author: Tom Glaze, Justice.

text:
    SHELTER MUTUAL INSURANCE COMPANY v. Rick BOUGH
    91-278
    834 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Roy & Lambert, by: James M. Roy, Jr., for appellant.

      Odom & Elliott, by: Don R. Elliott, Jr., for appellee.
   Tom Glaze, Justice.

This insurance case arose from an automobile accident that occurred on February 22, 1989, and requires interpretation of the Arkansas Underinsured Motorist Act of 1987, Ark. Code Ann. § 23-89-209 (1987). In this respect, we recently considered this Act involving almost identical circumstances in Shelter Mutual Ins. Co. v. Irvin, 309 Ark. 331, 831 S.W.2d 135 (1992).

Rick Bough was driving a vehicle owned by his mother and step-father, Nancy and Robert King, when the vehicle collided with a car owned and operated by Patrick Coif. Bough incurred $38,531.92 in medical expenses as a result of the collision. Coifs insurance carrier, State Farm, paid its policy limits of $25,000 to Bough, and in addition, Bough received $11,960 under the medical pay and wage-loss provisions of his parents’ no-fault coverage with Shelter Mutual Insurance company. Upon receiving the $25,000 amount, Bough released both Coif and his carrier from all liability. He did not use any of the $25,000 to reimburse Shelter for the medical and wage loss benefits he previously received.

Bough subsequently sued Shelter for underinsured benefits, alleging Shelter had failed to make such coverage available to the Kings as named insured as required by Act 335 of 1987, codified as Ark. Code Ann. § 23-89-209 (1987). Shelter denied liability asserting that it had made underinsured coverage available to the Kings and that it had no duty to provide such coverage to Rick Bough since he was not the named insured. Shelter also defended, stating that, even if it had otherwise been liable to Bough for underinsured benefits, Shelter was relieved from paying such benefits because Bough had violated the cooperation and subrogation terms of Shelter’s policy by settling with Coif and State Farm without notice to Shelter. Both parties moved for directed verdicts, and the trial court denied Shelter’s request, but granted Bough’s, holding that Shelter had failed to make underinsured benefits available as required by Act 335. The court further held that such benefits would be implied as a matter of law. The case then went to the jury on the issue of damages only, and the jury found Bough had sustained a loss in the sum of $85,000.

The trial court found the parties had stipulated and agreed that the $25,000 received from State Farm would be deducted from the $85,000 award, leaving $60,000 in damages still owed. The court then held Shelter was entitled to subrogation and a judgment in the amount of $11,960, which represented the medical and wage losses Shelter previously paid Bough. After Shelter received credit and set off for these amounts, Bough received a judgment of $48,040, which amount was covered as underinsured benefits to be paid by Shelter under the Kings’ policy.

On appeal, Shelter argues the same three issues it raised below, and Bough cross-appeals, claiming Shelter was not entitled to the $11,960 reimbursement amount. We affirm on all points.

Shelter first asserts that the trial court erred in finding as a matter of law that Shelter failed to make underinsured benefits coverage available to the Kings and wrongly implied such coverage to Bough. The pertinent facts here for deciding this issue are essentially the same as those examined in the recent case of Shelter Mutual Ins. Co. v. Irvin, 309 Ark. 331, 831 S.W.2d 135. The parties agree there was no provision for underinsured motorist coverage in the King’s policy, and Shelter nor its agents or employees gave any oral notice to the Kings that such coverage was available. Shelter never sent any written materials describing or offering the coverage to the Kings. Also, as was the case in Irvin, Shelter’s application forms signed by the insureds here contained the term “underinsured motorist” where optional coverages and their limits were listed; but again, no evidence reflects this coverage was ever mentioned to or discussed with the Kings.

In Irvin, we held Act 335 mandated insurers to offer underinsured coverage, and such mandate was not met by an insurer’s mere printing of the term “underinsured motorist” on an application without explanation or mention of it to the insured. Our decision in Irvin controls here, and we sustain the trial court’s ruling that found Shelter had violated its statutory duty and implied underinsured benefits, covering the $48,040 judgment awarded Bough.

Before leaving Shelter’s first point, we note Shelter’s attempt to distinguish the present case from Irvin, claiming that it had furnished two applications to the Kings since Act 335 went into effect and that the Kings had rejected underinsured coverage. Although the applications referred to by Shelter were signed by the Kings after Act 335 became effective, those forms differed little from any others previously given the Kings for signature — the term “underinsured motorist” was printed under the list of coverages, the boxes beside the coverage remained blank and there is no evidence Shelter or its agent offered such coverage.

Shelter also argues that, even if underinsured coverage should be implied to the Kings, no such benefits were due Bough because he was not a named insured as that term is used in Act 335. The Kings are the named insureds under their policy, but Bough’s operation of the King vehicle on the date of the accident was covered. Under the Kings’ policy, an “insured” includes the named insureds (Kings), and their relatives (Bough) and any other person using the automobile of its use was within the scope of the named insured’s permission. In addition, the policy reflects the named insureds and family members residing in the household are entitled to medical and hospital benefits. Shelter offers no citation of authority or convincing argument regarding why, if underinsured coverage is implied to the Kings, Bough should not receive such benefits under the terms of Kings’ policy.

Shelter next argues Bough forfeited entitlement to any underinsured coverage by settling with State Farm and Coif without notice to Shelter, thus violating the subrogation clause in the Kings’ policy. Shelter also points out that the policy provides that “No action will lie against [Shelter] under any coverage unless the insured shall have fully complied with all the terms of this policy,” and that “A person claiming coverage ... must also cooperate with [Shelter] and assist... in any manner concerning a claim or suit.” By Bough’s releasing State Farm and Coif, Shelter claims Bough violated the foregoing policy provisions, making him ineligible for underinsured benefits.

In support of its argument, Shelter cites two Arkansas cases. First, in Southern Farm Bureau Cas. Ins. Co. v. Jackson, 262 Ark. 152, 555 S.W.2d 4 (1977), the insured knowingly and willfully misrepresented that she was the driver of the insured vehicle at the time of the accident. This court held the insured could not enforce the insured’s policy against the insurer, because the insured violated the policy’s cooperation clause. Of course, the present case involves no material misrepresentation affecting Shelter’s ability to defend under its policy.

The second case cited by Shelter, Shipley v. Northwestern Mutual, 244 Ark. 1159, 428 S.W.2d 268 (1968), is also different from the one before us. There, the insureds received payment for their medical claims from the tortfeasor, but later sued their insurance company, Northwestern, for the same medical bills. The Shipley court affirmed the trial court’s directed verdict for the insurance company, finding that the insureds had been paid for the medical expenses and the insurance company could not be obligated to pay them. This court further stated that to hold that Northwestern was obligated to pay the insureds would have ignored the well-established rule of subrogation — to prevent the insured from recovering twice for one harm.

Here, Bough did not recover twice for one harm. Instead, he settled for policy limits ($25,000) which Coif had with State Farm, and then filed suit against Shelter to recover the remaining amount of damages he might be owed. Of course, that is the purpose of the underinsured motorist coverage — to supplement the recovery from the tortfeasor who had insufficient insurance to pay for all the damages the injured party sustained.

Shelter cites the general rule that, where the insured forecloses the insurer’s right to subrogation by releasing the tortfeasor, the insurer is released from its liability to pay benefits. Couch on Insurance 2d (Rev ed) § 61:196, p. 258 (1983). It ignores, however, the following sentence in the same text that states the court may inquire as to whether the release prejudiced the insurance company. Id.; see also Hoel v. Crum & Forster Ins. Co., 366 N.E.2d 901 (Ill. App. Ct. 1977); MacInnis v. Aetna Life & Cas. Co., 526 N.E.2d 1255 (Mass. 1988). Here, Bough made Shelter aware that Coifs insurance carrier had paid policy limits, and he further informed Shelter of his attempt without success to find other assets to help compensate Bough for the damages he sustained. Because it denied any underinsured motorist coverage under the Kings’ policy, Shelter took no position when notified as to how Bough should pursue his case. In any event, Shelter failed to show that Bough’s settlement with and release of Coif and State Farm prejudiced its right of subrogation or possible recovery from Coif or any other potentially liable party. To the contrary, the record reflects Bough got all that was possible when he received the policy limit of $25,000 from State Farm, and Shelter benefited by being able to deduct that amount from the jury verdict rendered against Shelter.

Bough’s cross-appeal also concerns the issue of subrogation. He argues that the trial court erred in finding that Shelter was entitled to subrogation rights against Bough for the $11,960 amount Shelter paid in no-fault medical and wage loss benefits. His argument is based in part on Ark. Code Ann. § 23-89-207(a) (1991), which provides as follows:

(a) Whenever a recipient of § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as defined. (Emphasis added.)

