author: David Newbern, Justice.

text:
    Mark L. DAVIS v. Howard L. HOLT
    90-317
    804 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991.

      Laser Sharp Mayes Wilson Bufford & Watts, by: Dan F. Bufford, for appellant.

      John Dodge, for appellee.
   David Newbern, Justice.

This is an appeal from an election contest decision. The appellant, Mark L. Davis, defeated the appellee, Howard L. Holt, in an election for a seat on the Gentry School District No. 19 Board. The Circuit Court held that Davis was not a resident of the District at the time of his election, was not a qualified elector of the District, and thus was not eligible. The Court declared the position vacant. Davis appeals from the decision, contending that he was a resident and qualified elector of the District. Holt cross-appeals, contending that the Court should have placed him in office as the winner of the election rather than declaring the position vacant. We agree with the Circuit Court’s decision that Davis was ineligible for the position because he was not a resident of Gentry District. We also agree that the position was therefore vacant.

The essential facts are not disputed.

In 1982, Davis received from members of his family a conveyance in fee of a 40-acre tract plus an easement over a .23 acre tract connecting the 40-acre tract with a county road. He had been living in Gentry where his children attended school. Davis spoke with the Gentry School Superintendent who assured him his residence would remain in the Gentry School District if he moved onto the 40-acre tract. The move took place. Davis’s children continued attending the Gentry schools, and he continued to vote in Gentry School District elections.

Davis’s 1984 voter registration listed his residency as being in the Gentry District. He was elected that year to the Gentry School Board. In 1986, a question arose whether he was a resident of the District, and Davis resigned from the Board. In 1988, Davis concluded that the 40-acre tract he owned outright, and on which his dwelling was located, was not in the Gentry School District but that the .23-acre easement was in the Gentry School District. Davis’s father, on April 30,1989, conveyed to Davis the .23 acres in fee, thus creating a 40.23-acre tract lying in both the Decatur School District and the Gentry School District.

In 1987, this Court decided, in Cummings v. Washington County Election Comm., 291 Ark. 354, 724 S.W.2d 486 (1987), that one whose property included land in two school districts could hold office only in the district in which he or she resided, despite the law permitting such a candidate’s children to attend school in either of the two districts, “regardless of the location of the home.” Ark. Code Ann. § 6-18-203 (Supp. 1989).

In 1989, the Arkansas General Assembly passed Act 242 which became effective July 3, 1989. The Act, codified as Ark. Code Ann. § 6-13-616 (Supp. 1989), contains this language:

(a) Except as provided in subsection (b) of this section, no person shall be eligible to be a member of any school district board of directors in this state unless he is a bona fide resident and qualified elector of the school district which he serves.
(b) (1) A person whose residential property contains portions of two (2) school districts shall be eligible to be a member of either of the school district’s board of directors provided he is a qualified elector of the county in which the school district for which he seeks the position lies and he has or formerly had children enrolled in that school district.
(2) For purposes of this subsection, “residential property” means that parcel of land which contains the dwelling in which the person resides not less than nine (9) months out of each year.

The election contested here, in which Davis and Holt were the only candidates, was held on September 19, 1989. On September 29,1989, the Benton County Clerk, acting on her own initiative, changed the residency listing on Davis’s voter registration from “Gentry” to “Decatur.”

The trial Court held that Davis’s residence was in the Decatur School District, “and that did not change when he purchased the .23 acres.” It was also held that Act 242 violates Ark. Const, art. 19, §§ 3. and 4., to the extent the Act permits election to a district office of a qualified elector of the county, as opposed to a qualified elector of the district to be served by the elected official.

Article 19, § 3., of the Constitution provides: “No persons shall be elected to . . . fill a vacancy in any office who does not possess the qualifications of an elector.” Section 4. provides: “All . . . district, county and township officers [shall reside] within their respective districts, counties, and townships . . . .”

1. The elector requirements

Article 19, § 3., of the Constitution requires nothing more than that the elected person be an “elector.” In Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948), a question was raised whether Sitton should be paid his salary as City Marshal of the City of Clinton. His mandamus action was defended on the basis that Sitton was not a resident of the City of Clinton and thus he was not entitled to the office. After discussing statutes bearing on the question whether a city marshal was a public “officer” rather than an employee, this Court wrote:

It must necessarily follow, therefore, that a marshal of a city of the second class and a town marshal of incorporated towns are officers under the meaning of Art. 19, § 3 of our Constitution. That section provides: “No person shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector.”
Appellee, Sitton, having never resided in the City of Clinton, was not eligible to hold the office of city marshal.

See also Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972).

In addition, Ark. Code Ann. § 6-14-108 (Supp. 1989) provides: “All persons who have registered to vote in the manner prescribed by. . . Amendment 51... shall be deemed qualified electors of the school district in which they reside.”

We agree with the trial Court that even though Act 242 purported to make a person whose residential property spans parts of two school districts eligible to serve on the board of either, it did not change the qualified elector requirement of Art. 19, § 3., which we have interpreted to require residence in the political subdivision to be served by the elected official. Nor could it alter the more straightforward residency requirement of Art. 19, § 4. So the question simply becomes one of residency. Does Davis reside in the Gentry School District or not?

In the Cummings case, our decision was based on the fact that the candidate’s home was in a district other than the one where she sought election, but she did not contend she had a physical residence in the District. Davis contends that because the parcel of land containing his residence is in both districts and because he has always intended to reside in the Gentry District that is his residence. He freely admits, however, that his house is located in the Decatur District and that taxes on all his property but the added .23-acre tract go to the Decatur District. Based on these facts, the trial Court concluded that Davis does not reside in the Gentry District, and the addition of the .23 acre tract to his 40 acres did not affect his residency.

Intent is relevant to the question of domicile when a party has more than one residence or has departed from a residence for a temporary stay elsewhere with the intent of returning, see Charisse v. Eldred, supra, but it has far less to do with the concept of residency. While there is no doubt that the concept of residency differs from that of domicile, Stephens v. AAA Lumber Co., 238 Ark. 842, 384 S.W.2d 943 (1964), the definition of “residence” is not easy. An excellent discussion of the term appears in Krone v. Cooper, 43 Ark. 547 (1884). Chief Justice Cockrill, writing for the Court, was faced with the task of determining whether a defendant in an attachment proceeding was a “resident” of Arkansas at the time the writ was sued out. The opinion lamented that the term may have different meanings in different contexts. It was concluded that for purposes of the attachment laws it meant

an established abode, fixed permanently for a time for business or other purpose, although there may be an intent existing all the while to return... at some time or other to the true domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstance that the determination of this question may present, that the courts say, that, subject to the general rule, each case must be decided on its own state of facts.

In view of our prior decisions on the matter of residency in the context of elections, particularly our apparent interpretation of Ark. Const, art. 19, § 3., in Thomas v. Sitton, supra, we cannot disagree with the conclusion the trial Court must necessarily have reached that, in the context of this school election case, the term “residence” is used by the Constitution and statutes to mean the place where Davis’s house was physically located.

This pronouncement is complicated somewhat by Ark. Code Ann. § 14-14-1306 (1987) which provides:

(a) All county, county quorum court district, and township officers shall reside within their respective townships, districts, and counties.
(c) For purposes of this section, legal residence shall be defined as the domicile of the officer evidenced by the intent to make such residence a fixed and permanent home [emphasis added].

A school district, for election purposes is the same as a township. Ark. Code Ann. § 6-14-107(a) (1987).

Like Act 242, § 14-14-1306 does not alter Art. 19, § 3., as interpreted by this Court. Even if the language of § 14-14-1306(c) were thought to be a controlling definition of “residence,” with greater emphasis upon intent, we would consider the highly ambiguous statement in the light of our decision in Brick v. Simonetti, 279 Ark. 446, 652 S.W.2d 23 (1983). There we concluded it was the actions of an elected official in moving physically to an apartment in the quorum court district she was elected to serve which made her a resident of the district.

We therefore affirm the decision on appeal.

2. Authority to declare a vacancy

Holt argues that a court, in an election contest has no authority to declare the position vacant, but having determined the winning candidate ineligible to hold the office, it must declare the candidate obtaining the next highest number of votes the winner.

