonable for Anne to believe the payment of the mortgage indebtedness was an outright gift. In reviewing the testimony and the record we find substantial evidence to support the Chancellor’s judgment.

Anne contends the Court erred in awarding Cecil $14,-279-01 for improvements and repairs which Cecil made to Anne’s house. Anne argues improvements made by a husband on $. wife’s property creates a rebuttable presumption the improvements are a gift and do not imply a promise on the part of the wife to repay such. The cases cited by Anne hold the presumption of a gift can be overcome only by clear and convincing evidence. Smith v. Smith, 227 Ark. 26, 295 S.W. 2d 790 (1956).

The evidence in the case at hand is clear and convincing that Cecil did not intend the improvements and expenditures on Anne’s property to be gifts. The evidence reflects Anne’s pressure upon Cecil to buy her expensive gifts and to spend large sums of money on improving her house. Cecil spent over $30,000 during the parties’ relationship — which was short lived. The contractor who was doing the remodeling work testified the value of Anne’s house was increased by as much as wgs spent on it. Anne was awarded items of personal property — diamond earrings, watch, gold necklaces, diamond ring, mink coat, Mercury Monarch, clothing and eyeglasses — with a total value of $11,000.

In discussing what is necessary to overcome a presumption of a gift from a husband to a wife in his expenditures upon the wife’s realty the Court in Kelly v. Kelly, 264 Ark. 865, 575 S.W. 2d 672 (1979) said:

. . . this court has found the presumption to be rebutted when the evidence shows that not to do so would violate principles of equity and good conscience . . . But it is not necessary that evidence be undisputed in order to be clear and convincing, if found by the fact finder to carry a clear conviction to the mind.

We find, like the Chancellor, the presumption of a gift is rebutted. In a careful review of the testimony we find the improvements to Anne’s house were made in great part to please Anne, and certainly in an expectation of having a comfortable home in which Cecil would reside for a much greater period of time than five months. The money spent on Anne’s home was non-marital property, not acquired since the couple’s marriage, and a judgment in that amount in Cecil’s favor was a proper one.

We do find error in the Chancellor’s awarding the 1978 Winnebago to Cecil free of the $10,000 encumbrance. The title to the Winnebago should remain in Anne. We find no error in awarding judgment of $7,007.69 to Cecil for non-marital funds used to pay off the mortgage indebtedness on Anne’s house. We find no error in awarding judgment of $14,279-01 to Cecil for non-marital funds spent on improvements to Anne’s house. We find all of the Chancellor’s other findings from which this appeal arises to be supported by a preponderance of the evidence.

Affirmed in part; reversed in part.

Pilkinton, J., concurs in part, dissents in part.

James H. Pilkinton, Judge,

concurring in part, dissenting in part. I would affirm this case in its entirety. The majority agrees that the evidence supports the trial court’s finding that Mr. Melvin did not intend to give the Winnebago to his then lady friend. There is evidence to show that Anne suggested and urged him to transfer the Winnebago to her, which he did at her request and upon her promise to reconvey. In fact, the evidence tends to show that Anne was urging Mr. Melvin to transfer all of his property to her at this particular time. The majority says that Mr. Melvin is estopped from asserting any claim to the Winnebago. Equitable estoppel is an affirmative defense which must be pleaded, and should not be raised for the first time on appeal especially by an appellate court. I do not view this situation as being comparable to one in which a husband conveys property to his wife in order to defraud his creditors.

The record in this case, viewed as a whole, convinces me that the trial court made the most equitable restoration and division of the properties as possible under the circumstances. The opinion of the chancellor substantially complied with the provisions of Ark. Stat. Ann. § 34-1214(A)(2) (Supp. 1979) (Act 705), and therefore I respectfully dissent to the modification and reversal in part of the trial court’s decree. In all other respects I concur.


source: Caselaw Access Project

author: George Howard, Jr., Judge.

license: Public Domain

text:
    Wayne DANIEL v. Fred QUICK and Carolyn QUICK, His Wife
    CA 80-169
    606 S.W. 2d 81
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      Sam Ed Gibson, P.A., for appellant.

      Hoivell & Price, P.A., by: William H. Trice, III, for appellees.
   George Howard, Jr., Judge.

Appellant, a vendor-builder, appeals from a general jury verdict of $6,500.00 in behalf of appellees, purchasers, for defective workmanship in a dwelling house sold to appellees.

Appellant asserts the following grounds for reversal:

1. The trial court erred in denying appellant’s motion to dismiss and then submitting the case to the jury on the theory of express warranty.
2. The trial court erred in denying the appellant’s motion to dismiss and then submitting the case to the jury on the theory of implied warranty.
3- The trial court erred in denying the defendant’s motion to dismiss and then submitting the case to the jury on the theory of negligence.
4. The award of damages in this case is clearly erroneous.

The thrust of appellant’s argument that the trial court erred in submitting the case to the jury on the theory of express warranty may be summarized as:

That there is no testimony in the record of any express warranty made by the appellant and that if any express warranties are present, they were created by the language in appellees’ exhibit 2, a form which describes the materials to be used in the construction, and exhibit 1, a standard offer and acceptance form, which contains a stipulation that the purchasers having inspected the property are not relying upon any warranties, representations or statements made by the seller. In any event, argues appellant, appellant substantially complied with the contract, which is all that is required, and appellees have no room to complain. However, appellant further argues, that “the maximum verdict supportable by the evidence on the theory of express warranty is $500.00” for appellant’s failure to select the paint that had been designated for the bathrooms; and that “appellant recognizes this to be a point submitted and turning on the credibility of witness.”

It is apparent that appellant ultimately concedes that the court was .justified in submitting the case to the jury on the theory of. an express warranty.

We are persuaded that the rule announced by the Supreme Court in Wawak v. Stewart, 247 Ark. 1093, 449 S.W. 2d 922 (1970) that an implied warranty of fitness exists in the sale of a new house by seller who is also the builder is dis-positive of the issue in this case. See also: Coney v. Stewart, 263 Ark. 148, 562 S.W. 2d 619 (1978).

While appellant recognizes the rule in Wawak, appellant seeks to avoid the impact of the rule by arguing that the appellees supplied a set of plans to the contractor, the parties entered into a contract before construction commenced, and that the purchasers were present at the job site on a regular basis; and that .this case is unlike a situation where the contractor constructs a structure from his own plans and offers a finished product for sale to the general public. We hold that there is no material difference between the arrangements here and those in Wawak and Coney so as to justify the designation of appellant as something other than a builder-vendor and thus avoid the application of an implied warranty.

In the instant case, an offer and acceptance was executed by the parties which simply provides that appellant offers to sell “Lot 114 Ramble Estates” to appellees for $41,000.00, payable in two installments: $11,500.00 upon the execution of the offer and acceptance, and the balance of $29,500.00 upon completion of the structure. It is plain that appellees simply submitted to appellant a rough draft of the structure that they desired; and from this draft, appellant drew the official and final plans for the structure. While it appears that appellees made periodic trips to the construction site, the evidence does not reflect that their visits in any way interfered with appellant’s exclusive control and supervision over the project. It seems clear that appellees were simply observing or monitoring the progress of the job.

Upon the payment of the final installment by appellees, appellant permitted appellees to occupy a finished product which carried with it an implied warranty of fitness and habitation. Wawak v. Stewart, supra; Coney v. Stewart, supra. Nor are we persuaded that appellees waived any rights to complain about the defects — failure to use “Don-A-Fill” before the foundation was laid, failure to use washable paint in the bathrooms, faulty door frames, leaks in the shower causing flooding in the bedroom, improper installation of for-mica tops, failure to install flashing on a roof line overlap, crack in the patio, warped ceiling and a broken step on a porch — for it is plain that when these defects were brought to the attention of the appellant, appellant assured the appellees that the defects would be corrected.

' In Carter v. Quick, 263 Ark. 202, 563 S.W. 2d 461 (1978), Justice Fogleman, speaking for the Supreme Court said:

“Waiver of defects is a question of fact to be determined from the circumstances of the case ....
“. . . Payment and occupancy together without more is not a waiver as a matter of law . . . .”

Appellant argues that the trial court erred in submitting the case to the jury on the theory of negligence inasmuch as there is no proof in the record from which the jury might have found actionable negligence.

It is settled law that a trial court has a duty to instruct the jury on all material issues presented by the pleadings and evidence. Western Coal & Mining Co. v. Harrison, 122 Ark. 125, 182 S.W. 525 (1916). In addition, where a case is tried on several theories, the jury should be instructed on all of them when the evidence so warrants. Western Coal & Mining Co. v. Moore, 96 Ark. 206, 131 S.W. 960 (1910).

In addition to relying upon breach of express warranty and implied warranty as a basis for relief, appellees alleged, in the alternative, in their complaint:

In the alternative, the plaintiffs state that defendant was negligent in that he:
1. Failed to exercise ordinary care in the supervision of the construction of the residence of the plaintiffs.
2. Failed to exercise ordinary care to select and employ competent workmen to perform the work necessary to construct plaintiff s residence.
3. Failed to exercise ordinary care to be sure the plaintiffs’ residence was constructed in accordance with the contract and with sound workmanship and proper construction practices and that said construction was to be done with proper materials as described in the description of materials.