Subsections 23-89-202(1) and (2) mentioned in § 23-89-207 are provisions that provide no-fault medical and hospital benefits and income disability benefits. And under the terms of § 23-89-207, Bough argues that Shelter is only entitled to set off its $11,960 in no-fault benefits from the tort recovery amount ($25,000) Bough received from State Farm, not from any underinsured motorist benefits, which are contractual in nature. Cf. Travelers Ins. v. Natl. Farmers Union, 252 Ark. 624, 480 S.W.2d 585 (1972). In addition. Bough cites cases from other jurisdictions that stand for the proposition that there is no right to subrogation against the insured upon the part of the insurer where the insured’s actual loss exceeds the amount recovered from both the insurer and the wrongdoer. In other words, Bough asserts that because he had not received the total amount of his damages from the tortfeasor, Coif, Shelter has no right of subrogation for the partial amount ($11,960) Shelter paid Bough for medical expenses and wage loss. See Hardware Dealers Mutual Fire Ins. Co. v.Ross, 262 N.E.2d 618 (Ill. 1970); Ortiz v. Great Southern Fire & Cas. Ins. Co., 597 S.W.2d 342 (Tex. 1980); Lyon v. Hartford Accident and Indemnity Co., 480 P.2d 739 (Utah 1971); Rimes v. State Farm Mutual Auto Ins. Co., 316 N.W.2d 348 (Wis. 1982); see also, 44 Am. Jur. 2d Insurance § 1846 (1982); Couch on Insurance 2d, (Rev ed) § 61:64 (1983); and G. Palmer, Law of Restitution, § 23.14 (1978).

Although we have no criticism of the cases cited by Bough, the rule limiting the insurer’s rights to subrogation in those cases is not applicable to the facts here. The equitable nature of subrogation is granted an insurer to prevent the insured from receiving a double recovery. Thus, while the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. That is the situation here.

Before Bough sued Shelter for underinsured benefits, Shelter had paid Bough $11,960 in no-fault benefits. At the time, Bough has incurred $38,531.92 in medical expenses and he had received only $25,000 from State Farm. As previously discussed, Bough prevailed in his suit for underinsured benefits, which assured Bough that he would receive full compensation for the $85,000 verdict the jury awarded him. Accordingly, the trial court gave Shelter a judgment for the $11,960 benefits Shelter previously paid Bough, and off set that amount against Bough’s damages. This offset, along with crediting the $25,000 amount paid Bough by State Farm against the $85,000 verdict, prevented Bough from receiving $96,960, or $11,960 more than the jury found his damages to be. Under the circumstances of this case, the trial court correctly permitted Shelter to assert its subrogation right.

In conclusion, we mention Bough’s reliance on Travelers Ins. v. Natl. Farmers Union, 252 Ark. 624, 480 S.W.2d 585. There, the insurer had paid the insured workers’ compensation benefits. The insurer, Travelers, later sought to assert its subrogation rights to recover such paid benefits from the insured’s policy amount of $ 10,000 in uninsured motorist benefits that the insured sought from another carrier, National Farmers Union. The parties stipulated at trial that the insured was entitled to recover a sum in excess of the $10,000 uninsured motorist coverage. This court held Travelers could assert its subrogation or lien rights in an insured’s tort recovery, but it did not allow the insurer to do so in an action where the insured sought uninsured benefits. In rejecting Travelers’ claim, this court discussed the specific language in the statute that permits a workers’ compensation carrier subrogation rights and an insured’s third-party tortfeasor action, but the court did not allow the carrier to assert its subrogation rights in the insured’s contractual action against an insurer which had issued to the insured a liability policy with uninsured benefits coverage.

The court in Travelers was not confronted with an insured, as here, who had obtained a tort recovery from the tortfeasor’s insurer, had been paid no-fault medical and wage loss benefits from his own insurer and then stood to accumulate double recovery for those no-fault benefits when he became fully compensated for his damages in a later action against his insurer for underinsured benefits. No such windfall or double recovery was involved in Travelers, and we do not read that decision to prevent an insurer from asserting the equitable principle of subrogation under circumstances as those existing here. Travelers simply is not controlling of the circumstances now before us.

For the above reasons, we affirm the trial court’s decision on both direct and cross-appeal.

       Shelter cites the district court’s decision of Edens v. Shelter, No. 89-5082, (W.D.Ark., Mar. 30, 1990), but that court did not actually reach the issue concerning whether so-called “non-named” insureds should benefit from coverage available to named insureds.

       In addition to his recovery attempt against Coif, Bough also sued another party, Robert Martin, who had operated a third car which barely missed the Bough-Coif collision. After notifying Shelter, Bough dismissed Martin because Martin had no insurance and no significant amount of assets.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Dawney R. SMITH v. STATE of Arkansas
    CR 91-289
    832 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

A Lafayette County jury convicted appellant of delivery of a controlled substance, and appellant was sentenced to 40 years imprisonment and a $1.00 fine. Appellant’s sole argument on appeal is that the trial court erred in accepting the jury verdict because a poll of the jury indicated that the verdict was not unanimous. We affirm without reaching the merits of appellant’s argument.

The factual proceedings giving rise to appellant’s argument occurred after the jury retired for deliberation. Approximately 20 minutes after retiring to deliberate, the jury returned to the courtroom. Frances Nicholas, the jury foreman, then questioned the trial judge about sentencing:

The question is if he were found guilty, and if the sentence, what would the sentence be if everyone on the jury say were in agreement that he should spend actual time of 10 years in prison? How would you determine that sentence?

The court responded by informing the jury that he could not offer instruction on sentencing beyond that contained in the written instructions previously delivered to the jury. The court had previously instructed the jury that if they found appellant guilty of delivery of a controlled substance, they could impose a prison sentence of not less than 10 years and no more than 40 years or life, and that no fine could exceed $25,000.

After the trial court refused to further instruct the jury on sentencing, the jury returned to the jury room and deliberated approximately 5 more minutes before returning to the courtroom. The foreman informed the trial court that the jury had reached a verdict, whereupon the court read the verdict form:

“We, the jury find Dawney Smith guilty of delivery of cocaine and fix the sentence at a term of 40 years in the Arkansas Department of Corrections, and a fine of $1.00[.]

The court then asked the foreman whether the verdict represented the verdict of each and every juror, and the foreman responded, “yes.” Counsel for appellant then requested that the jury be polled. After this request, the following exchange occurred between the trial judge and juror Arfell Neel:

THE COURT:
Now ladies and gentlemen of the jury, if you would listen to this question and answer me, I’m going to ask the question just one time, and then I’ll ask everybody for your answer. The question is, is this your individual verdict? Arfell Neel?
JUROR:
Yes, sir.
THE COURT:
Ms. Neel, is this your individual verdict?
JUROR:
Ten years. Ten years.
THE COURT:
You’re telling me this is not your verdict?
JUROR:
Yes, that’s my verdict.
THE COURT:
This is your individual verdict?
JUROR:
Um-hmm.

The trial court continued polling the remaining members of the jury, and at the conclusion of the poll the trial court asked, “Is there any reason known to anyone why sentencing shouldn’t be imposed at this time?”

The state responded, “Nothing from the State, Your Honor,” the defense did not respond. The trial court sentenced appellant to 40 years imprisonment, a fine of $1.00, and payment of court costs.

Appellant did not make a contemporaneous objection to the acceptance of the jury verdict. Rather, he raises his argument for the first time on appeal. This court has consistently refused to consider arguments on appeal in the absence of a specific, contemporaneous objection at trial. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); Smart v. State, 297 Ark. 324, 327, 761 S.W.2d 915, 916 (1988) (“If we undertook to answer arguments that were raised neither here nor in the trial court, the process of appellate review would doubtless collapse under its own weight. New principles of appeal and error are more widely followed or firmly entrenched than the rule that we do not address arguments not raised by the litigant.”) See also Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

As appellant failed to raise at trial his argument regarding the impropriety of the acceptance of the jury verdict, we refuse to consider the argument on appeal.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Michael Marvin LOY v. STATE of Arkansas
    CR 92-67
    832 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Terri Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sallings, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Michael Marvin Loy, appeals his conviction for solicitation to commit first-degree murder by use of a homemade bomb and his sentence to a term of forty-two years. He asserts as grounds that it was reversible error for the circuit court to admit into evidence 1) an audiotaped conversation between Loy and an informant, and 2) a video depiction of certain demonstrations and a simulated explosion of the bomb. We hold that neither point has merit, and we affirm.

On March 9, 1991, at about 3:00 p.m., an informant, Donald Hurt, advised the Garland County Sheriffs Office that earlier that day he had been offered $5,000 by Loy to kill Charles McCoy using a homemade bomb. The matter was assigned to Lieutenant Larry Selig at the sheriffs office, who asked Hurt to wear a body microphone and record a discussion of the planned murder with Loy. Hurt agreed to do so. On that same day at about 5:30 p.m., Hurt met with Loy wearing a body microphone at the Food-4Less parking lot in Hot Springs. The meeting was videotaped and observed by three members of the sheriffs department, including Lieutenant Selig. The body mike worn by Hurt allowed the conversation between Hurt and Loy to be monitored.

After the meeting, Hurt got out of the car carrying a paper sack, and Loy was arrested. Hurt then turned over the paper sack which contained the bomb to the sheriffs office. The bomb consisted of a glass jar, firecrackers, black gunpowder, and BB’s.

The sheriffs office next enlisted the assistance of the Air Force Base explosives squad to disarm the bomb. When the squad attempted this, however, the bomb detonated. The resulting debris was recovered and sent to the F.B.I. in Washington, D.C., which rebuilt a similar bomb and exploded it under controlled circumstances. The bomb and three demonstrations of how it worked were videotaped by the F.B.I.