We have addressed this question previously. In Swepston v. Barton, 39 Ark. 549 (1882), Barton, who had been Swepston’s opponent, challenged the election of Swepston as Sheriff of Crittenden County. Barton alleged numerous violations with respect to the conduct of the election. After filing the action Barton amended his complaint to allege that Swepston was ineligible to hold the office, and thus he, Barton, should be declared the winner. Our decision was that the other election errors alleged by Barton were not of the sort to be considered in a collateral attack. We did not decide whether Swepston was ineligible because there had been no ruling on the point in the Circuit Court. We did, however, discuss it:

As to the legal effect of votes case for an ineligible candidate, two views have been entertained. The English doctrine is, that if the disqualification of a candidate is notorious, votes cast for him will be deemed to have been purposely thrown away, and the candidate having the next highest number of votes will be elected.
But the weight of American authority is, that when a vote for an ineligible candidate is not declared void by statute, the votes he receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.
The real issue in this cause was, which candidate received a majority of the legal votes cast. If Barton did not obtain such a majority, but his competitor was ineligible, it by no means follows that he, as the next in the poll, should receive the office. “The votes are not less legal votes because given to a person in whose behalf they can not be counted.” Saunders v. Haynes, 13 Cal. 145.

According to the annotation, Elections Dead or Disqualified Candidate, 133 A.L.R. 319 (1941), we were, and continued to be, correct in our statement of the weight of American authority on the point. We followed the Swepston case with holdings to that effect, and have consistently followed it in, e.g., Horne v. Fish, 198 Ark. 79, 127 S.W.2d 623 (1939), and Bohlinger v. Christian, 189 Ark. 839, 75 S.W.2d 230 (1934).

We therefore find no impropriety in the trial Court’s conclusion that the school board position in question had not been filled.

Affirmed on appeal and affirmed on cross-appeal.

Glaze, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Jay TERWILLIGER, Director of the Department of Labor of the State of Arkansas v. ST. VINCENT INFIRMARY MEDICAL CENTER
    90-290
    804 S.W.2d 696
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991.

      Bruce H. Bokony, for petitioner/appellee.

      Jack Lyon and Jones, by; Philip K. Lyon and Gary D. Jiles, for respondent/appellant.
   David Newbern, Justice.

Arkansas employers pay an unemployment tax under the Employment Security Law. Exempted from the requirement is employment in the service of a “church or convention or association of churches” or an “organization operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.” Ark. Code Ann. § 10-11-210(a)(4) (A)(i) and (ii) (Supp. 1989). St. Vincent Infirmary Medical Center (SVI) paid the tax after being determined liable for it in 1972 without contest. In 1988 SVI sought exemption. The Arkansas Board of Review determined SVI was not “operated primarily for religious purposes” and denied the exemption. The Arkansas Court of Appeals reversed, reaching the contrary conclusion. We reverse the Court of Appeals decision, reinstating that of the Board, because we conclude the Board’s interpretation of the statute was correct.

The record compiled by the Board consisted of testimony about the nature of the SVI operation. Testimony of Sister Margaret Vincent Blandford established the connection between the infirmary and the Roman Catholic Church; testimony of Don Oglesby presented records to show that the infirmary had been granted an Internal Revenue Service ERISA exemption; testimony of Jack Reynolds established the limitations placed on SVI by the Roman Catholic Church; and testimony of Don Nixon established SVI’s attempts to obtain an exemption.

Sister Blandford testified extensively. She stated that SVI is a “wing” of the Roman Catholic Church and she asserted that the hospital is a conduit for the mission of service to the sick by the Sisters of Charity of Nazareth, a Kentucky charitable corporation. SVI is a separate charitable corporation, subsidiary to the Sisters of Charity of Nazareth. SVI is incorporated in Arkansas, and has run the Infirmary and Medical Center since 1888. The mission of the Sisters is dictated by the Roman Catholic Church, and they are controlled by the Church. They, in turn, manage the hospital. Sister Blandford also established that the Church restricts the type of services they can deliver and does not permit abortion, sterilization, contraception, or euthanasia. She also testified that SVI could operate as a hospital without the Church, although it would not have existed but for the religious mission. Her testimony was clear that, whatever the motivation of the Sisters, SVI functioned as any other hospital in the area except in those areas prohibited by the Roman Catholic Church.

Mr. Reynolds testified that the basic mission of SVI is care for the ill and injured in a Christian environment. He also stated that while the purpose was secular in that SVI was not trying to educate people in the Catholic faith but deal with any and all health related problems, the motivation was religious. He also said very clearly that the religious motivation did not in any way negate the fact that SVI is viewed for licensure and other such purposes as a health care facility, not a religious institution, and absence of the religious motivation would in no way change its status as a hospital.

Mr. Oglesby testified that there was no real difference between SVI and other hospitals and there was no religious affiliation requirement connected with the hiring of 98% of the 2600 employees. He also said the hospital, though exempt from some provisions of ERISA, is still required to follow some of the provisions of that Act. Also, SVI is described as a general hospital in tax documents.

The United States Government imposes a tax on certain classes of employers. 26U.S.C.S. §§ 3301-3311. State unemployment insurance tax programs have been created because the federal law gives employers a credit against the tax for contributions made to federally approved state unemployment insurance tax programs. The history of this relationship is explained in Community Renewal Soc. v. Dept. of Labor, 439 N.E.2d 97 5 (Ill. App. 1982). Because of the relationship to the Internal Revenue Code, arguments are often made on the basis of interpretations of the basic federal law and other federal acts.

SVI argued that the IRS exemption as a “church plan” for ERISA purposes was evidence requiring exemption from the employment security requirements because of the similarity in the language of the controlling statutes. The ERISA exemption provides that a plan will qualify as a “church plan” if it is maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement or welfare benefits, or both for the employees of a church or convention or association of churches, if such an organization is controlled or associated with a church or convention or association of churches. 26 U.S.C.A. § 414 (e)(3)(A). “Associated” with a church simply means sharing common religious bonds and convictions with that church. 26 U.S.C.A. 414 (e)(3)(D). All § 414 (e)(3)(A) requires for an exemption is that the organization in question have as its principal purpose the administration of a qualified plan and also be associated with a church. The language is substantially different from that with which we are dealing here.

The proper focus of inquiry to determine the primary purpose of operation of SVI was stated in St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 781 (1981), quoting legislative history of the federal statute on which the law we interpret today was based:

Thus, the services of the janitor of a church would be excluded, but services of the janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes. H.R. Rep. No. 91-612, p. 44 (1969).

In the process of construing the meaning of the primary purpose limitation with organizational entities incorporated separately but religiously motivated the Supreme Court has provided some guidance. With reference to separate parochial schools the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), noted that church related primary and secondary schools have a “significant religious mission and that a substantial portion of their activities is religiously oriented.” Id. at 616. In Meek v. Pittenger, 421 U.S. 349, 365-366 (1975), the Court wrote:

[I] t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many . . . church-related . . . schools ....
[RJeligion is so pervasive that a substantial portion of its functions are subsumed in the religious mission. Id. at 365-66.

In recognition of the religious orientation of even separately incorporated entities courts have routinely exempted religious schools. See Nampa Christian Schools Foundation, Inc. v. State, 719 P. 2d 1178 (Idaho 1986); Community Lutheran School v. Iowa Department of Job Service, 326 N.W. 2d 266 (Iowa 1982). A test enunciated in the Nampa Christian Schools case is as follows:

The Commission made the finding of fact that “Nampa Christian could not exist as a private school without the moral support of those several churches [citation omitted, emphasis added in original].” Substantial and competent evidence supports this finding. We therefore may not set aside this finding of fact, [citations omitted] We hold that this type of support constitutes ‘principal’ support — if the school ‘could not exist’ without the churches’ support, it is dependent upon that support. Such dependency constitutes ‘principal’ support for purposes of I.C. § 72-1316 A(g) (1) (ii).
Our holding today is not broad. It does not mean that mere moral support offered by a church or group of churches to an organization operated for religious purposes will qualify that organization for tax exemption status under Idaho’s Employment Security Act. Rather, our decision states that before tax exemption status can be granted, the Commission must find as fact that such support is necessary for the religious organization’s continued operation.