Appellee’s expert witness, James Mackey, a remodeling contractor, testified that it would take approximately $8,-000.00 to correct the defects in appellees’ dwelling house; that while building contractors do make mistakes which are regarded as minor and are acceptable to a degree, the defects or mistakes in appellees’ structure are not the type of mistakes that fall within the acceptable “category at all.” Moreover, he emphasized, when asked if any of the defects are acceptable, “no, none of them, I don’t think, in my opinion.”

The trial court gave plaintiffs requested instruction number 6 which set out the material issues presented and the theories relied upon by appellees in their pleadings, including appellees’ theory of negligence, for relief. The appellant specifically objected to appellees’ instruction number 6 by stating “[T]he giving of the words in the second paragraph thereof ‘and is fit for human habitation at the time that he sells it.’ ” Appellant raises for the first time on appeal his claim that the evidence was insufficient to warrant an instruction to the jury on the theory of negligence. Even if appellant’s argument were meritorious, we would be precluded from entertaining this argument because it was not asserted below. Moreover, appellant did not abstract the instruction complained of and it is clear that an appellate court will not explore the transcript for alleged errors. St. Louis, Iron Mountain & Southern Railway Company v. Evans, 80 Ark. 19, 96 S.W. 616 (1906).

Finally, appellant claims that the award of damages in this case is clearly erroneous in that the proper measure of damages should have been the difference in value rather than the cost involved in repairing the defects. We do not agree.

Appellee’s expert witness testified that it would take $8,-000.00 to repair the defects in appellees’ house. The jury determined that appellees’ were entitled to $6,500.00. The total cost of the house was $41,000.00 and appellees’ recovery represents only 16% of the cost.

In Carter v. Quick, supra, the Supreme Court emphasized that the cost of correcting defects, rather than the difference in value, is the proper measure of damages when the correction would not involve unreasonable destruction of the work; and the cost of repairs would not be grossly disproportionate to the results to be obtained. Moreover, the Supreme Court suggested the question whether the repairs would result in disproportionate economic waste, thus making the “costs” measure inapplicable, was one of fact.

Affirmed.

      Whether appellees could pursue simultaneously the theory of an express warranty and an implied warranty as to fitness is not before us. See: Carter v. Quick, 263 Ark. 202, 563 S.W. 2d 461 (1978).

      In Dixon v. Ledbetter, 262 Ark. 758, 561 S.W. 2d 294 (1978), the Supreme Court emphasized that a building contractor must use reasonable judgment in his construction activities and may be expected to give warning to the owner if he is aware of any possible defects.


text:
    Robert J. BROWN, Trustee in Bankruptcy for INTERNATIONAL FRANCHISOR’S, INC. et al v. Don PHILLIPS et al
    CA 80-174
    606 S.W. 2d 85
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      Robert J. Brown, P.A., by: Robert J. Brown, for appellant.

      Davidson, Plastiras, Horne, Hollingworth & Arnold, Ltd., by: Michael 0. Parker; Wallace, Hilburn, Clayton, May & Calhoon, Ltd, by: Charles E. Smith; E. Winton Mclnnis; Milas Hale; Jack Sims; Hugh Spinks; John B Thurman; Eichénbaum, Scott, Miller, Crockett, Darr & Hawk, P.A., by: Boyce E. Hawk, for appellees.
   George Howard, Jr., Judge.

This is an appeal by Robert J. Brown, Trustee in Bankruptcy for International Franchisor’s, Inc. and Paco’s Hacienda, Inc., from orders sustaining demurrers filed by appellees and overruling appellant’s motion for summary judgment in an action against the shareholders of International Franchisor’s, Inc. and Paco’s Hacienda, Inc., to recover $163,348.47.

The essential facts are:

Paco’s Hacienda, Inc. and International Franchisor’s, Inc. are corporations organized under the laws of the State of Arkansas. In fact, Paco is a subsidiary of International.

On January 20, 1973, Paco purchased the assets and trade name of Arkansas Catering Service, Inc., an Arkansas corporation. On February 16, 1973, the corporate charter of Paco was revoked for nonpayment of franchise tax; and on February 21, 1975, the corporate charter of International was revoked for nonpayment of franchise tax.

Subsequent to February 21, 1975, Arkansas Catering Service, Inc. incurred an indebtedness in the sum of $163,-348.47. On March 18, 1977, creditors of Paco and International initiated involuntary bankruptcy proceedings against these corporations.

On October 2, 1978, the trustee in bankruptcy instituted an action against the shareholders of International contending that they were personally liable for the debts of International, Paco and Arkansas Catering Service.

Appellant also alleged in his complaint that Arkansas Leasing Company was a partnership existing between shareholders, Walter O’Neal and Don Phillips; that the partnership removed assets belonging to Paco to Kansas City, Kansas, and sold them to Real Equities, Inc. of Kansas City, Kansas; and that Arkansas Leasing Company should be required to render an accounting.

The appellees, consisting of approximately 48 individuals, either filed answers, demurrers, amended answers or motions for summary judgment.

Pursuant to the demurrers and motions for. summary judgment, the trial court entered the following orders on September 17, 1979, and October 16, 1979:

“The demurrers and motions for summary judgment filed on behalf of all parties who had no relationship to the corporations in question either as a stockholder, officer or director after February 21, 1975, are sustained and said parties are dismissed from this lawsuit.
“The Court further finds as to the other parties herein who were officers and/or board members that the plaintiff has ten days from the date of this Order to plead, further and state a cause of action with respect to these parties.”
“That the plaintiff s Motion for Summary Judgment is hereby overruled.
“That the various defendants’ motions to dismiss plaintiffs complaint without prejudice is hereby overruled.
“In conformity with this Court’s Order by Special Judge Riffel, signed September 17, 1979, it is hereby held that plaintiffs complaint fails to state sufficient facts to constitute a cause of action.
“Plaintiff is hereby granted ten (10) days in which to file an Amended Complaint alleging sufficient facts upon which relief can be granted.
“A trial of this matter is set for May 5, 1980.”
“1. Robert J. Brown, Trustee in bankruptcy, plaintiff, appeals from the provisions of the second and fourth paragraphs ... of the order of September 17, 1979 ... and from the provisions of paragraphs three and four of the order of October 16, 1979

In Coffelt v. Gordon, 238 Ark. 974, 385 S.W. 2d 939 (1965), the Arkansas Supreme Court made the following pertinent observation:

“. . . [U]nder our settled rule ... an order which merely sustains a demurrer, without dismissing the complaint, is not a final appealable order. ...”

In Bawcom v. Allis-Chalmers, 256 Ark. 569, 508 S.W. 2d 741 (1974), the Arkansas Supreme Court also commented:

“The denial of [a] motion for summary judgment, being merely interlocutory, is not a final order and, therefore is not reviewable on appeal.”

The trial court, in sustaining the demurrers in the two orders set forth gave the plaintiff ten days in which to plead further and a trial was scheduled for May 5, 1980. The court did not dismiss the plaintiffs complaint. It is clear under Bawcom and Coffelt that as far as these orders dealt with the demurrers and plaintiff s motion for summary judgment, these orders were not appealable, and, accordingly, the appeal is dismissed.

While paragraph 2 of the order of September 17, 1979, involving demurrers and motions for summary judgment on behalf of “all parties who had no relationship to the corporations in question either as a stockholder, officer or director after February 21, 1975, are sustained and said parties are dismissed from this lawsuit” is final and appealable, we are unable to review this matter inasmuch as the order does not identify persons affected, nor is it indicated in what way appellant has been prejudiced by the trial court’s ruling. Consequently, we reverse and remand to the trial court for further proceedings not inconsistent with this observation.

Appeal dismissed, except the case is reversed and remanded as to the dismissal of appellant’s complaint to “all parties who had no relationship to the corporations in question either as a stockholder, officer or director after February 21, 1975.”


author: David Newbern, Judge.

text:
    Walter PALMER and Odie F. PALMER v. INTERMED, INC.
    CA 80-170
    606 S.W. 2d 87
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      T rant ham & Lingle, by: John R. Lingle, for appellants.

      Cathey, Goodwin, Hamilton & Moore, by: Ray A. Goodwin, for appellee.
   David Newbern, Judge.

The trial court directed a verdict in favor of the defendant at the end of the appellant’s presentation of evidence. The appellants ask that the directed verdict be reversed because either there was sufficient direct evidence of negligence, or res ipsa loquitur applied and the appellee should have been required to go forward with evidence it was not negligent. We hold that the appellants’ evidence was insufficient to establish their case or make res ipsa loquitur applicable, and thus we affirm.

The appellants presented a number of witnesses who were friends of their family who had visited the appellant, Odie Palmer, in a nursing home operated by the appellee. All of them seemed to be aware that an accident had occurred while Mrs. Palmer was a patient in the nursing home, but none of them presented any testimony as to how the accident occurred. The testimony of an orthopedic surgeon was sufficient to establish that sometime around February 23, 1975, Mrs. Palmer sustained a broken hip. Mrs. Palmer’s family doctor also testified, but neither physician gave 'any evidence as to the manner in which the break was sustained. Mr. Palmer testified that on February 23, 1975, Mrs. Palmer was a patient as the Golden Years Nursing Home operated by the appellee. He attempted to testify as to what some unknown persons to whom he referred as “they” had told him about how the break occurred. Objection to that testimony was properly sustained, and that is not an issue on this appeal. Mr. Palmer obviously had no personal knowledge as to how Mrs. Palmer’s injuries occurred.