Loy was charged with solicitation to commit murder and criminal possession of explosives, although the possession charge was subsequently nolle prossed by the State. Prior to trial, he moved to suppress the audiotape of the conversation between Hurt and himself and also the F.B.I. videotape of the explosion. A hearing was held on the motions on September 26, 1991, and Loy was unsuccessful on both scores. The tapes were admitted into evidence at the ensuing trial by jury on October 17, 1991, and Loy was found guilty as charged and sentenced to forty-two years imprisonment.

Loy first contends that the audiotaped conversation between Hurt and himself was inaudible in several places and consequently was inadmissible because it was misleading and untrustworthy. He argues in conjunction with this point that the untrustworthiness was further proved by the fact that the prosecution tried to introduce a transcript of the tape after the tape was played to the jury. The circuit court refused to admit the transcript into evidence.

We have held that tape recordings are admissible “unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy.” Hamm v. State, 301 Ark. 154, 157, 782 S.W.2d 577, 579 (1990); Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). We have also said that this is a matter within the trial court’s discretion, and we will not reverse absent an abuse of discretion. Id.

In this case, the circuit court heard the tape recording at the hearing on Loy’s motion to suppress and denied that motion. The tape was then played for the jury at trial. The prosecutor next attempted to introduce a transcript of the tape after the tape was played to facilitate the jury’s understanding, and the court refused to admit it.

Loy’s argument on appeal is premised largely on the colloquy that occurred between the prosecutor and Lieutenant Selig at trial outside of the presence of the jury:

PROSECUTOR: All right, Sir and I notice that tape is kind of inaudible in quite a few places.
SELIG: In spots it is, yes, it is, because of the rattling of the paper sacks.
PROSECUTOR: And with traffic passing by?
SELIG: That is correct.
PROSECUTOR: In your opinion, Officer Selig, would somebody be better able to understand the tape if they had that transcript with them?
SELIG: In my opinion they definitely would.

This colloquy and the prosecutor’s attempt to introduce the transcript are not sufficient, in and of themselves, to establish untrustworthiness of the entire tape. We do not agree that anytime a tape is inaudible in many places, this renders the intelligible portions of the tape inherently prejudicial and unreliable. The tape may still be probative on certain points. Nor can we agree that the prosecutor’s subsequent efforts to introduce the transcript of the tape nullifies the complete tape’s trustworthiness. The circuit court obviously did not concur that the tape was so deficient as to be of no assistance to the jury. Moreover, the court correctly allowed the tape to speak for itself without any enhancement by a subsequent introduction of the prosecutor’s transcript after the tape had been played. In sum, we do not hold that the circuit court abused its discretion on this point.

We likewise hold that the circuit court was on firm ground when it admitted the videotape of the simulated bomb explosion into evidence. Loy argues that the tape was irrelevant, prejudicial, and cumulative to the criminal offense of solicitation. The applicable statute reads:

(a) A person solicits the commission of an offense if, with the purpose of promoting or facilitating the commission of a specific offense, he commands, urges, or requests another person to engage in specific conduct which would:
(1) constitute that offense;
(2) constitute an attempt to commit that offense;
(3) cause the result specified by the definition of that offense; or
(4) establish the other person’s complicity in the commission or attempted commission of that offense.

Ark. Code Ann. § 5-3-301 (1987).

Relevant evidence is defined under the Rules of Evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401 (1992). What is relevant evidence and what is cumulative or prejudicial lies in the discretion of the trial judge, and we have so held many times regarding a variety of tangible evidence. See, e.g., Hughes v. State, 303 Ark. 340, 797 S.W.2d 419 (1990) (occult books and magazines); Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992) (photographs); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990) (crack cocaine); Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990) (photographs).

Here, we are dealing with a reenactment of bomb construction, demonstrations, and detonation. Based on the reenactment, special agent Thomas J. Mohnal of the F.B.I. concluded that the bomb was capable of killing a human being. He further confirmed that the F.B.I. bomb, though not identical, was substantially similar to the device given Hurt by Loy. That is all the law requires for an admissible reenactment of an original happening. See Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983).

Loy is correct that the crime charged was a solicitation offense, but it was solicitation to commit first degree murder. Accordingly, evidence of the instrumentality to be used in the murder is entirely relevant. It clearly evidences the purpose of the solicitation as well as the means that Loy promoted to perpetrate foul play. As such, the simulated bomb and the videotape depicting its detonation easily qualify as proof of a material fact under Rule 401. The circuit court was correct in receiving the videotape into evidence, and we will not disturb its decision.

Affirmed.


text:
    John Richard LUKACH, Jr. v. STATE of Arkansas
    CR 91-293
    834 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Larry W. Horton, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, John Richard Lukach, Jr., was convicted of raping a five year old girl and committing burglary and was sentenced to life imprisonment for rape and twenty years for burglary, to run consecutively. He appeals on several grounds, including the lack of sufficiency of the evidence and the failure of the circuit court to grant him a continuance to test certain blood, hair, and saliva samples and to investigate the whereabouts of a red truck with California license plates which his counsel asserts was seen on the morning of the crimes in the area. We affirm the convictions and sentences.

On the morning of June 8, 1991, at about 5:20 a.m., Rhonda Ivy, a resident of Jones Mill, was getting ready for work when she heard a noise in her child’s bedroom. She entered the bedroom and saw a man climbing through the window. She screamed, and the man ran away. The man, she said was wearing blue jeans and what sounded on the pavement like cowboy boots and was carrying either a shirt or a rag in his hand. At the ensuing trial, she positively identified Lukach as the man.

That same morning at about 6:45 a.m., the five-year-old daughter of Francis and JoAnn Kane came into their bedroom and said that a man had hurt her. Blood was running down her legs. When the parents surveyed the child’s bedroom, they discovered that the bed sheet was missing and that the mattress had a large spot on it which was subsequently identified as blood. A physician, Dr. Bruce White, later examined the victim. He found bruises on her face and multiple tears and lacerations to her vaginal area.

Mark Stroup, who lived behind Rhonda Ivy, heard her screams that morning. Before hearing Ivy’s screams, he saw Lukach park a gray pickup truck on the road some distance from his house. Lukach was not wearing a shirt but was wearing blue jeans and cowboy boots. Later, Stroup saw Lukach carrying a sheet with some “red stuff’ on it. When the police appeared, Lukach ran behind a house and escaped. Another witness, Timothy Jensen, was with Stroup and also saw Lukach. He confirmed that Lukach was wearing blue jeans and cowboy boots.

Lukach was next seen by Mark Stroup and others walking back to his gray pickup truck. He was now wearing cutoff blue jeans and no shirt. He told Hot Spring County Deputy Sheriff John Nooner that he was having trouble starting his truck, but when the deputy attempted to start it, the engine ignited immediately.

On June 10, 1991, Lukach was charged with the rape and burglary of the Kane home, and his jury trial was set for August 26, 1991. On June 17, 1991, a hearing was held on the State’s motion to take blood, hair, and saliva samples from Lukach, and the court granted the motion. On July 10, 1991, Lukach filed a Bill of Particulars and included in this discovery request a prayer for all information and documentation concerning scientific testing. No request for independent testing was made in the Bill of Particulars. Six days before trial on August 20, 1991, the State provided most of the discovery information, including the scientific testing to Lukach.

On August 23, 1991, counsel for Lukach moved for a continuance on grounds that he desired to perform independent testing of the samples evaluated by the State and needed additional time to do that and to investigate further a red truck with California plates which was said to be in the area of the crime. Lukach’s attorney included in the motion a statement that his prior commitments made it “extremely difficult to properly prepare for trial in such [a] short period of time.” The circuit court denied the motion for independent testing as untimely. The court did say that it would reserve ruling on the motion as it related to the red truck until it heard the testimony. There was no testimony about the red truck at trial, and no subsequent motion for a continuance was made by Lukach.

Lukach was tried during a period of two days and was convicted of both offenses and given consecutive sentences of life imprisonment for rape and twenty years for burglary. On September 5, 1991, he moved for a new trial, alleging that the Hot Spring County Sheriff’s office had received a scientific report on fibers removed from the victim’s blanket and sheet and from Lukach’s clothing during the second day of the trial which it did not make available to Lukach. The motion for new trial was denied based on lack of prejudice to the appellant.

I. SUFFICIENCY OF THE EVIDENCE

For his first point, Lukach argues that this is a circumstantial evidence case, and that the proof was insufficient for conviction. We do not agree.

The general rule with respect to the sufficiency of the evidence is that the evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).

To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the factfinder to determine. Id. In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is no less substantial because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

The evidence against Lukach in this case, albeit circumstantial, is more than sufficient to sustain the convictions. Rhonda Ivy, a neighbor of the victim, positively identified Lukach after he tried to climb through her child’s bedroom window on the morning of the Kane rape and burglary and described what clothes he was wearing.

Mark Stroup, who lived behind Ms. Ivy, also placed Lukach in the crime area and corroborated her description of what he was wearing. He described Lukach’s furtive actions and later saw him carrying a sheet with “red stuff’ on it. Timothy Jensen also identified Lukach and his clothing.

There was significant physical evidence connecting Lukach to the crimes. A pair of blue jeans and cowboy boots were recovered from the home of Lukach’s mother on June 8, 1991. A forensic serologist for the State Crime Lab, Jane Parsons, analyzed Lukach’s saliva and blood samples and determined that he was a type AB secretor, which she said was uncommon. The victim was a type A non-secretor. On the victim’s underpants, the serologist found stains corresponding to what an AB secretor would produce. Similar stains connecting an AB secretor were found on the victim’s blanket.