Where the religion pervades the operation of the institution, exemption of the operation as one operated primarily for a religious purpose may be had. The evidence here did not establish that. The testimony made it clear that religion is involved in less than 1 % of the budget of the infirmary, no proselytizing takes place, and no religious requirements are involved in hiring and staffing decisions except with reference to 18 employees associated with the chapel.

The Court of Appeals relied upon Kendall v. Dir. of Div. of Emp. Sec., 473 N.E. 2d 196 (Mass. 1985), where the Supreme Judicial Court of Massachusetts determined that a separately incorporated mental health clinic owned and operated by a religious order for the purpose of providing education and training for mentally retarded children was exempt. The Massachusetts Board had found the institution exempt and the Court was asked to reject the Board’s definition of “primarily operated for a religious purpose.” The Court wrote:

At oral argument the claimant conceded that the Center’s operations are religiously motivated but argued that this motivation is distinct from the Center’s secular purpose, the education of the mentally retarded. We do not see a clear distinction between such motive and purpose. The fact that the religious motives of the Sisters of St. Francis of Assisi also serve the public good by providing for the education and training of the mentally retarded is hardly reason to deny the Center a religious exemption.

We disagree with the approach taken in the Kendall case. The Idaho Supreme Court in the Nampa Christian Schools case was able clearly to distinguish between religious motivation for the performance of a service and operation “primarily for religious purposes.” See also St. Augustine’s Center for American Indians, Inc., 449 N.E.2d 246 (Ill. App. 1983). We too are able to make that distinction.

The evidence in this case makes it clear that SVI is operated primarily for the purpose of providing health care although the sole motivation may be religious in nature. The Board of Review reached the following conclusions:

[T]he primary function of SVI is the commercial delivery of health care services as a hospital facility and medical institution and that the religious aspects are secondary. . . . Although SVI was founded by a religious order of the Roman Catholic Church, was first brought into existence through a religious motivation and for a specific religious purpose and mission, and remains under the control of the Church up to the present day, the essential function of the institution remains that of a hospital, infirmary and medical institution.

The record amply supports those factual conclusions. Given our interpretation of the statute in a manner separating motivation from purpose of operation, we hold the “operated primarily for religious purposes” exemption does not apply.

Reversed and remanded to the Arkansas Board of Review.


author: Tom Glaze, Justice.

text:
    W. William GRAHAM, Jr., On Behalf of Himself and Other Taxpayers and W. William Graham, Jr., Inc. v. FORREST CITY HOUSING AUTHORITY
    90-319
    803 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991.
    [Rehearing denied April 1, 1991.]

      Wright, Lindsey & Jennings, by: David M. Powell for appellant.

      Butler, Hicky and Long, by: Fletcher Long Jr., for appellee.
   Tom Glaze, Justice.

In September of 1990, the appellee, Forrest City Housing Authority, advertised a Request for Proposals (RFP) from engineering firms to prepare construction bid documents to correct a soil erosion problem in public housing facilities in Forrest City. Under the terms of the RFP, firms interested in the project were required to submit, along with other information, an estimated price for their services in order for them to be considered for the contract.

Appellant filed an action for declaratory judgment and injunctive relief on October 8,1990, asserting that any consideration of price prior to negotiations with the most qualified firm was in violation of Act 616 of 1989, codified as Ark. Code Ann. §§ 19-11-801 to -805 (Supp. 1989). Act 616 prohibits the use of competitive bidding in the procurement of professional services, including engineering services, by any political subdivision of the state. The chancellor below found that the RFP did not violate Act 616’s prohibition against competitive bidding and denied appellant’s request for injunctive relief. We reverse.

The legislative policy behind Act 616 is stated very succinctly as follows:

It is the policy of the State of Arkansas and political subdivisions that the state and political subdivisions shall negotiate contracts for legal, architectural, engineering, and land surveying services on the basis of demonstrated competence and qualifications for the type of services required and at fair and reasonable prices and to prohibit the use of competitive bidding for the procurement of professional services. (Emphasis added.)

Ark. Code Ann. § 19-11-801 (Supp. 1989).

The act further specifically provides that a political subdivision “shall not use competitive bidding for the procurement of professional services of a lawyer, architect, engineer, or land surveyor.” Ark. Code Ann. § 19-11-802(c) (Supp. 1989). Instead of competitive bidding, Act 616 requires firms to be evaluated and ranked solely on the basis of qualifications and capability to perform the desired work. The most qualified firm is then given the opportunity to negotiate a contract for the services at a fair and reasonable price. Ark. Code Ann. §§ 19-11-803 -804 (Supp. 1989).

The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990); In Re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). Further, when the wording of a statute is clear and unambiguous, the statute will be given its plain meaning. Cash v. Arkansas Comm’n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989).

There is no mistaking the intention of the legislature in this instance. Act 616 expressly and unequivocally prohibits the use of competitive bidding in the procurement of professional engineering services. It also prohibits the consideration of price in the procurement of professional services until the most qualified firms have been selected and negotiations have begun with the best qualified firm. See, Ark. Code Ann.' § 19-11-804.

The term “bid” generally refers to an offer to perform a contract for work and labor or supplying materials or goods at a specified price. Black’s Law Dictionary 147 (5th ed. 1979); see also United States v. Farina, 153 F.Supp. 819 (D.C.N.J. 1957). Furthermore, competitive bidding is defined as bids which are submitted as a result of public notice and advertising of an intended sale or purchase. Black’s Law Dictionary at 257. In the present case, appellee’s intended need was to acquire professional engineering services.

Here, the RFP advertised by appellee was clearly in the form of a solicitation for competitive bids. The RFP specifically reflects that responding engineering firms would be selected based on qualifications plus “price-based” criteria and that firms would be evaluated on the basis of “technical factors, including price.” Further, according to the express language of the RFP, appellee would select the most responsible firm “whose proposal is most advantageous to the program, with price and other factors considered.” Finally, the RFP set out seven “evaluation factors” and provided that any interested engineering firm must respond to each of those factors in order to be considered for the contract. One of those factors is price. There is no question that the RFP advertised by appellee is, on its face, in direct contravention of the legislature’s prohibition against competitive bidding for professional services.

Appellee argues, however, that any defect in the RFP is cured by the fact that price is not actually considered in ranking the top firms, and none of the firms are held to the quoted price once negotiations begin. Appellee also argues that this procedure is not in the nature of competitive bidding because it is not required to accept the lowest responsible bid as is the case in ordinary competitive bidding situations.

In the first place, if it is true that the prices submitted are not considered in ranking the firms, and ranked firms are not held to the prices submitted, then the notice requirement of submitting prices is rendered a nullity. In these circumstances, appellee offers no justifiable reason for employing an advertisement that facially violates the law by requiring price submissions prior to negotiations.

Further, appellee is, of course, correct in its assertion that it is not required to accept the lowest bid. That is exactly the scenario the legislature sought to avail when it passed Act 616. Presumably, the legislature wanted professional services to be procured on the basis of qualifications above all else without consideration of price until the firms were ranked and negotiations had begun. The interjection of price at any time prior to selecting the most qualified firms would seriously undermine this goal.

It should be noted that Act 616 does not require a political subdivision to accept the price finally offered by the most qualified firm during negotiations. The Act specifically provides for termination of negotiations with the top firm if the contracting authority is unable to negotiate a contract it considers fair and reasonable. The contracting authority then proceeds to the next most qualified firm and begins negotiations anew. See Ark. Code Ann. § 19-11-805. This process allows the contracting authority to negotiate the most fair and reasonable price with the most qualified firm in accordance with the stated policy of the legislature.

We reverse and remand with directions that appellee be enjoined from taking action regarding any proposals or contracts related to the advertisement of competitive bidding held contrary to law as discussed herein.


author:
Donald L. Corbin, Justice.
      Robert L. Brown, Justice,

text:
    S.G. CATLETT, d/b/a King’s Inn v. Fred STEWART, Lee Ann Stewart, and Steaven E. Miller
    90-78
    804 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991

      Huckabay, Munson, Rowlett & Tilley, by: Beverly A. Rowlett, for appellant.