The various other witnesses who testified were asked whether the bed upon which they had observed Mrs. Palmer at the nursing home was equipped with side rails. Most of them could say only that on the dates they visited rails were not raised. One witness, Ruth Short, was specific in her recollection that the bed was not equipped with side rails, but her visit to Mrs. Palmer occurred two or three weeks before the injury occurred. Mr. Palmer testified that he had visited Mrs. Palmer 2 or 3 days before she was injured. He said “I don’t think” there were rails on the bed, at least, he said, they “certainly wasn’t up.”

The court took judicial notice of a regulation of the Arkansas State Board of Health which states: “Double bed rails shall be provided for bed patients and disoriented patients.” Although the abstract provided by the appellant does not make it clear, we assume for purposes of this appeal the regulation was in effect on the date in question and was applicable to the appellee’s nursing home.

At the close of the appellant’s evidence, the appellee moved for a directed verdict. After considerable discussion between counsel and the court, the court said it could not permit the jury to speculate or resort to conjecture, and the motion was granted.

1. Direct evidence of negligence

The appellants contend there was sufficient evidence of negligence to go to the jury because of testimony showing violation of a nursing home regulation. The difficulty with that argument is that there is no showing that the violation existed on the date the injury occurred or that there was any connection between the two. As the appellee points out, we have absolutely no evidence in this record whether the injury occurred in the room occupied by Mrs. Palmer, in a bathroom, or hallway, or even in the building occupied by the nursing home. Negligence without a showing that it caused the injury complained of is not actionable.

2. Res ipsa loquitur.

The appellants contend their case was sufficiently established because the doctrine of res ipsa loquitur applies. They cite no cases in conjunction with this argument, but refer only to a legal encyclopedia provision to the effect that a plaintiff who seeks to apply the doctrine is not required to produce evidence excluding all possible causes other than the defendant’s negligence. While that statement may or may not be correct, a plaintiff seeking to take advantage of the doctrine must do more than show the injury could have occurred as a result of the defendant’s negligence. In Dollins v. Hartford Accident & Indemnity Company, 252 Ark. 13, 477 S.W. 2d 179 (1972), our supreme court dealt with with doctrine in a case similar to this one. An injury had occurred to a patient in a hospital. There was evidence the patient was found at the foot of her hospital bed in her injured condition. There was also evidence that she was attempting to get from her bed to a bathroom, and that the side railings on her bed were raised to prevent her from falling. The appellant, who was the husband of the victim in that case, argued that the patient, the safety restraints and the nurse on duty were all instrumentalities under the control of the hospital, and thus the doctrine of res ipsa loquitur applied. The supreme court affirmed the granting of a directed verdict for the defendant saying the doctrine did not apply. In its opinion, the court discussed Prosser, Law of Torts, § 39 (4th ed., 1971), in which it is made clear that:

Before res ipsa loquitur can be applied, there must first be an inference that someone must have been negligent and then the burden of proof is upon the plaintiff to show that the negligence was that of the defendant and to trace the injury to a cause of specific instrumentality for which the defendant was responsible or show that he was responsible for all reasonable probable causes. [252 Ark. at 17]

The appellant’s argument in Dollins was, as it is here, that the patient was so much under the control of the hospital that she became the “instrumentality” used by the hospital to cause injury. The supreme court declined to accept that argument because it found the victim had been able when she was discovered in her injured condition to explain why she had left her bed. Unlike the victim there, testimony here showed Mrs. Palmer was at the time of her injury and remains unable to speak as a result of the stroke which originally disabled her. Thus, there is a distinction between the cases. We do not, however, find that distinction to be controlling because the appellants have presented no evidence whatever as to the manner in which the injury occurred, and no evidence of the degree of contractual or actual control exercised by the appellee. As the supreme court pointed out in the Dollins case, the application of res ipsa loquitur should be limited to situations in which the defendant has available to it evidence of the true cause of the injury and that evidence is not available to the plaintiff. The defendant here offered to put the nursing home administrator on the witness stand for examination by the plaintiff s counsel at the time the motion for directed verdict was made. The offer was declined.

Absent some showing that the injury was caused by an instrumentality under the appellee’s control or that it would not have occurred if those having control of the instrumentality had used proper care, we cannot apply the res ipsa loquitur doctrine.

There is a small, but growing body of law, which was ignored by the parties in this case, dealing with application of res ipsa loquitur to hospitals and nursing homes. The doctrine has been applied when “unexplainable” injuries occur in hospitals. McDonald v. Foster Memorial Hospital, 170 Cal. App. 2d 85, 338 P. 2d 607 (1959); Maki v. Murray Hospital, 91 Mont. 251 7 P. 2d 228 (1932). Cf., Martin v. Aetna Cas. & Surety Co., 239 Ark. 95, 387 S.W. 2d 334 (1965); and Gallachicco v. State, 43 N.Y.S. 2d 439 (Ct. Cl. 1943), in which hospital instrumentalities (wheelchair in Martin and elevator in Gallachicco) caused injury. See also, Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916), which applied the doctrine on the basis of evidence tending to show injury could not have resulted other than from the hospital’s negligence. See also, Annot., 9 A.L.R. 3d 1315 (1966 and Supp. 1980).

The doctrine has not, however, been applied to nursing homes. See,e.g., Ericson v. Petersen, 116 Cal. App. 2d 106, 253 P. 2d 99 (1953) (cause said to have been known by victim); Ivy Manor Nursing Home, Inc. v. Brown, 488 P. 2d 246 (Colo. App. 1971) (no evidence showing cause must have been defendant’s negligence); Tait v. Western World Ins. Co., 220 So. 2d 226 (La. App. 1969), cert. den., 254 La. 137, 222 So. 2d 884 (1969) (mere fact of fall does not infer negligence); Brown v. University Nursing Home, Inc., 496 S.W. 2d 503 (Tenn. App. 1972) (fall may occur absent anyone’s negligence, and doctrine not applicable where specific negligence also alleged). See also, Annot., 83 A.L.R. 3d 871 (1978). The distinction between the duty of care required of hospitals and that of nursing homes, generally, has been explained in at least one case as arising from the degree of control exercised by hospitals over physicians and hospital facilities and employees, assuming the same degree of control is not exercised by nursing homes. Stogsdill v. Manor Convalescent Home, Inc., 35 Ill. App. 3d 634, 343 N.E. 2d 589 (1976). While we question that assumption, this is not a case in which we should examine it, given the dearth of evidence of the nursing home operation or the incident in question here.

Affirmed.


author: John A. Fogleman, Chief Justice.

text:
    ENTERPRISE SALES CO., INC. v. Joann BARHAM

    80-130
    605 S.W. 2d 458
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      Clark & McNeil, for appellant.

      Guy Jones, Jr., for appellee.

      Upon motion and suggestion of the death of Bob Barham, after this appeal had been docketed, Joann Barham was substituted as appellee herein.

   John A. Fogleman, Chief Justice.

This is the second appeal in this case. On June 19, 1978, in an unpublished opinion, we affirmed a judgment against appellant on condition that appellee enter a remittitur of the amount of the judgment in excess of $1,500; otherwise, a new trial was ordered. No remittitur was entered. On retrial of this action by appellee against appellant, a building contractor, for damages allegedly resulting from appellant’s failure to properly construct a house it sold appellee, the jury returned a verdict of $6,000 for appellee. We again find error in the proceedings.

Robert O. Barham, and his wife, Joann, entered into a contract to purchase a house from Enterprise Sales Company, Inc., after the latter had commenced construction. Tbe purchase price was $32,000. Barham and his wife moved into the house on April 15, 1973. The subdivision in which the house was located was not on a city sewer system, so the house was served with a septic tank for sewage disposal. In August, 1973, the Barhams began having trouble with the septic tank system. After some efforts by Enterprise to alleviate the condition, the Barhams brought suit for damages against Enterprise, Lee Shock and The Action Company, Inc. The two corporations were family corporations owned by Lee Shock, his wife and their children. The Barhams alleged that the house was not completed in the manner agreed upon and that the nature of the soil where the house was located was unsuitable for a septic system. A verdict for Lee Shock and the Action Company was directed in the first trial.