A second serologist, Lisa Calhoun, also from the State Crime Lab testified that she found eleven hairs on the victim’s bedsheet that were similar to the victim. She also found six pubic hairs similar to hairs taken from Lukach on the bedsheet, and eighteen hairs which she identified as cat hairs. Pubic hairs similar to those of Lukach were also found on the victim’s blanket. On Lukach’s blue jeans, she found one strand of hair similar to the victim’s and two hairs from a cat. The relevance of the cat hairs is Francis Kane testified that a cat slept with the victim.

All of the evidence pointed to the appellant as the assailant, and it was compelling. In light of this evidence, we can ascertain no other reasonable hypothesis consistent with the appellant’s innocence, and we affirm the circuit court’s ruling on sufficiency of the evidence.

II. CONTINUANCE

Lukach next contends that he was denied a fair trial because he was denied the right to a continuance for the purpose of doing independent testing on the blood, hair, and saliva samples. Lukach moved for a continuance on August 23, 1991, three days before trial and asked for a delay of not less than two weeks. He underscored two factors in his motion. The first was that he did not know what the State Crime Lab results were until six days before trial. The second was that his father did not agree to pay for the testing until the Crime Lab results were made available.

We agree with the circuit court that Lukach’s motion on independent testing was untimely under Ark. R. Crim. P. 17.1 (c). In his original request for discovery made on July 10, 1991, he did not ask to do scientific testing, although he was well aware that the State was testing hair, blood, and saliva samples because it had taken samples from him on June 17, 1991. When he had not received the state discovery, including the Crime Lab tests, within a reasonable period of time, he could have moved to compel discovery, which he did not do. He apparently made no effort to arrange for an expert to perform the tests prior to filing his motion though he knew trial was set for August 20, 1991. No reason is given for why Lukach’s father waited until three days before the trial to appear and agree to pay for the tests. Counsel for Lukach also admitted in his motion that he was busy during this period of time with “prior commitments.”

We have held that a defendant should have the opportunity to challenge conclusions drawn from tests undertaken by the State. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). A serious interest in scientific testing, however, must be voiced in timely fashion under Ark. R. Crim. P. 17.1(c) and before the eleventh hour. Here, Lukach showed no such interest in testing until three days before trial. He argues that action on his part was not necessary until he knew the results from the State Crime Lab. We cannot agree. A legitimate motive to test and challenge the State’s results is best evidenced by 1) asking for independent testing sufficiently in advance of the trial, and 2) taking such steps as are necessary to arrange for the testing which would include obtaining an expert and making certain that the samples were available in sufficient time for the testing to occur. Lukach took none of these steps which renders his motives in asking for a continuance at such late date suspect.

In a recent case, this court was faced with the similar task of determining whether error had occurred in not allowing the defense counsel an opportunity to test suspected marijuana. Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992). In Lewis, the appellant made his request to test two weeks before trial and the question raised was whether the appellant was timely in his request. We held that the request was not timely and further observed that Lewis had made no showing that he had independent grounds to contest the Crime Lab’s findings.

Comparable decisions have been made in analogous cases in other jurisdictions. See United States v. Harper, 505 F.2d 924 (5th Cir. 1975); Prater v. State, 171 Ga. App. 122, 318 S.E.2d 816 (1984); See also “Right of Accused in State Courts To Have Expert Inspect, Examine Or Test Physical Evidence In Possession of Prosecution,” 27 A.L.R. 4th § 6, pp. 1215, et seq (1984). In Harper, the appellant moved to test heroin six days before trial, and the trial judge refused to delay the trial. The Fifth Circuit affirmed and held that the trial judge did not abuse his discretion in denying the continuance because the appellant did not exercise due diligence in obtaining his own expert witness, was late in making his motion, and did not contest the qualifications of the government’s expert who testified that the substance was heroin.

In Prater v. State, the test at issue was whether a pistol could fire without pulling the trigger, and the results were made available the day of the trial. The test results were that the pistol could only fire by pulling the trigger. The appellant moved for independent testing, and the trial court denied the motion. The Georgia Court of Appeals affirmed on the basis that the motion was not timely. The appellant argued that no independent testing was necessary until after the State results were in hand. The Court of Appeals rejected the argument and noted that the appellant had had ample opportunity to examine the pistol but had failed to make a request to do so in timely fashion.

We hold, similarly, in the case before us that the circuit court did not abuse its discretion in finding that Lukach was untimely in his request. Our holding is bolstered by the fact that Lukach presented no evidence and no theory to undermine or contravene the serologists’ testimony, and he did not attack the serologists’ qualifications.

On the subject of the red truck with California plates, we can find nothing in the record that evidences the fact that the truck was in the area on the morning of the crimes. Counsel for Lukach argued to the court in support of his motion that a photograph of the truck was part of the State’s discovery on August 20, 1991, and that the victim had said that the assailant had gray hair while Lukach’s hair was red. Other than arguments made by counsel, there was no proof of record of a red truck or a statement that the assailant had gray hair.

We, finally, note that Lukach did not pursue his motion for a continuance on the basis of the red truck after the trial commenced, although the circuit court had expressly reserved judgment on this aspect of the motion, pending testimony. Without more, we cannot say that the circuit court abused its discretion in denying a continuance on this point.

III. CONFRONTATION OF WITNESSES

The victim did not testify at trial. The circuit court had ruled her competent to testify, but after she was sworn as a witness, she refused to answer questions. This, the appellant urges on appeal, denied him his right to confront a key witness against him as guaranteed by the Sixth Amendment to the U.S. Constitution.

The argument is meritless. Lukach never objected to the victim’s testimony and never voiced his confrontation argument to the circuit court. His argument, therefore, was not preserved for appeal. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); State v. Withers, 308 Ark. 507, 825 S.W.2d 819 (1992).

IV. NEW TRIAL MOTION

For his final point, Lukach argues that he was prejudiced by the State’s failure to reveal to him the results of fiber testing by the State Crime Lab which were made available to the Hot Spring County Sheriffs Department on the second day of the trial. Lukach did not find out about the tests until after the trial had concluded.

Though the fiber analysis was not provided to Lukach, the prosecuting attorney averred that he did not know of its existence either. Even though the prosecutor may deny knowledge of the report, that information is still imputed to him. Dumond v. State, supra. The appellant, however, failed to show any prejudice resulting from the State’s lapse. The fiber analysis report was found by the circuit court not to be exculpatory, and we agree.

In Thomas v. State, 300 Ark. 103, 776 S.W.2d 821 (1989), we faced a similar issue. Thomas requested a new trial based on the failure of the State to provide him with a statement which was made by the victim. The circuit court ruled that the statement was not exculpatory, and hence Thomas was not prejudiced. We affirmed and cited authority for the principle that withheld evidence is material only if it has a reasonable probability of producing a different result at trial. The evidence in Thomas would not have changed the result. Nor would the fiber report in the case before us. Accordingly, there was no prejudice to the appellant caused by the State’s omission.

Pursuant to Ark. Supreme Ct. Rule 11 (f), the Attorney General abstracted certain objections by the appellant in its brief. A potential juror did state on voir dire that she thought the defense would have to prove Lukach’s innocence. An objection was made, and the circuit court denied Lukach’s request that she be struck for cause. It is not known, however, whether the defense used one of its peremptory challenges to strike this potential juror or whether she actually sat as a juror. The burden is on the appellant to bring up a sufficient record to demonstrate error. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987). This he failed to do.

Because a life sentence is involved, the record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    UNITED BILT HOMES, INC. v. Charles SAMPSON
    92-424
    832 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Tom Tanner, for appellant.

      Mike Wilson, for appellee.
   Robert L. Brown, Justice.

Following a bench trial, the appellant, United Bilt Homes, Inc., was assessed compensatory damages in the amount of $12,191.28 for tortious interference with a contract and punitive damages in the amount of $5,000. United Bilt appeals on two grounds: a) there was no breach by United Bilt of its agreement with Sampson; and b) punitive damages are not available for breach of contract.

We disagree and affirm on both points.

The facts of this case involve a fire at Sampson’s house, subsequent repairs, and the use of insurance proceeds as payment for the repair work. In July 1987, Sampson bought a repossessed, unfinished house “as is” from United Bilt, which retained a mortgage, and lived there until a fire caused extensive damage on January 25,1990. An insurance adjuster investigated the resulting claim and made a repair estimate of $18,191.28. Sampson and United Bilt agreed to the amount in the estimate, and that amount was paid by the fire insurance carrier to United Bilt, the loss payee under the policy. The insurance check required the endorsement of both Sampson and United Bilt. United Bilt agreed that Sampson could proceed to make the repairs, and, based on that agreement, Sampson endorsed the check. United Bilt then placed the check proceeds in escrow.

Sampson hired Elmer Knox to do the repair work, and United Bilt subsequently advanced $6,000 for materials, leaving $12,191.28 in escrow. Knox completed the repairs but, upon inspection, United Bilt presented a punch list on July 18, 1990, necessitating additional work. Knox performed the work, but United Bilt again refused payment and presented a second punch list on August 15, 1990. Knox completed the second list. Sampson testified that there were three punch lists and that he refused to turn the last punch list over to Knox because he was satisfied with Knox’s work.