      Kaplan, Brewer & Maxey, by: Philip E. Kaplan and Silas H. Brewer, Jr., for appellees Fred and Lee Ann Stewart.

      Wilson, Engstrom, Corum & Dudley, by: Timothy Dudley, for appellee Steaven E. Miller.
   Donald L. Corbin, Justice.

Appellant, S.G. Catlett d/b/a King’s Inn, appeals the denial of its motion for directed verdict in a jury trial which resulted in an award of damages to appellees Fred Stewart, Lee Ann Stewart, and Steaven E. Miller. We find no error and affirm.

The action arose out of a shooting that occurred February 9, 1986, on the premises of the King’s Inn in Searcy, Arkansas. Merle Fritts, the husband of Erma Fritts who was an on-duty employee of the appellant, shot the appellees following a domestic dispute with his wife. Appellees filed a negligence suit against appellant claiming that appellant had a duty of care to act reasonably in this situation and that appellant breached that duty vicariously through his employees. Appellant argued there was no duty owed to appellees or, in the alternative, the duty was satisfied by the actions taken by the employees. After receiving instructions relating to an ordinary duty of care, the jury returned a verdict awarding damages to appellees.

Appellant makes but one assignment of error in this appeal and that is the trial court’s failure to grant its motion for directed verdict. That is the sole issue before us. Because this case is somewhat confusing, perhaps it is equally important to state what appellant does not assign as error. Appellant does not challenge the giving of certain jury instructions regarding a duty of care.

Because, however, the concept of duty makes a peculiar appearance in this case, we feel it is important to relate some events that occurred at trial. After an objection by appellant to the giving of jury instructions relating to a duty of care, the trial judge made his determination of law that an ordinary duty of care was owed in this cáse. Because there was indeed a duty owed here, the trial judge was correct in denying the motion for directed verdict and then presenting the case to the jury for its determination of the various factual elements. The language of Adams v. Browning, 195 Ark. 1040, 115 S.W.2d 868 (1938), regarding the jury’s task of making factual determinations, was cited with approval in Pitts v. Greene, 238 Ark. 438, 382 S.W.2d 904 (1964), and bears repeating here:

“Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.”

Pitts, 238 Ark. at 441, 382 S.W.2d at 906.

That is what occurred in this case. The judge made a determination of law that appellant owed appellees an ordinary duty of care to act reasonably under the circumstances. The judge proceeded to instruct the jury on the remaining factual elements of negligence, and the jury rendered its verdict accordingly. Thus, the task before us in this case is to review the record, as it is presented to us by the parties and described in the preceding paragraph, and determine if there is sufficient evidence to support the jury’s verdict.

An appeal of a denial of a motion for a directed verdict is considered a challenge to the sufficiency of the evidence. Our standard of review in this situation is quite high indeed. We view all the evidence in the light most favorable to appellees, and if there is any evidence sufficient to warrant the verdict, we affirm the trial court’s refusal to direct a verdict. First Commercial Bank, N.A. v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987).

Generally, the facts of this case are not disputed by the parties. Rather, it is the interpretation of the facts that is disputed here. A review of the facts and all the evidence presented at trial as viewed most favorably to appellees reveals that there is sufficient evidence to support the verdict. Accordingly, we affirm the trial court’s refusal to grant a directed verdict.

The evidence reveals that Merle and Erma Fritts were married in 1983. Merle later became disabled by a heart attack and subsequent back surgery. Thereafter, he began to drink heavily. According to Erma, while he was drinking he was continually hitting her. On one occasion, he threw beer in her face and verbally abused her, forcing her to run to a neighbor’s home while he roamed outside with a gun. On another occasion, Merle choked Erma with such force that she had to seek medical treatment.

Merle Fritts appeared at the King’s Inn at about twenty minutes before 7:00 a.m. on the day of the shooting. He had a conversation with Nancy Blackshire, who was on duty as the desk clerk. Erma was scheduled to relieve her at 7:00 a.m. Ms. Blackshire testified that she could smell liquor on Merle’s breath. Prior to that morning, Erma told Ms. Blackshire that Merle drank heavily and that she was afraid of him when he was drinking. Ms. Blackshire was also aware of the parties’ divorce action.

Erma arrived at work at the King’s Inn at approximately 6:50 a.m. She observed that Merle appeared to be drunk or that something was wrong with him. She said she was not fearful until Merle indicated he was going to grab her by the hair of her head and drag her out of the motel. She said he had a wild appearance when he made this threat. He also threatened to blow her head off. She testified that she then asked Dub Throckmorton, manager of the restaurant next to the motel lobby and a life-long friend of Merle’s, to invite Merle in for coffee and to talk to him. She testified that she could have “eased in the back and used the phone but I didn’t think nothing about that.”

Throckmorton saw that Merle was angry and obviously intoxicated. He knew from previous experience that Merle was a troublemaker when he had been drinking. He said Erma asked him to call the police, but he did not because he thought she should. After Merle threatened to blow Erma’s head off, he talked with Merle for about twenty minutes. Each time he thought he had Merle calmed down, Erma would interject a remark that would again anger Merle, causing him to become more vulgar and abusive.

At about 7:20 a.m., after Throckmorton’s attempts to calm Merle, Merle left the restaurant, got a shotgun from his truck, and returned to the motel. Throckmorton observed Merle’s movements and asked appellee Fred Stewart, who was drinking coffee in the restaurant, to help him stop Merle. Stewart agreed and gave Throckmorton the telephone number of the police department. Merle entered the motel lobby and began shooting, severely injuring Fred Stewart and Steaven Miller. Throckmorton called the police who arrested Merle shortly after their arrival.

Twelve reasonable jurors, who lived in the community where the shooting occurred, acting under the instructions by the court, reached the reasonable conclusion that Erma Fritts did not meet her duty to exercise ordinary care to prevent the harm from occurring, a harm that in their judgment a reasonable person should or could have foreseen.

Generally, if there is any conflict in the evidence, or we find the evidence is not in dispute but is in such a state that fair-minded people might have different conclusions, then a jury question is presented, and a directed verdict will be overturned. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). It follows that the reverse is also true; if there is evidence about which fair-minded people might make different conclusions, then a jury question is presented and a denial of a motion for directed verdict will be affirmed. When applying the law set out above to the aforementioned factual situation in this case, we are unable to say there is no evidence of negligence on appellant’s part to support the jury’s verdict. Accordingly, we hold that, based on the evidence presented and instructions given to the jury, there was sufficient evidence to support the verdict for appellees. We therefore affirm the trial judge’s denial of appellant’s motion for directed verdict.

ANALYSIS OF NEGLIGENCE

The question of what duty, if any, appellant owed to the appellees is answered as early as the case of Ford v. Adams, 212 Ark. 458, 206 S.W.2d 970 (1947), where we recognized that a hotel is not an insurer of the safety of its guests, but that it is charged with the duty of taking all precautions for the protection of its guests which reasonable prudence and ordinary care would suggest. There, we established that as a matter of law the appellant hotel owed a duty of ordinary care to the appellees. Given the facts of this case, it is clear appellant owed appellees a duty of ordinary, care.

The determination of the remaining factual elements were within the province of the jury. See Stacks v. Arkansas Power and Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, 219 Ark. 294, 652 S.W.2d 2 (1983), (questions of causation and foreseeability may be questions of fact); Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S.W.2d 411 (1961), (the determination of the satisfaction of a duty of care is a question for the jury).

With respect to the foreseeability issue, appellant argues it was unforeseeable that Merle Fritts would act as he did on the morning in question. Appellees argue, on the other hand, it is not necessary that the particular kind of harm be foreseen. We agree with appellees. We held in Bergetz v. Repka, 244 Ark. 60, 63, 424 S.W.2d 367, 369 (1968) that:

“It is not,” . . . “necessary that the particular injury should have been foreseen. . . . ‘Doubtless the particular situation might not have been foreseen, but this was not essential to making out a charge of negligence. Accidents as they occur are seldom foreshadowed; otherwise many would be avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not.’ ”

Clearly, the fact that Erma Fritts did not foresee that Merle Fritts would use a gun and harm other people did not resolve the issue of Erma’s negligence. Her negligence is properly measured by whether a reasonable person would have foreseen a risk of harm in Merle’s conduct.