Robert O. Barham testified as to the actual value of the house on April 15, 1973- At the conclusion of his testimony, appellant moved to strike that part of it relating to the value of the property in its condition when he moved into it. Denial of the motion was error. It is true that the opinion of the owner is generally admissible on the question of value of the real estate, regardless of his knowledge of market values. Arkansas State Highway Com’n v. Maus, 245 Ark. 357, 432 S.W. 2d 478; Arkansas State Highway Com’n v. Drennen, 241 Ark. 94, 406 S.W. 2d 327; Arkansas State Highway Com’n v. Fowler, 240 Ark. 595, 401 S.W. 2d 1. That testimony must, however, be based upon facts that support his opinion. Arkansas State Highway Com’n. v. Geeslin, 247 Ark. 547, 446 S.W. 2d 245. Value cannot be based upon a figure plucked out of the air. Arkansas State Highway Com’n. v. Stanley, 234 Ark. 428, 353 S.W. 2d 173. A landowner’s opinion testimony as to the value of his property is not substantial if it is shown that he has no satisfactory explanation for it. Arkansas State Highway Com’n. v. Darr, 246 Ark. 204, 437 S.W. 2d 463; Arkansas State Highway Com’n. v. Duff, 246 Ark. 922, 440 S.W. 2d 563; Arkansas Stat Highway Com’n. v. Cook, 257 Ark. 98, 514 S.W. 2d 215.

Barham expressed the opinion that the value of the property, due to its condition when he moved in, was “[s]ixteen to eighteen thousand dollars.” He admitted that he had previously expressed the opinion that the property had been worth $21,000. When asked to explain the difference, he attributed it to the passage of time with the accompanying depreciation and the fact that the problem of which he had complained had existed for two, three or four years. Neither the passage of time nor depreciation was a factor of consideration of fixing the value of the property when the house was new.

Later Barham said that he had testified that the property had a value of sixteen, seventeen or eighteen thousand dollars, “somewhere along in there,” “16, 17, 18 or 17, 18, 19, I don’t recall but in that neighborhood.” He then said that his opinion as to value was based upon his experience. He said his approach in fixing value was the going rate for building a house, saying that it was $6 or $8 per square foot for the garage, which contained 410 square feet, and $16 to $20 for the house itself, in which there were 1,815 to 1,820 square feet of heated space. He could not remember which figures he had used, but said that he had written them down on a piece of paper, which had probably been burned. Thus, the basic value could have been anywhere between $31,260 and $39,280. The most lucid explanation Barham gave for his reduction of the value was a consideration of his own “off-the-top-of-my-head estimate” of what it would cost him to put the house in a livable condition and what it would cost him to get on the city sewer system once it was available. The trial judge, after the motion to strike had been denied, admonished the jury to accept Barham’s opinion with full knowledge of the fact that it was not based on a factual situation or any testimony the jury had heard. The Court’s evaluation of the testimony should have been used as a basis for striking it, and an admonition to “accept it for what evidential value it may be to you, if any” was not a cure for the error.

If Barham’s testimony is eliminated, there was no substantial evidence to support the verdict for a recovery of $6,000 which the jury returned. The trial judge refused to admit the proffered testimony of Frank Shaw, who had estimated the market value of the property, “with no sewage facilities available.” The court sustained appellant’s objection on the ground that the presumption that no septic tank was available was erroneous and without factual basis. We feel that there was evidence that there was, in effect, no workable septic tank. City sewer was not available and the question whether viable alternatives were available, was, to say the least, a disputed fact. Yet, the opinion of Shaw, a real estate broker, on the question of value was not included in the abstract of the proffer, and the jury did not consider his testimony, so we cannot in determining whether the evidentiary support for its verdict was substantial.

Appellee contends that appellant’s arguments as to the trial court’s refusal to strike the testimony of Barham and to the sufficiency of evidence to support the verdict are forclosed by the law of the case established by the first appeal, citing authorities holding that the rule makes the decision on the first appeal conclusive of any arguments that were or could have been made on that appeal. See, e.g., Woodard v. Blythe, 249 Ark. 793, 462 S.W. 2d 205. It is rather difficult to see how our holding on the first appeal that Barham failed to prove the amount of damages attributable to the defective septic tank, the sole basis upon which the case had been submitted to the jury, requires us to now hold that the evidence presented on the second trial is sufficient. The rule might possibly have had some application on the matter of striking Mr. Barham’s testimony if his testimony on retrial was the same as it had been on the first trial. It could not have been. Barham, as heretofore pointed out, gave a lower valuation to the property because of additional depreciation and the passage of time since the first trial. Obviously, the law of the case could not have any application here.

The court instructed the jury that, if the contract between the parties included a feasible and workable sewer system and if soil conditions prevented its installation, the verdict should be for the amount of the difference between the contract price and the fair market value of the property. Appellant contends that there was no competent evidence tending to show the sewer system could not be replaced or repaired and that there was no testimony to support a determination of fair market value. We have expressed our opinion on the latter question. But we do not agree that there was no evidence that soil conditions had prevented installation of a feasible and workable sewer system. Don Wood, formerly field inspector for the Arkansas Ecology and Pollution Control Commission, said that this was not a sewage disposal system that he would have approved in the vicinity where the Barham house was built in 1973. Wood said that he had told Lee Shock, the principal owner of appellant, before the house was built, that a septic tank would not work. He stated that he had the authority to override the action of any county health department. Jane Dunn, Faulkner County Sanitation Officer since August, 1975, testified that she did not know of any commercial aeration or leaching system that would have been acceptable for the Barham house in 1973. She said that she was not aware of any time when any alternate system would have been available, acceptable and approved for the Barham house. She said that the sand trap and aeration systems, both with chlorination, had been approvable alternatives to a septic tank system since 1974, when she was first employed by the Health Department, and that a sand filter system might have been approved as an alternative by the District Engineer, in August, 1974. She said that in April, 1977, she had written a letter to Barham stating that the only suitable alternative to the septic system was an aeration system, chlorination unit and drainage through'existing field lines with a possible relief line to a storm ditch for peak usage or for extremely wet weather. We cannot say that there was no substantial evidence that soil conditions had prevented the installation of a feasible and workable sewer system, even though there was testimony that alternative sewage disposal systems could have been installed.

Appellant says, however, that Barham was required to move reasonably to mitigate his damages, by installing a feasible and workable alternative sewage disposal system. The court did give an instruction that Barham had a duty to take such reasonable measures as might be necessary to mitigate or reduce his damages and that if it found that the system could have been repaired or replaced, Barham’s damages would be fixed at an amount that would reasonably compensate him for doing so.

The only evidence abstracted that would give any indication of the cost of any alternative to the septic tank system, even assuming that an alternative was available in August 1973, when the trouble with the sewage disposal system first developed, was that of Lee Shock. He said that the cost of a sand trap system is about the same as a typical septic system. According to him, the cost of a regular septic system in 1973 was $600 and he thought the cost of a sand trap system would have been about $100 more, or $700.

The court’s instruction was basically correct. See Lisko v. Uhren, 134 Ark. 430, 204 S.W. 101. This principle falls under the doctrine of avoidable consequences. Under this doctrine, one is required only to take such steps as may be taken at small expense or with reasonable exertion, and where the expense is so large as to make the requirement impractical, the doctrine has no application. Reasonable diligence and ordinary care are all that are required. Lake Village Implement Company, Inc. v. Cox, 252 Ark. 224, 478 S.W. 2d 36.

It seems to us, however, that the jury found that a workable alternative was not available when the damage occurred. At any rate, the question of reasonableness of the expenditure or efforts to prevent the damage would ordinarily be a question for the jury.

Appellee sought to introduce the report of a percolation test performed by Billy P. Tyler on July, 15, 1974. The trial judge admitted this into evidence, over appellant’s objection, upon a showing that the results of such tests were records required to be kept by Mrs. Dunn’s office in the normal course of business. There was no error in the admission of this report over the very general objection made. Appellant now argues that the report was hearsay and not a business record in the sense of Ark. Stat. Ann. § 28-1001, Rule 803 (6) (Repl. 1979). But neither of these objections was made in the trial court. Error may not be predicated on a ruling admitting evidence in the absence of a specific ground of objection, if the specific ground was not apparent from the context. Ark. Stat. Ann. § 28-1001, Rule 103 (a)(1) (Repl. 1979). We cannot say that the ground appellant now argues was apparent in this case where the application of Rule 803 (6) could have been involved.

Appellant sought to cross-examine Barham about a $10,000 loan secured by a mortgage on the property he had obtained long after the alleged damage when there was an outstanding balance of $28,000 on the debt secured by a first mortgage. Appellant also sought to introduce documentary evidence to show these facts in order to contradict the testimony of Barham. In view of our treatment of the testimony of Barham, this question is not likely to arise on retrial.

Appellant also contends that the trial court erred in excluding estimony that Lee Shock made a bona fide offer to purchase the property from Barham for the same price that Barham paid for it, several months after his purchase. The trial judge excluded the testimony, ruling that the offer by Shock was, due to inflation, too remote in time and because the property might have had some “special meritorious value” to Barham that would justify his refusal of the offer. We think that this line of inquiry would have been proper in view of the fact that Barham had always contended that the property he purchased was worth not more than $21,000. The exact time of Shock’s offer was not disclosed by the abstract of the record, but it does not seem to have been too remote, in view of the fact that Barham had testified that the property had steadily depreciated in value. If the property had some special value to Barham that would have justified his refusal of Shock’s offer, he would have had ample opportunity to explain.