United Bilt still denied payment and required more work from Knox. As a result of United Bilt’s refusal to pay, Knox sued Sampson for breach of contract. Sampson, in turn, impleaded United Bilt, alleging tortious interference with his contract with Knox and seeking compensatory and punitive damages. Following a bench trial on May 20, 1991, the circuit court found for Knox on his complaint and for Sampson on his third-party complaint. Judgment was entered on July 9, 1991, and Knox was awarded damages against Sampson of $12,550.84. Sampson was then awarded compensatory damages against United Bilt of $12,191.28 and punitive damages of $5,000. The court also awarded Sampson pre-judgment and post-judgment interest and attorney’s fees against United Bilt.

United Bilt’s arguments on appeal are tied to its theory that two contracts existed in this matter. The first contract was one between Sampson and Elmer Knox for the repairs to the home. In the second contract, Sampson agreed to make all repairs in the insurance carrier’s estimate in exchange for the insurance proceeds. United Bilt argued at trial that Sampson, through his contractor, Knox, refused to do this and was, therefore, not entitled to payment. Specifically, United Bilt argued, among other things, that the sheetrock was not installed in all bedrooms, new exterior doors and cabinets were not built, a forty-gallon water tank was replaced with a thirty-gallon tank, and the quality of work was generally low.

Knox and Sampson countered that Knox did more painting than ordinary (four coats); that he added interior doors that had not been in the house in 1987; that he installed additional kitchen cabinets as well as baseboards, door trim, and window sills; that he did all of the required sheetrock work; and that he replaced some shutters and two windows. According to Knox, he did not install a heating unit because the house did not have one before the fire, but he installed a thirty-gallon water tank because that is what the house previously had.

The circuit court found that the two agreements urged by United Bilt were, in fact, made. The court also found that the repairs to Sampson’s house had been completed and were done in a good and workmanlike manner. The issue of completion of repair work in a satisfactory manner was clearly one of fact for the circuit court to resolve. See Wilson v. Allen, 305 Ark. 582, 810 S.W.2d 42 (1991). The court found that Sampson had performed his part of the bargain by retaining Knox to do the work and that Knox performed satisfactorily. We cannot say that this finding was clearly erroneous.

We next turn to United Bilt’s argument that a breach of its agreement with Sampson did not support an award of punitive damages. It is clear that the circuit court found that United Bilt did more than breach its contract with Sampson. It also found that United Bilt “knew or ought to have known that its conduct would naturally result in damage to [Sampson], but it persisted in reckless disregard of the consequences.” The question left for this court to decide is whether the evidence and testimony offered at trial constituted substantial proof of tortious interference with an existing contract. We conclude that Sampson did prove a case in tort.

The principle has long endured in the law that a third party who intentionally and with malice interferes with the contractual relations of another incurs liability for his action in tort. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984); Lumley v. Gye, 119 Eng. Rep. 749 (Q.B. 1853); see also, generally, Prosser, Law of Torts, § 129, pp. 927, etseq. (4th Ed. 1971). Arkansas has recognized wrongful interference with a contract as an actionable tort for nearly a century. See Mahoney v. Roberts, 86 Ark. 130, 110 S.W. 225 (1908); see also Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969).

Underlying the tort is the premise that a person has a right to pursue valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party. Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981); Mason v. Funderburk, supra. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 820 S.W.2d 440 (1991); Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989).

In the case before us, each of the four necessary elements was clearly established at trial through testimony and exhibits. A contract existed between Sampson and Knox for Knox to do the repair work and for Sampson to pay him. United Bilt knew about the contract and knew that Knox had done additional repairs based on at least two United Bilt punch lists. United Bilt’s demand for additional work from Knox and its refusal to pay over the insurance proceeds plainly caused a breach of the contract between Sampson and Knox because Sampson could not pay his contractor. This led to Knox’s lawsuit against Sampson. Lastly, Sampson was damaged by United Bilt’s actions. He could not move back into his house for more than a year and was forced to incur the cost of renting an apartment. He was threatened by United Bilt with a foreclosure suit on the mortgage. And he was liable on his contract with Knox for $12,500.84.

By wrongfully withholding the escrow funds, United Bilt prevented Sampson from performing his contract with Knox. This constituted sufficient interference. Prosser in discussing interference by prevention of performance says:

Beyond this it may be said that actual inducement [of breach] is not necessarily required at all and that interference with contract may be quite sufficient for liability, provided always that it causes harm and that the interference was unjustified. Thus no actual repudiation of the contract is necessary for liability, and it is enough that the contract performance is partly or wholly prevented, or made less valuable, or more burdensome by the defendant’s unjustified conduct.

Prosser & Keeton, Law of Torts, § 129, p. 991 (5th Ed. 1984). Similarly, United Bilt did not actually repudiate the contract between Sampson and Knox but its conduct unquestionably was unjustified. It caused harm to Sampson, prevented his performance, and denied him the benefits of his contract with Knox in the form of a finished home.

In sum, though the repairs had been completed in a workmanlike manner, United Bilt refused payment to Sampson, knowing full well that Sampson owed the money to Knox. United Bilt had Sampson and Knox in a vise, and it used the pressure of withheld money to have work done on the home that exceeded the repairs initially contemplated. Sampson argued at trial that United Bilt did this to enhance the value of its collateral which was the mortgaged house. Whatever the reason, this was wrongful interference by United Bilt and forced Sampson to breach his contract with Knox and incur damages. We hold that United Bilt’s conduct was tortious interference with an existing contract. We further hold that the circuit court’s award of punitive damages was not in error. See L.L. Cole & Son, Inc. v. Hickman, supra.

Affirmed.


author: Per Curiam.

text:
    IN RE ADOPTION OF K.F.H. and K.F.H.
    92-183
    834 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered June 22, 1992

      Todd Williams and Lisa Jogler, for appellant.

      Kaye Hartenstein and Rob Shafer, for appellee.
   Per Curiam.

The appellant in this adoption case asks that we close all records and not allow inspection of them by any person other than Justices of this Court, officers of the Court, and the parties and their counsel. It is also requested that if oral argument is held it be closed to all persons other than those mentioned above.

In support of the motion Ark. Code Ann. § 9-9-217 (1987) is cited. That Statute requires closure of court proceedings with respect to “[a] 11 hearings held in proceedings under this sub-chapter.” The subchapter is the Arkansas version of the Revised Uniform Adoption Act, Ark. Code Ann. §§ 9-9-201 through 9-9-224 (1987 and Supp. 1991), which does not govern appeals of adoption cases.

This Court has no rule governing closure of records; however, we have previously closed records in adoption cases following the spirit of the Statute. We grant the motion to close the records in this case.

The portion of the motion seeking closure of oral argument, if any, is denied. It will be the responsibility of counsel to see to it that any mention of the parties is done in terms of “appellant” and “appellees” and that others are mentioned by initials or in another manner so as not to reveal their identities.


author: Jack Holt, Jr., Chief Justice.

text:
    Max ROE, Dan Roe, Otho Roe and Marie Roe v. Fred W. DIETRICH, Jr., Ralph Goza, and Ben B. Floyd, Trustee
    92-56
    835 S.W.2d 289
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Shackleford, Shackleford & Phillips, P.A., by: Teresa Wineland, for appellants.

      Bramblett & Pratt, by: Eugene D. Bramblett and Roberts, Harrell, & Lindsey, by: Paul E. Lindsey and Ralph C. Goza, for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal involves a chancellor’s findings of preferential transfer of real property and the execution of a partnership dissolution agreement by the appellants for the alleged purpose of defrauding the appellees as judgment creditors.

Appellee Ralph Goza was a general partner with appellants, Max Roe and Dan Roe, in an entity called Buena Vista Farms. Appellee Dr. Fred Dietrich was a limited partner. Mr. Goza filed an action in the Ouachita County Chancery Court to dissolve and wind up the partnership and to equalize the capital accounts. Following a hearing before Judge Jim Gunter, a chancellor serving by special assignment, judgments were entered in favor of Mr. Goza and Dr. Dietrich and against Max Roe and Dan Roe.

On the day of the hearing, April 26, 1990, Mx and Dan Roe executed a warranty deed conveying to their parents, Otho and Marie Roe, 260 acres of timberland which Max and Dan owned under another partnership known as MDR Enterprises. On July 6, 1990, Max Roe paid the judgment entered against him. Dan Roe’s judgment remained unsatisfied.

On July 12, 1990, Dr. Deitrich and Mr. Goza, in a subsequent and separate lawsuit, filed a petition to set aside the deed to Mr. and Mrs. Roe as a fraudulent conveyance. A month later, Max and Dan Roe entered into an agreement to dissolve the MDR Enterprises partnership in the event the petition to set aside the warranty deed was upheld. Under the terms of the agreement, 35 acres of the real property and 13.72% of the capital assets were set aside for Dan Roe and 225 acres and 86.28 % of the capital assets for Max Roe. Eight days later, Dan Roe filed for bankruptcy and appellee Ben Floyd was appointed to serve as trustee representing the creditors.

The appellees later amended their petition to set aside not only the warranty deed but also the agreement to dissolve partnership, as preferential transfers and fraudulent conveyances. Judge Jim Gunter was again assigned to hear the further dispute between the parties. Pretrial motions by the appellants to continue the trial and to disqualify Judge Gunter were denied.

Following trial, the chancellor set aside both the conveyance to Otho and Marie Roe and the dissolution agreement. The trial court found that Dan Roe held two-thirds of the real estate property and Max Roe one-third and that their partnership capital accounts in MDR were equal.