FIREMAN’S RULE

Within their argument, appellant argues that the “fireman’s rule” is applicable to appellee Stewart. This rule merely holds that fire fighters and police officers who enter premises in the execution of their official duties do so as licensees, under a privilege conferred by legal authority, usually under circumstances of emergency. Prosser and Keeton on the Law of Torts, § 61, pp. 429-431 (5th ed. 1984). We have not adopted this rule in Arkansas. Fred Stewart, in contrast, entered the King’s Inn on February 9 as a private citizen and business customer of the restaurant, for the purpose of drinking coffee, reading a magazine, and meeting friends, as he was accustomed to doing several times each week. Although Mr. Stewart was a constable for the city of Kensett, Arkansas, at the time of his injuries, his official authority and responsibilities did not extend beyond the limits of that township.

(a) Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.
(b) If any offense cognizable before a justice of the peace in his township is committed in his presence, the constable shall immediately arrest the offender ....

Ark. Code Ann. § 16-19-301 (1987).

Appellees contend that Fred Stewart had no legal authority or duty to arrest and restrain Merle Fritts, and his attempt to intercede when Fritts returned to the motel with a firearm was motivated entirely by humanitarian concerns, as the court properly instructed the jury. We agree.

Affirmed.

Newbern and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority result is troublesome in several respects. It finds a duty of care on Erma Fritts’ part owed to the restaurant patrons, when Erma testified she “never dreamed” Merle Fritts would hurt anyone other than herself. It expands the duty owed to include a police officer who was acting in an official capacity. And, lastly, the effect of this decision may well be to force employers to eliminate employees with problem spouses from their employment. Employers will certainly begin to screen potential employees for spousal controversy.

The facts are set out by the majority, although I have added to them. Merle has a history of violent behavior toward Erma and was verbally and physical abusive toward her. On one occasion he threw a beer in Erma’s face and called her “a bunch of names,” and she took refuge in a neighbor’s trailer. She testified that while she was in her neighbor’s trailer, Merle was “marching outside with a gun.” Another time, she said he choked me “real bad, and so I had my neighbors to take me to the doctor.” On still another occasion he pushed her down on a dance floor. She admitted that her husband was dangerous where she was concerned.

On Friday, February 7,1986, Erma filed for divorce against Merle, and the court issued a restraining order on that same date. Erma and Merle, however, spent the night together. The following night, Saturday, February 8,1986, Erma and a female friend visited several clubs, avoiding those where Merle was likely to be. The next morning, Sunday, February 8,1986, was the morning of the shooting.

At about 6:50 a.m. that morning, Erma arrived at her job as front desk clerk at the motel. Merle was waiting for her, and she observed that it “appeared that he was drunk or something was wrong with him.” Merle first told her that she was “pretty this morning,” but then accused her of having been “out with some men” the night before and threatened to pull her out of the motel “by the hair of the head.”

Erma went across the motel lobby and into the adjoining restaurant to get help from Dub Throckmorton, who was leasing the restaurant from the motel owner, appellant S.G. Catlett. According to Throckmorton she asked him to “call the police, that Merle was threatening her.” She also asked Throckmorton, who was a friend of Merle’s, to induce her husband to go to the restaurant for coffee “because I’m afraid he’s going to cause me trouble in here.” When Throckmorton intervened, Merle became belligerent, declaring, “You’re not big enough to take me anywhere.” He looked at Erma and said, “You see her. I’m going to kill her.” This statement, however, did not “upset” Erma because “he had told me before he was going to kill me.” Nevertheless, according to her testimony, she suggested to Throckmorton that perhaps he should “call the law on him.” Throckmorton and Erma talked to Merle for twenty minutes, and Erma pleaded with him to leave. This only made him madder. Finally, they appeared to succeed, and Merle left the motel.

Other witnesses in the adjoining restaurant testified that during the 20 minutes or so of wrangling, Merle used other abusive and profane language. Appellee Fred Stewart, a constable for White County and a regular customer at the restaurant who was having his usual coffee that morning, testified that Merle pointed his finger at Erma and said, “You know I mean what I say. I’ll blow your f-head off.” After making the remark, Stewart said Merle “turned and walked off.” Stewart did not take the comment seriously. He said, “I thought they had a little problem.”

Appellee Steaven Miller also heard the threatening language about blowing Erma’s head off and chose to ignore it.

Throckmorton and Erma watched from the restaurant window as Merle walked to his truck. Throckmorton thought Merle appeared calm as he was leaving. Once he reached his truck, though, Merle opened the door, removed a shotgun, and began walking back toward the restaurant. Throckmorton at that point called on appellee Stewart for help. Stewart then described what happened:

At that time, if I recall right, Dub [Throckmorton] was on the phone. I said, “call the police,” and gave him the number, and he came over by me and I was taking my gun out of my boot, and he said, “Can you help?” And I said, “I’ll try.” We watched the man walk by here and I went out in the lobby here past these gates to stand at the corner right here to stop him before he got into the restaurant . . . . I stood here. I watched this man come in here. When he got about four or five feet from me, I said, “Police officer, drop your gun.” And the next thing I knew I was hearing a noise in my head like a loud banging noise. . . .

As a law enforcement officer in Arkansas, Stewart was authorized to carry a firearm. He testified that he felt a duty to act as a police officer to prevent violence. He further testified that “if you see a felony in progress anywhere you are going to have to take some action.” He understood “somewhat” that he was undertaking a risk and voluntarily did so.

Duty Owed

Our case law is clear that in any analysis of negligence we should answer the following questions:

1. What duty, if any, did Catlett owe to Stewart and Miller?

2. Was that duty breached?

3. Could Catlett have reasonably foreseen that such a breach would cause the injury suffered by Stewart and Miller?

4. Did the negligent act of Catlett cause the injury or was it a substantial factor in the cause of the injury?

Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). In Keck we further said that “what duty is owed is always a question of law and never one for the jury.” 279 Ark. at 298, 652 S.W.2d at 4; citing W. Prosser, Law of Torts, § 45. Questions of foreseeability and causation, however, may be ones of fact, depending on the case. Id. In Keck we found an employment agency negligent for making no check on one of its customers (Joiner) who abducted and raped a potential employee, Mrs. Keck. In analyzing that case we said, “If the agency could not have foreseen any risk in referring Mrs. Keck to Joiner, it was not negligent because negligence cannot be predicted on a failure to anticipate the unforeseen.” 279 Ark. at 299, 652 S.W.2d at 5.

Here we are dealing with the unforeseen and the duty to protect restaurant patrons against the unforeseen. (And though it was not argued on appeal, it should be noted that the restaurant leased by Throckmorton is a separate legal entity from the motel owned by Catlett.) Erma did not owe a duty to Stewart and Miller to protect them against her husband, when she had no inkling that they were in harm’s way until it was too late.

This is not a case where the defendant argued that a particular injury was not foreseen and, accordingly, there should be no liability. See Bergetz v. Repka, 244 Ark. 60, 424 S.W.2d 367 (1968). Rather, it is a case where no one, including Erma and Throckmorton, foresaw the general potential for injury to patrons of the motel or restaurant which resulted from Merle’s presence.

Erma’s history with Merle never suggested that he might be a danger to persons other than herself. She was asked about this repeatedly at trial, so much so in fact that it raised an objection from counsel. In one exchange she said:

Q. You knew also at that time that at your place of employment you had some special responsibility to others, didn’t you, to those who were there doing business?
A. Sir, I never dreamed of him hurting anybody else so, therefore, I didn’t because I never thought about him being, getting anybody else.
Q. Okay, so you never even thought about that?
A. I sure didn’t.

And all of the testimony at trial bore her out. She obviously foresaw no danger to others, but that could, arguably, be a subjective assessment. What confirms the objectivity of the assessment, however, is the fact that Merle’s friend, Dub Throckmorton, who knew him well and who spent twenty minutes with him immediately before the shooting, did not foresee danger to third parties. Otherwise, he would have called the police. And, finally, neither of the appellees — and they had overheard Merle’s abusive talk to Erma — foresaw a problem. Under the circumstances it is difficult to fathom how her personal experience with Merle fostered a duty to restaurant patrons when she never anticipated he would do such a thing and when, according to everyone who testified, he had never acted violently toward other parties before.