Appellee argues that the question addressed to Barham and the anticipated testimony of Shock were properly excluded under Ark. Stat. Ann. § 28-1001, Rule 408 (Repl. 1979) because they constituted evidence of an offer to compromise. There was actually nothing to show that the offer was made as an attempt to compromise the dispute, or in compromise negotiations. The question which appellant addressed to Barham was admissible, not as evidence of an offer to compromise, but as tending to contradict his testimony and going to his credibility. See Missouri Pac. Transportation Co. v. Norwood, 192 Ark. 170, 90 S.W. 2d 480. See also, McClintock v. Lankford, 145 Ark. 254, 224 S.W. 488. A refhsal of Shock’s offer could certainly be taken as conduct inconsistent with his testimony. In this respect, it is somewhat different from an offer made by Barham or from a refusal by Shock to accept an offer by Barham. The question would definitely not have been permissible if it had been asked for the purpose of showing the value of the property. See Arkansas Highway Com’n. v. Elliott, 234 Ark. 619, 353 S.W. 2d 526.

On cross-appeal, appellee raises two questions. It is first argued that the trial court erred in striking appellee’s claim for fraud and deceit. None of Barham’s pleadings are abstracted by either party. We find no specific evidence, either proffered or excluded on this point, even though appellee did supplement appellant’s abstract. At the conclusion of the evidence on behalf of Barham, the trial court granted a motion to strike all allegations of the complaint relating to fraud and deceit. On the record abstracted, we cannot say this was error. The law of the case does apply on this issue. No jury instruction pertaining to this issue was given in the first trial. The only instruction offered on the question of fraud was Barham’s request for an instruction which would have permitted the allowance of punitive damages if the jury found there had been fraud on the part of appellant. The propriety of the refusal of this instruction and the consequent elimination of the question of fraud was not raised by appellee on the first appeal.

We agree with appellant that on the record presented, the proffered testimony of Frank Shaw was admissible.

As we have pointed out there is evidence that a suitable substitute for the septic system could have been installed for $700 and appellant offered to confess judgment for that amount. There is testimony by Barham that it was, or would be, necesary for him to spend $914 for yard work and finishing work, $2.27 for repair of a distribution box, $16.48 for a relief line, $18.54 for a distribution box, $8.44 for four T-joints. $125.75 for unstopping the sewer, and $100 for digging a relief line and for topsoil, because of appellant’s failure to properly perform the contract. These expenditures total $1,-085.48. If within 17 days appellee will enter a remittitur of the amount of the judgment in excess of $1,785.48, the judgment as so reduced, will be affirmed. Otherwise, a new trial will be ordered.

Hickman, J., would reverse and remand.


author: John A. Fogleman, Chief Justice. Richard L. Mays, Justice,

text:
    Jimmy Dale PLY v. STATE of Arkansas
    CR 80-65
    606 S.W. 2d 556
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980
    Rehearing denied November 24, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Jimmy Dale Ply, the appellant, was charged on June 11, 1979, with two counts of theft of property under Ark. Stat. Ann. § 41-2203 (Supp. 1979). By an amended information he was charged under the Habitual Offender Act [Ark. Stat. Ann. § 41-1001 et seq (Repl. 1977)]. He was found guilty and sentenced on one count of theft of property. The jury found him guilty of having been convicted of four or more felonies, and fixed his punishment at 15 years in the Department of Correction. Sentence was pronounced according to the verdict. He relies on the following points for reversal.

I
THE TRIAL COURT ERRED IN DENYING APPELLANT HIS STATUTORY RIGHT TO A JURY TRIAL ON THE HABITUAL CRIMINAL CHARGE.
II
THE TRIAL COURT ERRED IN CONSIDERING DEFECTIVE EVIDENCE OF PRIOR CONVICTIONS OF APPELLANT IN THE HABITUAL CRIMINAL PROCEEDING FOR PURPOSES OF SENTENCE ENHANCEMENT.
III
THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OF ACQUITTAL FOR APPELLANT FOR INSUBSTANTIAL PROOF OF A VALUE OF THE ALLEGED STOLEN PROPERTY.

We find no reversible error and affirm.

I

At the sentencing phase of a bifurcated trial, the state presented evidence of appellant’s prior convictions. The trial judge gave the following instruction to the jury:

THE COURT: Ladies and gentlemen of the jury, I will submit to you for your consideration, one verdict. As has been indicated by counsel, you will be assessing punishment under this verdict. I will read to you now the verdict form, “We, the jury, find the defendant, Jimmy Dale Ply has been previously convicted or found guilty of four or more felonies and fix his punishment on the finding of guilt for the crime of Theft of Property as follows: (1) A sentence of 10 to 20 years imprisonment in the Arkansas Department of Correction, OR (2) A fine of not to exceed $10,000 OR (3) Both a sentence of 10 to 20 years imprisonment in the Arkansas Department of Correction, and a fine not to exceed $10,000.00. In assessing the punishment, if it is your decision that the defendant in this case should be sentenced to a term of imprisonment, you will fill in the blank provided by the verdict form with the appropriate number of years imprisonment; likewise if you should decide that a fine should be assessed in this case, there is a blank provided for a fine, up to $10,000.00, and you will fill in the appropriate sum. On the third alternative on the verdict form is both a sentence and a fine. Once again, a blank is provided, and you will fill in the blank as to the appropriate amount of fine, if that is your judgment. You will select either one, two or three. The verdict will be signed by the foreman.

The trial judge then asked counsel, “Is there anything else gentlemen before the jury retires?” Both the deputy prosecuting attorney and Ply’s attorney answered in the negative. The verdict form was in accordance with the instruction. The jury returned the following verdict:

VERDICT
We, the jury find the defendant Jimmy Dale Ply has previously been convicted or found guilty of _felonies, and we fix his punishment on the find-(4 or more) ing of guilt for the crime of Theft of Property, as follows:
(1) A sentence of Fifteen years imprisonment in the Arkansas Department of Correction,
OR
(2) A fine of-Dollars, (not to exceed $10,000.00)
OR
(3) Both a sentence of-(10 years to 20 years)
years imprisonment in the Arkansas Department of of Correction and a fine of Dollars ($10,000.00)
Kenneth Dearmore Foreman

After the verdict was returned into open court, the trial judge asked the jury if it was the verdict of each of them. After the foreman answered that it was, the judge asked if either side wished to poll the jury. Both attorneys answered in the negative. Before pronouncing sentence, the judge asked Ply if he had anything to say before sentencing and received a negative response. The judge then pronounced sentence according to the verdict.

No objection was made to the court’s instruction, the form of verdict, the verdict, the sentence or the pronouncement of sentence pursuant to the verdict. Appellant did not submit or request an instruction as to the verdict of the form of Verdict and did not request a particular form or ask that either the court’s instruction or proposed verdict form be changed, as he should have done under these circumstances. See Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590.

Appellant argues here that the trial court made a finding for the jury by instructing them to find appellant guilty of four or more felonies and to fix his punishment based on that finding, and thereby denied him a trial by jury on the issue of his status as a habitual offender, as required by Ark. Stat. Ann. § 41-1005 (2) and (3). Appellant argues that, in effect, the trial judge directed a verdict that appellant had at least four prior felony convictions. Appellant raised the question he now asserts for the first time on appeal, so we will not consider it. One who does not object to an instruction, stating distinctly the matter to which be objects and the ground for his objection, cannot raise an issue as to its correctness on appeal. Cassidy v. State, 254 Ark. 814, 496 S.W. 2d 376; Randle v. State, 245 Ark. 653, 434 S.W. 2d 294.

Appellant argues that because the verdict form submitted and the instruction given were not in compliance with the statute, there is a presumption of prejudice, citing Williams v. State, 264 Ark. 77, 568 S.W. 2d 30. Apparently, appellant feels that there was no necessity for him to object in this case. We do not agree. In Williams, there was no chance for appellant to object to omissions of the jury foreman and of the bailiff during the jury’s deliberation or even to know about them. Here, appellant had ample opportunity to object both to the instruction given and to the verdict form. We pointed out in Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3, that a defendant could raise an objection to the verdict form at the time the verdict is rendered, at the time of sentencing or by motion for new trial. We made it quite clear in Gooodwin that we would not thereafter consider an assertion of error in a verdict form that had not been raised in the trial court, in some manner, without adequate reason for the failure being shown.

Appellant argues that the court’s action here constitutes plain error which is to be noticed even though not “assigned.” This statement seems to be an assertion that this court should conduct a search for error. That concept is erroneous. Even in capital cases, where we must review all errors prejudicial to the rights of an appellant, we do not consider a possible error unless an objection has been made in the trial court. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73; Neal v. State, 259 Ark. 27, 531 S.W. 2d 17, reh. den. 429 U.S. 966, 97 S. Ct. 397, 50 L. Ed. 2d 335 (1976). In the latter case, this rule was applied in treating an argument That the trial judge had, by an instruction, usurped the prerogative of the jury. It is true that we will consider the question of sufficiency of the evidence to support a verdict, in criminal cases, without any question having been raised in the trial court.'We will do that in this case, when we reach appellant’s point II. But we have no plain error rule. We only consider a trial court’s action on appellate review without an objection having been made in the trial court when the error is so great that the trial court was under a duty to correct it immediately and no objection of admonition could have undone the damage or erased the effect of the error from the minds of the jurors. Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223. In this case, the error could have easily been corrected, upon a timely objection, without the jurors ever having been aware of it.