On appeal, the appellants assert the trial court erred 1) in denying their motion for continuance; 2) in denying their motion for disqualification; 3) in deciding the respective interests of Max Roe and Dan Roe in MDR Enterprises and in failing to dismiss Max Roe as a defendant; and 4) in determining the capital account balances and ownership of the partnership property. We disagree with all four arguments and affirm.

I. CONTINUANCE

The appellants first argue the trial court abused its discretion by refusing to grant a continuance because Max Roe was unavailable for trial. They contend Max’s testimony was crucial to a determination of the capital contributions to the MDR partnership.

We have held such a denial will not be reversed until the trial court abused its discretion in doing so by acting arbitrarily and capriciously. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983).

The parties were notified by letter dated July 25, 1991, that trial was scheduled for September 26, 1991. The appellants claim that in August, Max Roe, who had apparently been unemployed, was offered a temporary job as environmental and safety engineer on a pipeline construction job in Connecticut. The appellants moved for a continuance on September 18, stating that due to the critical nature of Mr. Roe’s responsibilities and the mandatory deadline for completion of the pipeline, Max Roe could not be spared, even for a few days, until the project was completed late in December. The appellants proffered an unverified letter to this effect from Mr. Roe’s employer, but the chancellor declined to admit it into evidence on the basis of hearsay. The motion was denied as being untimely.

We agree since the appellants had 60 days advance notice of the trial date, yet waited until eight days from trial to file their motion. We also note the appellants made no proffer, either in their motion or at the pre-trial hearing, of what Mr. Roe’s testimony would be other than a general statement that it was important to a determination of the partnership interests. See Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980); Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984). Lastly, as the appellees point out, Dan Roe testified at length as to what he and Max agreed upon in determining their respective interests in the partnership, and it is doubtful Max Roe’s testimony would have added anything in this regard.

Under these circumstances, we cannot say the trial court abused its discretion in denying the continuance.

II. DISQUALIFICATION

The appellants next contend the chancellor erred in refusing to recuse from the case since he presided over the previous litigation involving the dissolution of the Buena Vista Farms partnership. The chancellor ruled the motion was untimely, without merit, and that the case was properly assumed under his jurisdiction as it was simply an extension of the first lawsuit by way of a postjudgment collection proceeding.

The decision to disqualify from a case is, again, discretionary with the trial court. See Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986). That discretion should be exercised in light of the Arkansas Code of Judicial Conduct. Canon 3.C.(1) provides that a judge should disqualify himself in a proceeding where his impartiality “might reasonably be questioned, including. . .instances where he has a personal bias or,prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .”

We have held that this section of the code is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in it. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987). In Holloway, we held that recusal was not required of a judge who earlier approved a search warrant and later had to rule on the validity of the warrant in a pretrial suppression hearing. Although we are not entirely persuaded that this case was a mere extension of the earlier case in the nature of a “post judgment collection proceeding,” as ruled by the chancellor, the same principle applies, and we will not impute improper personal knowledge to Judge Gunter simply because of his earlier participation in the first trial. Moreover, aside from pointing to various adverse rulings, the appellants have cited no evidence from the record where Judge Gunter exhibited personal bias or prejudice. We find no abuse of discretion in the chancellor’s refusal to disqualify.

III. DETERMINATION OF INTERESTS AND DISMISSAL

For their third point of error, the appellants argue it was improper for the trial court to have gone beyond setting aside the conveyance of MDR Enterprises property to determine Max and Dan Roe’s respective interests in that property. They assert this determination was not requested in the pleadings and properly falls under the jurisdiction of the bankruptcy court. It is further argued the chancellor erred in refusing to dismiss Max Roe from the lawsuit as he had satisfied the judgment against him before the filing of the petition to set aside the conveyance. We disagree with both contentions.

In their amended petition, the appellees alleged that both the real estate transaction and the dissolution agreement were attempts by Max and Dan Roe to defraud the appellees. They prayed that both transfers be set aside and an undivided one-half interest in the partnership property be revested in Dan Roe, subject to the administration of the bankruptcy trustee. Having conceded Max Roe’s satisfaction of the judgment against him prior to the filing of their petition, the appellees sought only Dan Roe’s interest in the partnership. The fact that Max Roe’s judgment had been satisfied, however, did not warrant his dismissal from the case. He executed, along with Dan Roe, both the warranty deed to Otho and Marie Roe and the agreement to dissolve the MDR partnership and was, therefore, properly made a party to the lawsuit.

As to the pleadings, although the appellees did not specifically request a determination of Max and Dan Roe’s respective interests in the MDR partnership, the original petition and its amendment requested that both transactions be annulled and that Dan Roe’s interest be returned to him, subject thereafter to the jurisdiction of the bankruptcy trustee. This necessarily required a finding of exactly what percentage of the partnership capital and property constituted Dan Roe’s interest and was properly considered. A court of equity can fashion the relief justified by the proof. Keith v. Barrow-Hicks Ext. Imp. Dist., 275 Ark. 28, 626 S.W.2d 951 (1982). Furthermore, the appellants cite no authority, either from the bankruptcy code or from case law, for their second argument that the matter should have been resolved by the bankruptcy court. Points of error unsupported by authority or convincing argument will not be considered on appeal. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

IV. DIVISION OF INTERESTS

In actually determining the property interests held by Max and Dan Roe in this MDR Enterprises partnership, the chancellor found that at the time of the conveyance to their parents, Max Roe owned 33.3 % (one-third) of the partnership assets and Dan Roe owned 66.67 % (two-thirds). The capital account balances, or contributions, were found to be equal. The trial court made these findings by relying on the MDR Enterprises tax returns.

The appellants argue such reliance and the chancellor’s resultant findings were erroneous as the tax returns do not accurately reflect Max and Dan Roe’s actual contributions and intent with regard to their respective interests. To this end, they submitted a “summary” and various checks evidencing Max Roe’s contributions to the partnership. The appellants argue the evidence shows the true capital contributions, at the time of the transfer, totalled $11,823.31 for Dan Roe and $74,394.34 for Max Roe.

The tax returns for the years 1986 through 1989 were examined at trial. The first two years show equal capital account balances. There were no recordings of capital account balances for 1988 and 1989; however, the returns for those years show a transfer of assets, reflecting an increase in Dan’s ownership to 66.67 % and a decrease in Max’s ownership to 33.3 %. Dan Roe admitted the returns reflected such a change but stated it was his understanding he and Max could show a disproportionate share of income and losses for deduction purposes, without affecting ownership. Dan Roe admitted he had made no contributions after 1987 and that the evidence he submitted showed five contributions by Max Roe after 1987, totalling approximately $7,000.

We note the record reflects there was no written agreement evidencing the respective contributions of the partners when MDR Enterprises was formed, nor a general partnership agreement as such. As a result, the chancellor was required to make this determination, and any subsequent change in ownership of assets, from the dissolution agreement, the tax returns, and Dan Roe’s testimony and proffered exhibits, namely the summary of Max Roe’s contributions and various checks.

The tax returns were prepared at the direction of Dan and Max Roe with information they supplied their accountant and were signed by Dan Roe under penalty of perjury. They reflect an entirely different arrangement as to the partnership interests from that represented in the dissolution agreement and by Dan Roe at trial. The chancellor is in a superior position to evaluate the credibility of witnesses, Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989), and is not bound to accept the testimony of a witness as true where a reasonable inference contrary to his testimony could have been drawn from the facts stated or from other facts and circumstances shown by the evidence unfavorable to his conclusion. Eudora Lumber Co. v. Neal, 263 Ark. 40, 562 S.W.2d 294 (1978). In this light, we cannot say the chancellor’s findings were clearly erroneous. See Clark v. Bank of Bentonville, 308 Ark. 241, 824 S.W.2d 358 (1992).

For the foregoing reasons, we affirm.


author: Robert H. Dudley, Justice.

text:
    Alvin DWIGGINS v. PROPST HELICOPTERS, INC., Arkansas Power & Light, and The Dow Chemical Company
    91-303
    832 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Wilson, Engstrom, Corum & Dudley, by: Timothy O. Dudley, for appellant.

      McMillan, Turner & McCorkle, for appellee Arkansas Power & Light.

      Wright, Chaney, Berry & Daniel, for appellee Propst Helicopters, Inc.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee Dow Chemical Co.
   Robert H. Dudley, Justice.

Alvin Dwiggins, the plaintiff and appellant, filed suit against Propst Helicopters, Inc., Arkansas Power & Light Co., and Dow Chemical Company. He alleged that on July 24, 1988, defendant Propst Helicopters sprayed mixtures of the herbicides Tordon-K and Garlon-4 on an easement for twin power lines that A.P.& L. has across his farm. He alleged that A.P. &L hired Propst to make the aerial application of these herbicides, that Dow Chemical manufactured them, and that as a result of an inadequate warning by Dow Chemical and of the negligent application by Propst and A.P.& L., he suffered damages. Specifically, he alleged a peach orchard which adjoins the right-of-way was damaged, a nearby pond used for the irrigation of his tomato crop was contaminated and, as a result, he was forced to discontinue watering his tomato crop and it subsequently died, and his pasture under the power line was damaged. He alleged that he owned all of the land on which the damage occurred. Defendant Dow Chemical answered and denied that he owned the land, while defendants Propst and A.P.& L. admitted that he owned it. In his deposition, taken November 25, 1989, the plaintiff testified the part of the peach orchard that suffered the damage was not owned by him, but rather by his father. He leased the land from his father under a written lease for one year, but the two had an oral agreement by which plaintiff could continue to lease the land for as long as he wanted. On May 13, 1991, Dow moved for summary judgment and argued that the plaintiff was unable to show that the herbicides had caused any damage. The trial court ruled that there were issues of fact to be decided and denied the motion. On June 24, 1991, Propst and A.P.& L. filed a joint motion for summary judgment in which they alleged that the plaintiff was unable to show that his crops were damaged as a result of spraying the herbicides. Dow filed a motion for reconsideration of its previous comparable motion. The plaintiff filed a response asking that summary judgment be denied.