Breach of Duty

Moreover, assuming Erma owed a duty to patrons of the restaurant, what more could she have done to satisfy that duty than what she did? She went to Merle’s friend, Throckmorton, and asked that he call the police. She did not call the police herself but that is understandable when an abusive husband was watching her every move. She also asked Throckmorton to give Merle some coffee and try to get him to leave the premises. And she personally pleaded with Merle to leave for 20 minutes, placing herself in a fearful and embarrassing position in the process. She did everything that reasonably could have been expected under any objective standard.

Duty Owed to Police Officer

What precipitated the tragic shooting was the bravery of appellee Stewart. By his own admission Stewart felt a duty to act as a law enforcement officer and was called on to act in that capacity by Throckmorton. He understood to some extent that he was placing himself at risk but voluntarily chose to do so. With this in mind he left the restaurant and went into the motel lobby where he confronted Merle with gun drawn and said: “Police officer — drop your gun.” His actions were completely laudable and commendable.

Catlett took steps to assert a Fireman’s Rule defense. He first asked for a directed verdict at the conclusion of appellees’ case on the basis that by drawing his weapon and placing himself in Merle’s path, Stewart was acting voluntarily as a law enforcement officer, and no duty was therefore owed him. The motion was denied. Catlett’s motion was renewed at close of trial but also denied. Catlett further objected to one of appellees’ requested instructions on the basis that Stewart was acting as a law enforcement officer and “his status as an invitee was severed when he assumed his duty. . . .” The instruction was given anyway by the trial court.

Arkansas has not formally adopted the Fireman’s Rule, which, simply stated, renders public safety officers who enter upon the premises in their official capacities licensees to whom no duty is owed by the owner of the premises other than a duty to refrain from intentional, willful, or wanton misconduct. Prosser

& Keaton on Torts, § 61, p. 429 (5th Ed. 1984). I do not suggest that we generally adopt the Fireman’s Rule today. However, appellees’ primary claim of negligence against Catlett is his employee, Erma, was knowledgeable about Merle’s dangerous propensities, and she failed to call the police herself. It seems inconsistent for one of the appellees, an activated police officer on the premises who intervened on Erma’s behalf, to make this claim of negligence. What we have is a police officer, Fred Stewart, who is shot protecting Erma, arguing that she was negligent for not calling the police herself. This result is highly illogical.

Innkeepers do have a special relationship with their patrons and owe them a duty to exercise reasonable care. Prosser & Keaton on Torts § 61, p. 425 (5th Ed. 1984); Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861 (1906); Lopez v. McDonald, 238 Cal. Rptr. 436, 193 Cal. App. 3d 495;(1987). But where dangers are so highly extraordinary or improbable as to be wholly beyond the range of expectability, the liability of the innkeeper should not attach. See Jones v. Leon, 3 Wash. App. 916, 478 P.2d 778 (1970). Who best would know about the high improbability of what Merle did other than Erma, his wife, and his friend, Throckmorton? High improbability is exactly what we have in this case. Under such circumstances no duty is owed the restaurant patrons. Id.

Moreover, the duty a landowner owes to his invitees is not absolute, and it does not extend to conditions where an unreasonable risk cannot be anticipated. Restatement (Second) Torts § 343A, p. 218; Prosser & Keaton on Torts § 61, pp. 425-427 (5th Ed. 1984).

There is, too, an important public policy consideration here which the majority fails to consider. We are telling employers by this decision that they must examine the private lives of their employees to avoid liability. That places an incredibly heavy burden on restaurant owners who now must make the investigation into potential spousal abuse of their employees and an even heavier burden on the employees themselves who might lose their jobs in the process.

Motion for Directed Verdict

Appellant Catlett moved for a directed verdict at the close of appellees’ case and at the close of his defense as well. The trial court denied the motion. In reviewing a trial court’s decision on directed verdict motions, we have held that we must give the evidence of the prevailing party its strongest probative force in determining whether a jury question exists on the negligence issue. See Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988); Harper v. Mo. Pac. Rd. Co., 229 Ark. 348, 314 S.W.2d 696 (1958). In a subsequent case the Arkansas Court of Appeals has said, “. . . a directed verdict is proper only when the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside.” Prudential Ins. Co. v. Williams, 15 Ark. App. 94, 96-97, 689 S.W.2d 590 (1985). In Williams the focus on appeal was whether there was substantial evidence to support plaintiffs loss of sight independently of cataract surgery. Whether evidence is substantial or not is a question of law. Findley, Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980). The court of appeals, in Williams, went on to define substantial evidence as:

\ . . evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.’ Ford on Evidence, Vol. 4 § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent references.’

15 Ark. App. at 97, 689 S.W.2d at 592, quoting Findley, Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980) and Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). The issue presented to the trial court was whether the hemorrhage causing the loss of sight resulted from the surgery or not. The trial court refused to direct a verdict for the defendant, and the court of appeals reversed, concluding that the plaintiffs evidence raised nothing more than suspicion in the jurors’ minds.

The administration of rules of law and the determination of facts upon which there could be no reasonable difference of opinion are matters left to the courts. Prosser & Keaton on Torts § 45, pp. 319-320 (5th Ed. 1984). In three foreign jurisdictions where assaults occurred on a landowner’s premises the appellate courts sustained either a directed verdict or judgment n.o.v. in favor of the defendant landowner. People v. Lodge, 418 N.W.2d 381 (Mich. 1988); Harvey v. Van Aelstyn, 319 N.W.2d 725 (Neb. 1982); Jones v. Leon, 3 Wash. App. 916, 478 P.2d 778 (1970).

The Jones case most closely approximates the facts in this case. A boyfriend (Bird) had slapped his girlfriend (Vicki) in a tavern two weeks before the shooting in question, and the tavern owners knew it. Vicki told Bird that she no longer wished to continue the relationship, and Bird proceeded to get intoxicated. Vicki went to a restaurant where she once worked as a part-time barmaid and told the manager to call the police, if he saw Bird. She also told the manager that Bird had threatened to kill her. Bird entered the restaurant later that evening, saw Vicki dancing with the plaintiff, and after a brief conversation shot the plaintiff. The Washington Court of Appeals affirmed the trial court’s directed verdict and noted that Bird had a violent temper. The court then continued:

However, the term “violent temper” is not precise, but one of degree. We do not believe it can be inferred from this incident that Bird’s temper was so violent and uncontrollable that it was reasonably foreseeable to the respondents that he would use a gun under similar circumstances. There is no evidence, nor inference from evidence, that respondents had knowledge of any propensity of Bird to use a gun.

478 P.2d at 783. The same reasoning should apply to this case.

There was ample proof that Merle was dangerous as far as Erma was concerned but no proof that he was dangerous to others. His shooting appellees was wholly unexpected by Erma and Throckmorton, who knew him best and who visited with him for twenty minutes before the shooting. There is no duty of care where the wholly unexpected is involved. And that is what occurred. Here the evidence introduced to prove Merle’s propensity to harm others does not rise above the level of conjecture and suspicion.

I would reverse on grounds that the trial court erred in failing to direct a verdict in favor of the appellant Catlett. The duty of care owed to appellees by Catlett was simply not established under the facts of this case.

Newbern, J., joins in this dissent.


author: Donald L. Corbin, Justice.

text:
    Kathryn MEDLOCK v. FORT SMITH SERVICE FINANCE CORPORATION
    90-340
    803 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991

      Michael J. Medlock, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellee.
   Donald L. Corbin, Justice.

Appellant, Kathryn Medlock, appeals from the order entered June 22, 1990, awarding summary judgment to appellee, Fort Smith Service Finance Corporation. Appellee, the assignee of a hospital account from Sparks Regional Medical Center, on November 3,1989, filed suit against appellant and her husband, John Ervin Medlock, Jr., to recover for medical “goods and/or services” provided to Mr. Medlock by Sparks. Although appellant filed a timely answer to the complaint, Mr. Medlock did not answer and on January 30, 1990, the court entered a default judgment against him. On March 22, 1990, a writ of execution was issued; the Sheriffs Return, which was dated the same day, stated, “sent back - defendant J.E. Medlock has nothing of value in his name to levy on.” Appellee, on March 19, 1990, filed a motion for summary judgment against appellant. At a hearing on the motion appellee argued that the common law doctrine of necessaries should be applied to hold appellant liable for the account as the wife of John Ervin Medlock. The doctrine of necessaries provides that the husband is liable to a creditor for necessaries furnished to his wife.