In advancing his arguments on this point, appellant puts considerable reliance upon Klimas v. Mabry, 559 F. 2d 842 (8 Cir.), reh. den. 603 F. 2d 158 (1979), 3 judges dissenting. We do not see how that case is applicable here, even if it were authoritative rather than persuasive. We may well have some disagreement with the opinion of the Eighth Circuit Court of Appeals as may be readily seen from Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202, cert. den. 429 U.S. 846, 97 S. Ct. 128, 50 L. Ed. 2d 117 (1976). Furthermore, the decision of the Eighth Circuit is far from final. It was reversed in Mabry v. Klimas, _ U.S __, 100 S. Ct. 2755, 65 L. Ed. 2d 897 (1980). By order filed August 29, 1980, the Court of Appeals has vacated its original opinion and remanded the case to the District Court for the Eastern District of Arkansas with directions to dismiss the petition for habeas corpus by Klimas to give the State of Arkansas “the initial opportunity to pass upon and correct alleged violations of federal rights.”

Appellant also cites Cox v. Hutto, 589 F. 2d 394 (8 Cir.), 619 F. 2d 731 (1980). We have not accepted those decisions as authoritative, particularly in view of the reliance placed upon Klimas v. Mabry, supra, on the second appeal.

II

Appellant does not challenge the evidence of two prior convictions, one for burglary and another for aiding and abetting grand larceny. He does assert that the state failed to meet its burden of proving the other four. Three of these alleged convictions were recited in a single judgment against Ply and one Jackie Loftis on plea of-guilty. This judgment was introduced into evidence. The othér was for breaking and entering and for theft, evidenced by judgment entered in case No. CR 76-8 on September 16, 1976.

Appellant contends that the evidence of these convictions was improperly admitted because the judgments do not reflect that he was represented by counsel. This argument is based upon the caption in the first judgment, which indicated, that the defendants were Jimmy Dale Ply and Jackie Loftis.. The caption also included the following in the space provided for the case number: ' 1 ■ ' ' ■ . '

1778 — Grand Larceny
1779 — Burglary
1780 — Grand Larceny
1781 — Grand Larceny
1782 — Burglary
1783 — Grand Larceny

Six copies of the judgment were filed, each one bearing the certificate of the Clerk of the Circuit Court of Marion County verifying that it was the judgment in one of the above cases. Accompanying each such certified copy of the judgment, with one exception, was an information charging a different crime or combination of crimes. Each information bore a certificate of the clerk, identifying it by case number, so that each copy of the judgment followed a copy of an information identifying the case number as the same as that shown in the certificate to the judgment following it, with the exception of No. 1781, for which no judgment is separately certified.

Appellant made no objection to the judgment in case No. 1778, but objected to the others on the ground that they showed no record on a judgment or of counsel. Appellant makes some arguments here that cannot, by any stretch of the imagination, be taken to come within the scope of the objection made.

Although the allegedly “combined” judgment in question names both Ply and Loftis as defendants, the judgment recites that the defendant appeared in person and by his attorney, James Johnson, that the defendant entered a plea of guilty to the charge of “Grand Larceny 1778, 1780, 1781, 1783; Burglary 1779, 1782” as charged by “the information filed herein” [Emphasis ours.] and that upon “the defendant’s plea of guilty he should be adjudged guilty of the crime of Burglary and Grand Larceny.” [Emphasis ours.] The punishment of the defendant was fixed at confinement in the Department of Correction for three years “on each charge, said sentences to run concurrently with each other.” Nowhere in the body of the judgment does it appear that Ply was the defendant named. Reference to the judgment in case No. 1777, which appellant does not question, supplies this deficiency. Bobby Paxton and Jimmy Dale Ply were named as codefendants in that judgment. It contains the following recital: “This sentence of each of the defendants to run concurrent with their sentences in 1784, 1778, 1779, 1780, 1781, 1782, 1783.” Unquestionably, this shows that the “combined” judgment was against appellant. The record showed that Bobby Paxton was a defendant in case No. 1784, but that Ply was not. The judgment in No. 1784 recited that it was to run concurrently with Bobby Paxton’s sentence in No. 1777.

We must agree with appellant that there is not an adequate showing of a judgment of conviction in case No. 1781. Otherwise, there was sufficient evidence to justify a finding that appellant has been found guilty of either burglary or grand larceny in cases Nos. 1778, 1779, 1780, 1782, and 1783. Under our present statute a'previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. Ark. Stat. Ann. § 41-1003 (Repl. 1977). The state concedes, however, that Nos. 1778 and 1779 amount to only one prior conviction under Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977).

Appellant also argues that neither of these judgments adequately shows that he was represented by counsel. The “combined” judgment shows that “the defendant..... appears by his attorney James Johnson.” This was certainly sufficient evidence of representation by counsel in the absence of some showing to the contrary. See Fike v. State, 255 Ark. 956, 504 S.W. 2d 363. Appellant also contends that the judgment showing a prior conviction of breaking and entering and theft on September 16, 1976, failed to show that he was represented by counsel, because the caption lists appellant and two others as defendants, while the judgment recites that “the defendant appears in person and by their attorney, Joe Villines, Jr. and Gordon Webb.” This is certainly a prima facie showing that three defendants were represented by two attorneys. If this were not so, appellant could easily have shown that it was not.

Appellant did not question two prior convictions. There was sufficient evidence of a conviction on September 16, 197.6. The evidence with reference to the combined judgment was sufficient basis for finding at least three additional convictions.

III

Appellant points out that theft of property is a felony only if the value of the property stolen is more than $100. Ark. Stat. Ann. § 4l-2203(2)(b) (i) (Supp. 1979). The property involved here was a coin collection belonging to Jack Glass. The only testimony as to the value of the collection was that of Glass. Glass said that the collection consisted of seven or eight hundred coins, which he had started collecting during the time he was in the navy — 1956 to I960. He said that he was a knowledgeable novice but not a professional collector and that he subscribed to magazines and had been reading on the subject of coins for 20 years. He stated that he had spent “many, many hours” in coin shops and at coin shows in Michigan. He said that he had bought some of the coins at coin stores and coins shows in folders describing them and showing their prices.

Glass “approximated” the total value at $750. Soon after the theft he had made a list of the missing coins for the police and for an insurance claim and had fixed the value from old receipts, retained coin holders and cancelled checks and by looking through books, magazines and digests. This list was admitted into evidence without objection. According to Glass, at least 17 of the coins were silver dollars. Eight were Eisenhower dollars. The state offered a newspaper ad by a coin dealer as an exhibit to Glass’ testimony. It was received without any objection. According to that ad, a minimum of $9 would be paid for any silver dollar, regardless of its condition. Glass stated that he had paid $19.50 for a 1921 Peace dollar. He said that the face value of the American coins on page one of his list was $31.58, but using prices quoted in the newspaper ad, the minimum value of these coins would be $167. Included were a 1943 steel penny, eight Mercury dimes dated around 1920, some Liberty Head quarters dated about 1900, and a large United States penny dated around 1846. Glass said that the dimes could bring from 65 cents to $85 each, depending upon the condition of the coin. The list Glass made included eight Kennedy half-dollars and nine half-dollars minted before 1964, for which the newspaper ad quoted a price of $4.25 each. He said the face value of American coins that were still missing was $40. Glass also enumerated several foreign coins he had bought from coin dealers. The total of the prices he said he had paid for them was $76.75.

This testimony by the owner was sufficient to establish a value of more than $100 for the coins taken from Glass. See Bailey v. State, 266 Ark. 260, 583 S.W. 2d 62. Glass was the owner and had some familiarity with values. It was not necessary that Glass should have bought and sold coins up to the day of trial in order to be competent to testify. Smith v. Library Board, 58 Minn. 108, 59 N.W. 979 (1894).

It is true that a great deal of hearsay was introduced through Glass such as, a newspaper advertisement by a dealer in coins. In fact, his own testimony was based to a considerable extent upon hearsay. For example, he had referred to coin folders showing prices and to coin catalogues and books in arriving at values. We have held that on direct examination, a witness expressing an opinion as to value should not be allowed on direct examination to repeat hearsay statements or to testify about other matters inadmissible under the rules of evidence. Arkansas State Highway Com’n. v. Russell, 240 Ark. 21, 398 S.W. 2d 201; Arkansas State Highway Com’n. v. Sargent, 241 Ark. 783, 410 S.W. 2d 381. Even so, we stated in Russell that an owner testifying as to value, might rely, wholly or in part, upon hearsay. Even if we assumed that the evidence adduced here as to value was entirely hearsay, it was admitted without objection. Flearsay, admitted without objection, may properly be considered. Arkansas State Highway Com’n. v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107; Brown v. Windland, 249 Ark. 6, 457 S.W. 2d 840; 2 Wharton’s Criminal Evidence 22, § 273. See also, Spear v. State, 184 Ark. 1047, 44 S.W. 2d 663. For this reason, if for no other, we are unable to agree with appellant that the testimony of Glass was not substantial evidence of a value of more than $100. See Boone v. State, 264 Ark. 169, 568 S.W. 2d 229.