On July 26, 1991, three years and two days after the cause of action arose and five days before the case was scheduled for trial, Dow and A.P.& L. filed a joint motion for partial summary judgment, or, in the alternative, a motion in limine. They contended that the plaintiff did not own the part of the orchard allegedly damaged, and as a result he could not recover beyond the term of his leasehold. On the same day, all the defendants’ answers were correspondingly amended. Service of the motions and amended answers was by mail to the plaintiff’s attorneys. The plaintiff’s attorneys received the motions only shortly before July 31, 1991, the day set for trial on the merits. Before the trial began, the motions were heard, and the trial court granted summary judgment for all the defendants. The trial court specifically held: (1) The peach orchard was on land leased by the plaintiff on an annual basis, he could only recover for damage that occurred during his leasehold, and because the 1988 peach crop had already been harvested by the date the spraying occurred, he did not suffer any damages; (2) there was no damage to the tomato crop as a result of the spraying; and (3) there was no damage to the pasture area as a result of the spraying, but, even if there were damage, A.P.& L. had a right to spray its easement.

On appeal, the plaintiff first argues that the motions for summary judgment and the amended answers that were filed on July 26, or just five days before the date set for trial, were untimely. In his argument he points out that A.R.C.P. Rule 56(c) requires that motions for summary judgment be made ten days before the time set for the hearing, and that we have said the requirement of the rule is not a mere formality and should not be treated so lightly as to deprive a party of an opportunity to present rebutting evidence and argument. Purser v. Corpus Christi State Nat’l Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). He additionally points out that A.R.C.P. Rule 17 provides that after an objection that the action is not being pursued in the name of the real party in interest, a reasonable time must be allowed for joinder of the real party in interest, in this case, his father, the owner of the real estate. The citations to the rules of civil procedure and to our cases are valid, but we do not consider the argument since the record as designated and abstracted does not contain an objection to the filing of either the amended answers or the motions for summary judgment, and an objection will not be considered when raised for the first time on appeal. Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

The plaintiff alternatively argues that, if the amended answers and motions for summary judgment are allowed to stand, we should reverse the case of Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990), which the trial judge relied upon in granting summary judgment. We decline to reach the argument as it is raised for the first time on appeal. Since the plaintiff did not object below to the amendments to the answers or the motions for summary judgment, and since the request to overrule Burnette v. Morgan is made for the first time on appeal, we affirm the trial court’s ruling with regard to his leasehold interest in the peach orchard.

The plaintiffs second point of appeal involves the alleged damage to his tomato crop. The plaintiff pleaded that the herbicides were sprayed over a pond from which he irrigated his tomatoes. Consequently, he ceased irrigating his tomatoes from the pond, and as a direct result, he lost the balance of his tomato crop. The trial court held that the plaintiff could not recover for the loss of his tomato crop because he had “no proof of any chemicals involved in the spraying operation being in the pond water.” The plaintiff assigns the ruling as error, and the assignment is meritorious. It is true that later tests on the water from the pond did not reveal the presence of herbicides, and three of plaintiffs expert witnesses testified by deposition that they were not able to state that the pond was contaminated by the spraying. However, the plaintiff testified by deposition that vegetation to the edge of the pond was killed by the spraying. Gerald King, an employee of the State Plant Board, deposed that he saw hormone-type herbicide damage to brush growing in the edge of the pond, and Ron Beaty, the local County Agent, testified that common sense would indicate that if the chemicals were sprayed by a helicopter to the very edge of the pond, then some of the herbicides would have gotten into the water. Thus, there is some doubt about the factual issue, and it was error to decide it by summary judgement. Roland v. Gastroenterology Assocs., 280 Ark. 278, 657 S.W.2d 536 (1983).

The plaintiffs final assignment of error is also a valid one. In one part of the summary judgment a finding of fact made by the trial court is that plaintiffs pasture was not sprayed. In another part of the judgment, the court finds that the plaintiff testified that his pasture was sprayed in the area underneath the power line. Since the plaintiff did in fact testify in his deposition that his pasture was sprayed under the power line we treat the finding as being that the pasture was sprayed. In dismissing the claim for damage to the pasture, the trial court additionally ruled that “the alleged damage to plaintiffs pasture was in an A.P. & L. right-of-way wherein A.P.& L. had the right to maintain and keep clear timber and overhangs from its lines.” The judgment constitutes a ruling that A.P.& L. could damage the pasture without liability under the terms of the easement. The “right of way permit” provides that for $45.26 the plaintiffs predecessors in title conveyed to A.P.& L. the right to build and maintain a double line of poles across the land with “the right to clear and keep clear a right-of-way one hundred feet in width, and to remove all other timber and obstructions that may interfere with the use of said line or that may or might be a hazard to the use of the same.” However, it was “especially understood” that the plaintiff “shall have full and free use of said right-of-way except for the purposes herein stated; and the right to farm and cultivate and otherwise use said right-of-way by the [plaintiff].” In sum, the easement gives A.P. & L. the right to clear the right-of-way of obstructions that may interfere with the power lines or constitute a hazard to them, but it also gives the plaintiff the “especially understood” right to farm and cultivate the same right-of-way. Therefore, it was error to grant a summary judgment that the easement gave A.P.& L. the unqualified right to damage the pasture land in the right-of-way without liability.

During the oral argument in this court, the plaintiff-appellant moved to dismiss with prejudice his case against Dow Chemical. Dow Chemical then moved to dismiss with prejudice its cross-appeal. Both motions are granted.

Affirmed in part, reversed in part, dismissed with prejudice in part, and remanded for further proceedings.


text:
    Joe Wayne HARRIS and Elena Harris v. STEPHENS PRODUCTION COMPANY, et al.
    92-269
    832 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Ray Edwards of Edwards & Edwards; Charles “Chuck”

      Dyer, and Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellants.

      Daily, West, Core, Coffman & Canfield, by: Michael C. Carter and Janice West Whitt, for appellee.
   Robert H. Dudley, Justice.

The plaintiffs, Joe and Elena Harris, filed this suit claiming a 100% working interest ownership of the oil, gas, and mineral rights in a 40-acre tract and the concomitant rights to the proceeds from a nearby commercially producing well that is located in the same drilling unit. The chancellor found the plaintiffs’ claims to be without merit, and they appeal. The ruling of the chancellor was correct, and we affirm.

In 1961, Bert Tankersley leased his oil, gas, and mineral interest in 100 acres to Gulf Oil Corporation. The lease included the 40 acres at issue in the north half of section 8, plus 60 acres in section 9. Stephens Production Co., the defendant, and appellee, subsequently acquired the leasehold working interest of the 40-acre tract in section 8 and then pooled and unitized for drilling the north half of section 8 and the south half of section 5. Stephens owned 100 % of the oil and gas leases in the 640-acre drilling unit. In 1970-71, Stephens drilled a gas well, the Harris-Chitwood No. 1, on the 40 acres in section 8. The well produced for six years, but ceased commercial production in 1977. When commercial production ceased, 70 % of Stephens’ leases in the unit lapsed due to non-production. Stephens held the remaining 30 % by production since those leases contained acreage that was in other producing units. Earlier, in June 1968, Chevron had drilled the ChevronWhitlock No. 1 Well in the section 9 drilling unit that contained the other 60 acres of the Tankersley lease. The ChevronWhitlock No. 1 Well has produced in paying quantities since 1968 and so, unless otherwise terminated, Stephens holds the 40-acre tract by virtue of production on the 60 acres.

Plaintiffs, Joe and Elena Harris, through the years purchased four tracts of land, comprising about 500 acres, all located in the immediate area. One of the tracts, which was apparently purchased in 1974, is the 40-acre tract in section 8. The HarrisChitwood No. 1 is located 2,000 feet north of plaintiffs’ house.

After the Harris-Chitwood No. 1 ceased commercial production, Stephens attempted without success to interest other production companies in drilling in the unit and, in 1980, decided to cap the well. When Stephens sent a crew to cap the well, plaintiff Joe Harris met them and asked them not to cap it, but instead to let the Harrises use the gas from the well for their home. A Stephens vice-president told Harris that he would have to get the approval of the Oil and Gas Commission. With the help of his attorney, Harris drafted a letter to the Commission asking it to allow him to assume the responsibility and the liability for the well and for the future expense of capping of it. The Commission responded by letter telling Harris what he would have to do in order to be allowed to use the well for his personal use. About a year later, Stephens wrote the Harrises and told them that it would cap the well if it did not hear from them in forty-five days. There was additional correspondence and then, in October of 1982, Stephens mailed to the Harrises a “Conveyance and Bill of Sale,” with a copy to the Commission and to the plaintiffs’ attorney. The Harrises paid nothing for the conveyance. In 1983, the commission gave the Harrises the right to use the well for household purposes.