See Arkansas State Hospital v. Kestle, 236 Ark. 5, 364 S.W.2d 804 (1963); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). We note that under Arkansas common law the wife has not been held to be similarly liable. In fact, prior to the enactment of 1915 Ark. Acts 159, a married woman was not even liable on her own contracts. See Warner v. Hess, 66 Ark. 113, 49 S.W. 489 (1899). Regardless, the court granted appellee’s motion.

Appellant argues that the trial court’s decision was clearly against the preponderance of the evidence and its granting summary judgment was error as a matter of law. She contends there is no basis in law for finding her liable for the debt.

Appellee, on the other hand, insists the equal protection clause of the United States Constitution requires that we extend the liability of providing necessaries to the wife. The United State Supreme Court has indicated it will strike down all gender based laws which do not serve a legitimate governmental purpose and are reasonably designed to accomplish that purpose. See Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). However, for a litigant to have standing to challenge the constitutionality of a law, it must be unconstitutional as applied to him. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The general rule is that one must have suffered injury or belong to a class which is prejudiced in order to have standing to challenge the validity of a law. Stokes, supra. Constitutional rights are personal rights and may not be raised by a third party, although there is a narrow exception for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988). The exception does not apply here; appellee, therefore, does not have standing to raise the equal protection issue.

When raised by an appropriate party, other jurisdictions have considered and decided issues pertaining to the common law doctrine of necessaries and its relation to statutory provisions governing marital rights and obligations. See Cleveland Metro. Gen. Hosp. v. Oleksik, 38 Ohio App. 3d 21, 525 N.E.2d 831 (1987); Schilling v. Bedford City Mem. Hosp., 225 Va. 539, 303 S.E.2d 905 (1983). On the facts before us, however, we see no need to address either the question of whether the common law doctrine of necessaries is actually in force in Arkansas any longer or, if it is, whether the equal protection clause requires that it be extended to make the wife liable for necessaries provided to her husband. Assuming, without deciding, the viability of the doctrine, the question presented on appeal is limited to whether the trial court was correct in extending to a wife the long-standing common law duty to provide necessaries. As this is an issue most appropriately resolved by the legislature, rather than the judiciary, we cannot say that it was. Thus, for appellee to prevail, there must be some other legal basis for finding appellant liable.

Appellant asserts that although appellee offered an itemized list of services rendered to her husband, there was nothing offered to evidence an agreement or contract between her and either appellee or appellee’s assignor for such services. She relies on Ark. Code Ann. §§ 9-11-501, 508 (1987) in arguing that only where such a contract exists would she be liable for the cost of the services.

The Arkansas General Assembly in Act 873 of 1981 amended several sections of our family law statutes. The intent of the legislature as expressed in the Act was “to Remove Specific References of Gender and to Allow One Spouse to Protect His or Her Personal Property from the Creditors of the Other Spouse by Listing it with the County Recorder; and for Other Purposes.” The Act, as codified in part at section 9-11-508, states:

No bargain or contract made by any married person, in respect to his or her sole and separate property... and no bargain or contract entered into by any married person, in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon his or her spouse, or render his or her person or property in any way liable therefor.

Ark. Code Ann. § 9-11-503 (1987) states:

(a) A married person may bargain, sell, assign, and transfer his or her separate personal property, carry on any trade or business, and perform any labor or services on his or her sole and separate account.
(c) He or she may sue alone or be sued in the courts of this state on account of the property, business, or services.

Clearly, the law in Arkansas provides that a married person can contract in his or her own right; he or she can sue or be sued in his or her own right. In addition, the statutes are designed to enable married women to contract and enjoy all rights and responsibilities as if they were feme sole. See Ark. Code Ann. § 9-11-502 (1987).

A review of the record reveals that appellee offered no evidence of a contract or agreement between it, or its assignor, and appellant. We find no legal basis for holding appellant liable for the “goods and/or services” provided to her husband absent a contractual agreement. As there is no evidence that appellant agreed in any way to be responsible for the debt in question, we reverse and dismiss.


author: Donald L. Corbin, Justice. Donald L. Corbin, Justice.

text:
    Stephen J. PHILLIPS v. STATE of Arkansas
    CR 90-301
    803 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991
    [Supplemental Opinion on Denial of Rehearing April 1, 1991.]

      E. Kent Hirsch, for appellant.
    , Steve Clark, Att’y Gen., by. Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Stephen J. Phillips, on October 25,1989, was convicted of DWI, first offense, and two counts of manslaughter. For the DWI conviction he was fined $250.00, his license was suspended for 120 days, he was required to go to DWI school, and he received a six month suspended sentence. For each manslaughter conviction appellant was sentenced to serve three years in the Arkansas Department of Correction, the terms to be run consecutively, and was fined $10,000.00. In this appeal, he raises five points for reversal. We find no error and affirm.

On June 28, 1987, appellant was driving and had a head-on collision with another car. Two passengers in the other car were killed. That same day he was charged with DWI, a violation of Ark. Code Ann. § 5-65-103 (1987). On September 30, 1987, he was convicted of that charge in municipal court and thereafter appealed it to circuit court. On the day appellant was convicted for DWI he was charged with two counts of manslaughter for the deaths of the passengers in the other car. A jury trial was held October 25, 1989, and ended in the aforementioned convictions. It is from the judgment of conviction that this appeal comes.

Appellant asserts the trial court failed to advise him, as required by Ark. R. Crim. P.36.4, that if he wished to raise claims of ineffectiveness of counsel he must file a motion for a new trial within thirty days stating such ineffectiveness as grounds. He contends that, because of the trial court’s failure, his sentence was illegally imposed, requiring that it be remanded for proper sentencing or dismissed. Under the circumstances here we cannot agree.

The relevant part of Ark. R. Crim. P. 36.4 is as follows:

The trial judge must address the defendant personally and advise the defendant that if the defendant wishes to assert that his or her counsel was ineffective a motion for a new trial stating ineffectiveness of counsel as a ground must be filed within thirty (30) days from the date of pronouncement of sentence and entry of judgment.

Appellant was convicted of the manslaughter charges on October 25,1989. On November 3,1989, the trial court imposed sentence and advised appellant of his right to appeal. On November 15, 1989, his trial attorney, the second of three attorneys who represented him during the course of this case, filed the notice of appeal. On December 1, 1989, a notice of employment of substitute counsel was filed along with a motion for either an arrest of judgment or a new trial, or, in the alternative, to correct an illegally imposed sentence. The trial court’s failure to advise appellant according to Rule 36.4 was asserted as the only ground for the requested post-conviction relief.

Appellant argues that he was prejudiced by the trial court’s failure to correctly advise him of his right to raise a claim of ineffectiveness of counsel in that his trial counsel should have filed a motion for a speedy trial. We fail to see that he was prejudiced. In Preston v. State, 303 Ark. 106, 792 S.W.2d 599 (1990), we stated that where the trial court failed to advise Preston personally of the necessity of asserting ineffective assistance of counsel within thirty days, no prejudice resulted from the trial court’s noncompliance with Rule 36.4. Here, appellant’s knowledge of the action required for seeking such post-conviction relief is evidenced by the motion for new trial he filed on December 1 and the very basis for that motion. Nevertheless, appellant failed to include in his motion any specific allegations of ineffectiveness of counsel, such as the failure to file a motion for a speedy trial. Because appellant failed to assert his claims for ineffective assistance of counsel in his motion, he waived any such argument. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990).

Appellant contends the circuit court improperly entered judgment and sentence for DWI in that neither was there a jury verdict on that charge nor did he personally plead guilty to it.