The judgment is affirmed.

Mays, J., dissents.

Richard L. Mays, Justice,

dissenting. Because of a lack of an objection by appellant’s attorney in the court below, the majority fails to reach the issue of whether the trial court denied appellant his statutory right to a jury trial on the habitual criminal charge. In justification, the majority basically asserts that this court should only consider an alleged error in the trial court without an objection when the damage from the error could not have been undone even had an objection been made. I would hold that some errors are so alien to certain basic concepts of fair play and render the trial procedure so fundamentally deficient that they must be reached whether or not an objection has been raised at the trial court level. See Klimas v. Mabry, 599 F. 2d 842 (8th Cir. 1979), reversed on other grounds, _ U.S. _, 100 S. Ct. 2755, 65 L. E. 2d 897 (1980). I view the denial of a right to a jury trial which has been statutorily preserved to be such an error.

Under our state law, the same jury which determines the guilt of an accused must determine his status as an habitual offender before imposing punishment. See Ark. Stat. Ann. § 41-1005 (Repl. 1977). The defendant has a statutory right to be judged by a jury of his peers. This right is not of recent origin but is indigenous to our judicial heritage. Such an important right should not be usurped by an unwary judge or lost because of an absent-minded attorney. It should be preserved by a vigilant judicial structure cognizant of the significance of the jury trial right to the integrity of our system of justice.

In addition to ignoring the abrogation of the jury trial right on the issue of appellant’s habitual criminal status, the majority strains to find sufficient evidence to support a finding that appellant had four or more prior felony convictions. Irrespective of the majority’s effort, however, the state’s proof concerning appellant’s prior felony convictions remains a confusing mixture of indecipherable judgments, duplications of judgments, and informations. The state not only has the burden of proving the requisite prior felony convictions but that a defendant was represented by counsel at the time of the convictions. McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). That burden was most definitely not satisfied in this case. If “burden of proof’ means anything, it means that no court should be required to probe uncommonly rare intellectual depths to extract a quantum of less than convincing evidence from a bedrock of ambiguities to justify sustaining a conviction.

I would reverse the judgment below.


author: George Rose Smith, Justice. John F. Stroud, Justice,

text:
    Billy HOLDEN v. Paul VENT
    80-185
    605 S.W. 2d 463
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      Macom, Moorhead & Green, by: J. W. Green, Jr., for appellant.

      Robertson & Rhodes, for appellee.
   George Rose Smith, Justice.

At the school election on March 13, 1979, the parties to this election contest, Billy Holden, and Paul Vent, were two of four candidates for school director in Carlisle School District No. 3. A month before the election Vent asked Holden to withdraw, because Holden resided just outside the district, in an adjoining Humnoke school district. Instead of withdrawing, Holden obtained an agreement, approved by the County Board of Education on February 23, by which the Humnoke district purported to transfer 80 acres, on which the Holden house is situated, to the Carlisle district in exchange for a transfer of 40 acres by the Carlisle district.

Holden was certified as the winner of the election, with Vent running fourth. Vent, however, filed this action asking for a new election because Holden was not a qualified candidate. The circuit court sustained the contest and ordered a new election, but the judgment recites that Holden is now a qualified elector of the Carlisle district. An appeal and cross appeal bring both points up for review. The Court of Appeals certified the case to this court.

The statute requires a school director to be a bona fide resident and qualified elector of the district which he serves. Ark. Stat. Ann. § 80-504 (Repl. 1980). The attempted exchange of territory between the two districts was void, because a county board of education cannot transfer territory from one district to another without the consent of a majority of the electors in each district. § 80-404; Genoa Central Sch. Dist. No. 1 v. Board of Education of Miller County, 263 Ark. 393, 565 S.W. 2d 129 (1978). Hence Holden was not and is not a resident of the Carlisle district. It is immaterial that Holden’s wife has served in school elections in the Carlisle district or that his children have been picked up by the Carlisle school buses and have attended school in Carlisle. The controlling fact in this election contest is the place of Holden’s residence.

Affirmed on direct appeal and reversed on cross appeal.

Purtle and Stroud, JJ., concur in part and dissent in part.

John F. Stroud, Justice,

concurring in part, dissenting in part. The majority opinion holds the exchange of territory between the two districts was void because the consent of a majority of the electors in each district was not obtained as required by Ark. Stat. Ann. § 80-404 (Repl. 1980). This court mandated that result when it decided Genoa Central School Dist. No. 1 v. Board of Education of Miller County, 263 Ark. 393, 565 S.W. 2d 129 (1978) by stating:

... we'hold that the'proper procedure to be followed'in all cases involving boundary changes made for the purpose of transferring territory from one district to another, as here, is governed by § 80-404 . . . (Emphasis added.)

That interpretation virtually eliminated the plain effect of § 80-412 without declaring the statute unconstitutional. In Genoa Central, supra, this court restricted the application of § 80-412 “. . . to correct district boundary lines so that they would conform to certain geographic lines such as rivers, creeks, or highways.” The statute clearly contains no such limitation:

Change of district boundary lines by school directors. — Upon the application of the school directors of any school district desiring an adjustment or change of boundary line or lines between their district and adjoining district, the county board of education shall, within ten [10] days after the receipt of such application call a joint meeting of themselves and of the school directors of the districts concerned, for the purpose of adjusting and changing boundary lines. After a hearing at which the chairman of the county board shall preside, the county board of education shall issue an order changing the boundary line or lines between the district concerned. Such changes or adjustments [are] to be made in accordance with the approval of the majority of the members of the school boards of the districts concerned. In case the school directors are unable to agree on the proposed change in boundary line or lines, the county board shall adjust and fix such boundary lines in accordance with their best judgment or shall rule that the boundaries remain unchanged.

In this case the procedure outlined in § 80-412 was follows and land which included appellant’s residence was validly transferred by the Lonoke County Board of Education from Humnoke School District No. 5 to Carlisle School District No. 3 in exchange for other land transferred to the Humnoke district. The transfer was not made 45 days prior to the school election, so appellant’s name was properly left off the ballot as required by Ark. Stat. Ann. § 80-308 (Repl. 1980), but in my opinion, appellant is now a qualified elector of the Carlisle district. I would overrule the Genoa Central decision insofar as it is inconsistent with this dissenting opinion. I would, therefore, affirm the trial court and deny the cross-appeal.

Purtle, J., joins in this opinion.


author: George Rose Smith, Justice.

text:
    Shirley Marie CURRY v. STATE of Arkansas
    CR 80-119 & CR 80-186
    605 S.W. 2d 748
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Eewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a capital felony murder case in which the appellant was sentenced to life imprisonment without parole. On such an appeal it is the appellant’s duty to abstract all objections that were decided adversely to her in the trial court. Supreme Court and Court of Appeals Rule 11 (f). The case has not yet been fully briefed in this court.

The Attorney General has filed a motion asserting that the appellant has not in fact abstracted all such objections and asking that she be required to do so. The Attorney General has also, in a separate motion not directly related to this case, asked the court to amend Rule 11 (f) by adding a requirement that the appellant submit with the abstract a list of all such objections, with page references to the record and to the abstract. The State Appellate Defender resists the suggested amendment to the rule and also insists that any defects in his abstract of the record in this case are minor omissions which the Attorney General should be expected to supply in a supplemental abstract. Inasmuch as similar motions by the Attorney General, asking that an appellant be required to file a supplemental abstract, are becoming increasingly frequent, we have thought it best to express our position in an opinion, for the guidance not only of these attorneys but also of other lawyers appearing for an appellant in appeals from a sentence of death or life imprisonment.

Rule 11 (f) itself is essentially simple and self-explanatory. Its second paragraph is pertinent here:

When the sentence is death or life, imprisonment, the Court must review all errors prejudicial to the appellant. Act 333 of 1971; Ark. Stat. Ann. § 43-2725 [Repl. 1977]. To make that review possible the appellant must abstract all objections that were decided adversely to him in the trial court, together with such parts of the record as are needed for an understanding of the objection. The Attorney General will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

The section of the statutes cited in the rule has now been superseded by Criminal Procedure Rule 36.24 (1976), which is to the same effect.

Although the paragraph just quoted puts upon the appellant the primary burden of abstracting all objections decided adversely to him, the Attorney General shares responsibility for compliance. In practical effect, that means that both counsel for the appellant and counsel for the State must examine the record page by page to be certain that all the objections are brought to the court’s attention. Indeed, for many years the members of this court made that examination in capital cases, before the rule was amended to read as it does now.

The position argued by the Appellate Defender, that “minor omissions” in his abstract should be supplied by the Attorney General, proposes a standard too vague to be workable. When is an omission “minor”? Any such standard would inevitably give rise to disputes between counsel similar to that now before us. We reject that argument.