In 1986, TXO Production Corp. became interested in drilling another well in the same unit in which the HarrisChitwood No. 1 is located and, to that end, leased some of the Harrises’ other property, but not the 40 acres at issue. TXO declined to take a lease from the plaintiffs on the 40 acres at issue because it concluded that was held by Stephens as a result of production. Stephens participated in the drilling of the well, the Wamock No. 1, which was successfully completed in December of 1986. The well is in commercial production, and Stephens has paid royalties to the plaintiffs since production began. Over two years after the completion of the Wamock No. 1, the plaintiffs filed this suit claiming a 100 % working interest ownership in the 40-acre tract because of the 1982 “Conveyance and Bill of Sale.” Stephens counters that the conveyance shows on its face that it conveyed only the well, while the plaintiffs contend that it conveyed the entire unit. The chancellor ruled that some of the language in the instrument was ambiguous and allowed parol evidence to determine the true intent of the parties. The plaintiffs assign this ruling as error. The nature of the case itself tends to show the correctness of the chancellor’s ruling. The Harrises contend that the instrument conveyed the gas leases in the unit, while Stephens contends that it conveyed only the well. The instrument provides:

That in consideration of the sum on ONE DOLLAR ($1.00), the receipt of which is hereby acknowledged, and the further release of all liability and responsibility, STEPHENS PRODUCTION COMPANY does hereby SELL, DELIVER and TRANSFER unto JOE HARRIS, Route 1, Alma, Arkansas 72921, all of its interest in and to the physical equipment, Oil and Gas Leases, and all other property rights owned, used or held by it in connection with the Harris-Chitwood #1 Well located 850 feet East and 530 feet South of the Northwest corner of the Northwest Quarter of the Northeast Quarter (NW/4 NE/4) of Section 8, Township 9 North, Range 30 West, Crawford County, Arkansas. This conveyance is made without warranty of title, either express or implied, and is also without representation as to the quantity, quality or continued life of the subject well.
Joe Harris, by the acceptance of this conveyance, hereby agrees and stipulates that the interest conveyed hereby shall not be transferred or conveyed, in whole or in part, to any other person or party and the gas, if any, produced from said well shall not be sold, bartered or conveyed to any other person or party, it being understood that the gas is for the personal, sole and exclusive use of Joe Harris on the premises adjacent to the wellhead.
As a part of the consideration for this transfer, Joe Harris hereby stipulates and agrees that Stephens Production Company shall not be responsible for the plugging of said well nor shall it be liable for any claims or obligations in connection with the production of gas therefrom. Joe Harris agrees hereby to hold Stephens Production Company harmless from the claims of all persons whomsoever arising out of or in connection with the operation or production of gas from the Harris-Chitwood #1 Well and from any and all actions, causes of action, claims and demands for, upon, and by reason of any damage, loss or injury sustained by anyone in consequence of the further operations of said well.
EXECUTED this 11th day of October, 1982.

With the exception of one phrase, the instrument would not be ambiguous, and its purpose clearly would have been only to sell, deliver, and transfer to the plaintiffs the well. However, in the seventh line, the instrument contains the phrase “Oil and Gas Leases” and, arguably, the instrument could be construed to mean that it conveyed Stephens’ oil and gas leases in the unit. Thus, it contained an ambiguity, and the chancellor allowed parol evidence to aid in the construction of the vague phrase. The chancellor’s ruling was correct. In Mays v. Barnett, 150 Ark. 492, 496, 234 S.W. 488, 489 (1921), we quoted with approval from Brown & Hackney v. Daubs, 139 Ark. 53, 213 S.W. 4 (1919) as follows:

Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it is quite another thing. The former is not permissible. . . . The later is permissible, and is often absolutely essential to show the real nature of the agreement. . . . Both rules are elementary, and do not conflict in the slightest degree with each other. ... A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction often leads to error. [Emphasis added.]

The attorney who drafted the instrument for Stephens testified that the purpose of the phrase was to give the plaintiffs the leasehold interest in the well itself, and the Harrises would then be responsible in the event other royalty owners in the unit asked for royalties on the gas used in the Harrises’ house, or if the State assessed severance tax on the gas used by plaintiffs, or if there was a State conservation assessment on that production. The attorney testified that there was no intent to give the plaintiff all of the leases in the unit. Other correspondence between plaintiffs, Stephens, and the Commission, shows that, at the time of the instrument, the plaintiffs’ understanding and intention was that they were to receive Stephens’ ownership only in the HarrisChitwood No. 1, subject to the conditions imposed in the instrument. In sum, the chancellor correctly allowed parol evidence to aid in the construction of the vague phrase “Oil and Gas Leases.”

The plaintiffs next argue that the trial court erred in remaking the instrument. We summarily reject the argument. The trial court did not remake or reform the instrument, rather it allowed parol evidence for the purpose of construing the instrument as written.

The plaintiffs’ final two arguments are treated together. They argue that the trial court erred in failing to construe the instrument most strongly against the party that prepared it and that the decision is clearly erroneous. While an instrument is to be construed most strongly against the party that prepared it, the primary rule in the construction of instruments is that the court must, if possible, ascertain and give effect to the intention of the parties. Sternberg v. Snow King Baking Powder Co., Inc., 186 Ark. 1161, 57 S.W.2d 1057 (1933). Even when this instrument is construed most strongly against the party that prepared it, the plaintiffs cannot prevail. Finally, the ruling of the chancellor, rather than being clearly erroneous, is eminently correct.

In their reply brief, plaintiffs argue that the chancellor erroneously concluded that Stephens held the lease to the 40 acres by production in the neighboring unit. We do not reach the merits of this argument, as it was not discussed in the plaintiffs’ original brief, and points may not be argued only in reply. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

Affirmed.

Brown, J., not participating.


text:
    Hugh Allen SLATER v. STATE of Arkansas
    CR 92-111
    832 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992
    [Rehearing denied September 14, 1992.]

      John R. Henry, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Hugh Allen Slater, Jr., appellant, was convicted of two counts of rape and two counts of kidnapping involving two different victims. He argues that the trial court misconstrued the rape shield statute and erroneously refused to allow him to present evidence of both prosecutrixes’ sexual consent on other occasions. The trial court correctly applied the statute, and we affirm the judgments of conviction.

At trial appellant asserted a consent defense, and filed a motion pursuant to the rape shield statute, Ark. Code Ann. § 16-42-101 (1987), asking that he be allowed to present evidence of both prosecutrixes’ sexual conduct on other occasions. Appellant proffered the testimony of a witness concerning the sexual conduct of one prosecutrix before the rape, and concerning the conduct of both prosecutrixes after both rapes. The trial court excluded the proffered testimony.

The statute broadly excludes evidence of specific instances of the victim’s prior sexual consent with the accused or any other person, for all purposes. Ark. Code Ann. § 16-42-101(b) (1987). It then provides that the evidence directly pertaining to the act upon which the prosecution is based, or evidence of the victim’s prior sexual conduct with the defendant, or any other person, may be admitted if the trial court determines that the evidence is relevant and its probative value outweighs its inflammatory nature. Ark. Code Ann. § 16-42-101 (c) (1987).

Appellant argues that the trial court’s ruling was overly broad since the statute only excludes evidence of “prior” sexual conduct, and not evidence of sexual conduct subsequent to the crime. In making this argument he relies upon a court of appeals case, Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986), which held that the statute does not prohibit evidence of sexual conduct of the victim after the rape occurred. However, appellant’s reliance is misplaced, for we overruled the court of appeals case in Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986), and said that “prior” sexual conduct includes all sexual behavior of the victim prior to the date of the trial. Accord 1A J.H. Wigmore, Evidence § 62.1, at 1331 (P. Tillers ed. 1983). Thus, the trial court did not err in applying the statute to exclude evidence of sexual conduct of the victims that occurred after the rapes.

Furthermore, the trial court ruled that sexual conduct after the crimes was not relevant and, in ruling whether evidence sought to be admitted under the statute is relevant, the trial court is vested with broad discretion, and we will not overturn its decision unless it was clearly erroneous. Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981). The decision here was not clearly erroneous.

The other evidence of subsequent conduct was the witness’ proffered testimony that he had seen both of the prosecutrixes two nights after the rapes and they were “out partying regular” and were “still drinking and flirting around . . .just like they had been before.” Again, the trial court did not abuse its discretion in ruling that this evidence was irrelevant. See Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979), in which we upheld the trial court’s ruling that testimony that the prosecutrix “hung around clubs and bars” was not relevant.

Moreover, the statute provides for the admission of only certain kinds of evidence, one of which is evidence of the victim’s “sexual conduct.” The statute defines “sexual conduct” as “deviate sexual activity, sexual contact, or sexual intercourse. . . .’’Ark. Code Ann. § 16-42-101 (a) (1987). Partying, drinking, and flirting do not constitute sexual conduct under the statute. Therefore, evidence of such conduct is not admissible under it. See Bobo v. State, 267 Ark. 1, 289 S.W.2d 5 (1979), in which we said that, because the conduct did not come within the statutory definition of sexual conduct, the trial court did not err in excluding evidence of it. Again, the trial court did not abuse its discretion in excluding this part of the proffered evidence.

Afffirmed.