Neither do we find it necessary to amend the wording of the rule. Counsel for the appellant must in every case examine each page of the record as he prepares his abstract. He thus has the opportunity to note and to abstract all the objections decided adversely to the appellant, with page references to the record that will ordinarily be in their proper numerical sequence. There should be no need for the suggested separate list of objections, because counsel for the State can readily check the accuracy of the abstract against the record itself,.both being in the same numerical order. Of course, there .may be parts of the record that( are not pertinent to the appeal and need not be abstracted, such as the voir dire examination of each juror or pretrial rulings or testimony not relevant on appeal. If, however, objections were made during such parts of the proceeding, those objections should be abstracted in sequence as they appear in the record. And if, as sometimes happens, counsel for the appellant deems it best not to abstract the record exactly according to the sequence of its numbered pages, appropriate explanations should be inserted for the benefit of the Attorney General and the court.

The Attorney General’s motion for a supplemental abstract makes a sufficient showing of omissions and is granted. His motion for an amendment to the rule is denied.


author: Frank Holt, Justice.

text:
    In Re: Jimmy EATON and Evans BENTON v. SUPREME COURT OF ARKANSAS COMMITTEE ON PROFESSIONAL CONDUCT
    80-4
    607 S.W. 2d 55
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      Eaton & Benton and Robert J. Brown, for petitioners.

      Philip E. Dixon, for respondents.
   Frank Holt, Justice.

Petitioners, attorneys practicing law in North little Rock, appeal from the decision of the respondents’ issuance of a private reprimand as a result of the attorneys’ actions in advertising their firm.

In March, 1979, the petitioners contracted with Val-Pak Advertising to include an advertisement of their firm in a mail-out packet with other advertisements to a target area of 10,000 households in the North Little Rock area. Their advertisements was so mailed in June. Petitioners subsequently received a letter from the respondent Committee advising a complaint had been made to it in regard to this advertisement. Petitioners responded to this letter as requested. They received another letter from the Committee, advising them their advertisement was in violation of the Code of Professional Responsibility, DR 2-101 (B). This letter contained the reprimand. A third letter from the Committee, in response to a request by petitioners for a more specific statement, again advised the contents of the ad and the method of making it known to the public violated the purpose and intent of DR 2-101 (B). Petitioners requested a hearing, which was held in November. In December, 1979, the Committee notified the petitioners that they had voted to sustain the letter of reprimand for violation of DR 2-101 (B). The letter advised that the violation of this section also encompassed DR 2-101 (A), 2-103 (A); the letter also cited 2-101 (B) (25) specifically and added DR 2-104 (A). As we understand from oral argument, the latter rule is no longer involved.

Our rule 2-101 (B) permits advertising “[i]n order to facilitate the process of informed selection of a lawyer by potential consumers of legal services.” This section incorporates by reference 2-101 (A) which probhitis “the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory- or unfair statement or claim.” Also 2-103 is included by reference. 2-103 (A) prohibits a lawyer, except as provided in 2-103 (B), from recommending employment of himself or firm to a non-lawyer who has not sought his advice concerning a lawyer.

The petitioners rely heavily on Bates v. State Bar of Arizona, 433 U.S. 350 (1977), to support their contention the advertisement itself was permissible. The following advertisement was considered by the court in Bates'.

Here the advertisement is:

The mailing packet or envelope reflects:

Although the advertisements are in some respect similar, the one in Bates listed specific services and their corresponding fees. Here the only fee listed was a $10 fee for an initial consultation, which is permissible under DR 2-101 (B) (20). However, the petitioners then propounded a series of questions on the need for legal services on certain subjects. They contend the queries were merely designed to indicate the areas of law in which they would consult. Also the last query, “Other legal problems?”, coupled with the phrase, “There is no time or subject limitation,” could indicate to the lay person that these petitioners were competent to consult and advise on any legal problem. We fail to see how this broad sweep, without any indication of charges, is sufficient information to assist one in need of legal services to make an informed selection.

We also agree with the Committee that the manner of dissemination is impermissible. This advertisement was included in a packet with other advertisements, but all three being coupons for discounts at local businesses. The mail-out packet included a coupon for french fries with the purchase of a hamburger, coupons for discounts on meals at local restaurants, a discount from a “Figure Salon and Health Spa” on a one month membership, a discount on tune-ups and auto repairs, a gift certificate from a local shoe store and one from a fabric store, both requiring purchases, a coupon from a travel company offering a free item, a coupon offering a special on seamless guttering, an advertisement from Val Pale itself, and an advertisement for a free home appraisal and a “garage sale” sign from a real estate company. The front of the envelope, previously reproduced, had printed on it "Valuable coupons from local businesses.” The mail-out advertisement certainly could be understood by a recipient as appearing to be a discount offer and a solicitation of legal services.

Furthermore, it was in violation of the rule requiring such advertisements to be informative in ntaure, 2-101 (B), as noted above. Its primary purpose was not to inform the consumer to facilitate an informed choice by allowing fee comparison, but rather to urge a group of specific potential consumers to seek petitioners’ services, and therefore, this constituted solicitation. See In the Matter of Koffler, 420 N.Y.S. 2d 560 (1979). The advertisement in Bates listed fees for certain services, which is permissible under our rules. DR 2-101 (B) (25). In Bates, Justice Blackmun, writing for the court, acknowledged that the “heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed.” The court held that advertising by attorneys is subject to limitations, which preclude false, deceptive or misleading advertising; there may also be reasonable restrictions on the time, place and manner of advertising. The advertisement here did not meet the stated purpose of advertising legal services, in that there was no indication to the consumer how these petitioners were competitive other than their initial consultation fee. The contract between petitioners and Val Pak provided that no competitors’ advertisements would be sent in the same mailing packet without the permission of the petitioners. As the Committee stated: “This provision clearly shows that the intent of the ad was to solicit customers for the individual advertisers, not to provide potential consumers of legal services with a means of making an informed selection of an attorney. It also suggests that the ad is merely a lure to get customers into the advertiser’s place of business.”

We have considered the cases cited by petitioners in their brief which are concerned with advertisements and offers by mail. In re Primus, 436 U.S. 412 (1978); Kentucky Bar Ass’n v. Stuart, 568 S.W. 2d 933 (Ky. 1978); and In the Matter of Koffler, supra. In Primus, also relied on heavily by petitioners, the court specifically found the letter there was not “facially misleading” and that it imparted information allowing the recipient to make an informed decision about whether or not to authorize the litigation in question. The court there again stated that a state “is free to fashion reasonable restrictions with Respect to the time, place, and manner of solicitation by members of its Bar . . . The State’s special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.” Here we find that a combination of the content and the manner of dissemination in this case constitutes a violation of our rules.

We next consider petitioners’ contention that there was a lack of notice and therefore due process in that the petitioners were not advised of the particulars of their violation, only being notified that the advertisement violated DR 2-101 (B). This rules incorporates by reference 2-101 (A) and 2-103.

We need not reach the sufficiency of notice issue since the petitioners have failed to include in the record and to abstract the letter sent to them in August advising them that a complaint had been lodged against them with the Committee alleging violation of the ethical rules governing advertising by lawyers and, further, insufficiently abstracting the September letter sent by the Committee. See Manes v. M.O.V.E., Inc., et al, 261 Ark. 793, 552 S.W. 2d 211 (1977); and Rules of the Supreme Court, Rule 9.

Even if we were to consider this issue on its merits, we do not find reversible error since petitioners have not demonstrated in what manner they have been prejudiced. They contend that, had they known in more detail the charges and the name of the complainant, they could have introduced evidence from satisfied clients and through cross-examination shown that this advertisement was not misleading. However, in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), the Supreme Court held:

[Ajppellant errs in assuming that the constitutional validity of the judgment below depends on proof that his conduct constituted actual overreaching or inflicted some specific injury on [the clients solicited]. His assumption flows from the premise that nothing less than actual proved harm to the solicited individual would be a sufficiently important state interest to justify disciplining the attorney who solicits employment in person for pecuniary gain.
Appellant’s argument misconceives the nature of the State’s interest. The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs . . .

Although the case here did not involve person to person solicitation as occurred in Ohralik, we find the above language to be applicable.

Furthermore, there is no requirement that the original complaint filed against an attorney be furnished him, as petitioners contend. Neither the rules nor case law so requires. Rule III, relied on by petitioners, makes it the duty of the Executive Secretary of the Committee to assist a complainant in preparing a detailed complaint in affidavit form. This rule then provides the Executive Secretary shall furnish a copy of the formal complaint to the attorney complained against. However, here the Committee had before it the advertisement which formed the basis of the complaint and thus had independent knowledge of the alleged misconduct. Rule IV provides that the Committee shall investigate complaints as to which any member has information and shall give the attorney an opportunity to explain or refute the charge. In Weems v. Sup. Ct. Comm. on Prof. Conduct, 257 Ark. 673, 523 S.W. 2d 900 (1975), we rejected an argument that Rule IV requires an affidavit of complaint or a statement that a member of the Committee had information. We held an affidavit is not required before the Committee may investigate and a statement of the source of information is not required.

Finally, we find no violation of the First Amendment to the United States Constitution nor to Article 2, § 6, of the Arkansas Constitution, as petitioners urge. The Supreme Court, in Bates, specifically allowed the states to regulate the manner, time and place of advertising. This right was affirmed in Ohralik-.

... A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation . . . While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests.

Further, this court was well aware of federal and state constitutional requirements when it adopted the disciplinary rules.

Affirmed.