Appellant’s attorney, on October 25, 1989, before the jury was selected, approached the bench and stated, “[c]omes now the defendant, Stephen Phillips, and stipulates that he was .12 blood alcohol content by blood test and stipulates that the Court may use that evidence to find him guilty charging him DWI first offense.” The proceedings continued with the trial court’s telling the jury panel that the trial that day was for two separate counts of manslaughter. After reading the jury verdicts for the manslaughter charges and postponing formal sentencing on those, the court said:

As to the misdemeanor charge, the defendant had previously entered a plea of guilty. The Court adjudges him guilty of Driving While Intoxicated. He’ll be fined the sum of $250 together with costs. That will be paid within 60 days. His license to drive will be suspended for 120 days. He’ll be required to go to DWI school. He will receive a six month sentence, suspended sentence, on that charge.

The trial court imposed judgment and sentence for the DWI charge on a plea of guilty. Appellant did not object to the trial court’s action at that time of sentencing, but, in his motion for new trial, he did state that his sentence was illegal. However, the record fails to reflect the trial court ruled on this issue so as to preserve it on appeal.

Clearly, the trial court had jurisdiction to accept guilty pleas to DWI charges and to impose the type sentence it did in this case. See Omnibus DWI Act, [Ark. Code Ann. §§ 5-65-104(a)(4), 111(a), 112, 113(a), and 115(a) (1987 & Supp. 1989)].

Appellant in his other three points argues the trial court erred by imposing sentence on the DWI conviction before receiving a presentencing report, by removing the determination of the amount of restitution from the jury, and by not ordering a specific dollar amount of restitution. We must summarily dispose of each of these points because appellant failed to object or raise these arguments below. See Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

Affirmed.

Donald J. Adams, for appellant.

Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

APRIL 1, 1991

Donald L. Corbin, Justice.

Appellant files a petition for rehearing stating that, after he filed his brief on appeal, the United States Supreme Court decided Grady v. Corbin, _ U.S. _, 110 S. Ct. 2084 (1990). In Grady the Court held that “[t]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Appellant contends that under the authority of Shea v. Louisiana, 470 U.S. 51 (1985), the ruling in Grady should be applied retroactively. In Shea, the petitioner raised the relevant issue in his direct appeal to the Supreme Court of Louisiana. However, in the case at bar, appellant first raises the Grady issue in this petition for rehearing.

It is well established that where an argument is not presented below, it will not be considered on appeal. Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). Additionally, issues not argued on appeal are considered abandoned. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). A review of the record reveals that appellant made no double jeopardy argument either at trial or in his brief on appeal. Although Grady was decided during the time appellant’s direct appeal to this court was pending, in order to argue the Grady issue now, he is required to have argued it below.

Petition denied.

       Although we cannot consider whether or not appellant’s sentence was illegally imposed, we note that Ark. Code Ann. § 16-90- 111 (b) (Supp. 1989) provides the court may reduce a sentence within 120 days after the sentence is imposed or within 120 after the receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. (Emphasis supplied.) See State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990).


text:
    Sam SEXTON, Jr. v James A. NEAL, Executive Director of the Arkansas Supreme Court Committee on Professional Conduct
    90-348
    803 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991

      Sam Sexton, Jr., pro se.

      Winston Bryant, Att’y Gen., by; R.B. Friedlander, Solicitor Gen., for appellee.
   Donald L. Corbin, Justice.

This is the fourth appeal which appellant, Sam Sexton, Jr., has made from the order of the Arkansas Supreme Court Committee on Professional Conduct. Mr. Sexton’s previous appearances are styled as: Sexton v. Supreme Court Comm. on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989), cert. denied, 110 S. Ct. 1782 (1990), [case number 89-73]; Sexton v. Supreme Court Comm. on

Professional Conduct, 297 Ark. 154A, 761 S.W.2d 602 (1988) [case number 88-175]; Sexton v. Supreme Court Comm, on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988) [case number 87-272], We affirm.

On February 22, 1989, the Arkansas Supreme Court Committee on Professional Conduct, (the Committee), entered an order suspending the law license of Sam Sexton, Jr., for a period of twelve months. The Committee stayed the effect of its action pending an appeal to this court. On July 10, 1989, this court affirmed the action of the Committee. Sexton v. Supreme Court Committee on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989). A petition for rehearing was denied and on September 11, 1989, this court issued a mandate which stated in its entirety:

Appellant’s motion for stay of mandate is granted for 90 days pending appeal to U.S. Supreme Court.

On January 8, 1990, the Committee received a copy of Mr. Sexton’s petition for writ of certiorari to the United States Supreme Court and the Committee filed a response on March 8, 1990. On April 2, 1990, the United States Supreme Court informed all parties of its decision to deny certiorari. Upon receipt of the notification of the denial of certiorari, this court issued a mandate on April 6, 1990. That mandate was an expression of affirmed law in case number 89-73. The appeal to the United States Supreme Court having been completed, the April 6 mandate was issued as the final expression of this court affirming the Committee’s twelve-month suspension of Mr. Sexton.

In addition to receiving notice from this court of our mandate of April 6,1990, Mr. Sexton, on April 30,1990, received notice from the Committee of the April 6 mandate. Accompanying this notice from the Committee was a request that he comply with Rule 11 of the Rules of the Court Regulating Professional Conduct of Attorneys. Rule 11 specifies the procedure which a disbarred or suspended attorney must follow when withdrawing from the practice of law. Mr. Sexton informed the Committee of his compliance with Rule 11 on May 3, 1990.

On September 6,1990, Mr. Sexton filed with the Committee a petition for reinstatement. On November 2,1990, the Committee advised Mr. Sexton that it had refused to consider his petition because it was “filed untimely.”

On this appeal, Mr. Sexton claims his petition for reinstatement was timely filed on September 6, 1990, in that his suspension terminated on December 11, 1989. The thrust of Mr. Sexton’s argument is that the mandate of this court dated September 11, 1989, became effective automatically 90 days later on December 11, 1989, and that his one year suspension ended automatically on December 11, 1990.

It is interesting to note that Mr. Sexton does not assert he relied on the December 1989 date to his detriment and accordingly ceased his practice that date. Mr. Sexton did nothing to notify the Committee of his withdrawal from the practice of law. It was not until May 3,1990, following our April 6,1990 mandate and a written request by the Committee for compliance with Rule 11, that Mr. Sexton indicated he was no longer practicing and had complied with Rule 11.

We think it is clear that our September 11, 1989 stay of mandate did not terminate until Mr. Sexton’s appeal to the United States Supreme Court was completed. The conduct of the parties involved in this appeal so indicates. Mr. Sexton did not comply with the Rule 11 procedures for withdrawal from the practice of law until the writ of certiorari was denied. Had the Committee interpreted the September 11,1989 stay as terminating on December 11, 1989, rather than on the completion of the appeal to the United States Supreme Court, it could have notified Mr. Sexton of his failure to comply with Rule 11 and initiated contempt proceedings against him. See Rule 11(9). Instead, the Committee, like Mr. Sexton, did nothing until the appeal to the United States Supreme Court was completed.

We find that Mr. Sexton will be eligible for reinstatement to the practice of law on April 6, 1991. This is exactly one year from the date of the issuance of our April 6, 1990 mandate which Mr. Sexton never challenged. The April 6,1990 mandate was the last expression by this court.

Finally, we point out that we will not consider Mr. Sexton’s due process claim with respect to Rule 7(E) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, 303 Ark. 725, 792 S.W.2d 323 (1990). Mr. Sexton’s suspension has not yet terminated; his claim that Rule 7(E) could effectively extend his suspension is therefore not ripe for consideration.

Affirmed.


author: Per Curiam.

text:
    Edward Allen CHAMBERS v. STATE of Arkansas
    CR 90-242
    803 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered February 25, 1991

      Appellant, pro se.

      Ron Fields, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Edward Chambers was found guilty by a jury on May 6, 1987, of aggravated robbery with a deadly weapon and sexual abuse in the first degree. He was sentenced as a habitual offender to consecutive terms of life and thirty years imprisonment. We affirmed. Chambers v. State, CR 87-144, (December 14, 1987). Appellant subsequently filed a petition for post-conviction relief in this court pursuant to Criminal Procedure Rule 37. The petition was denied. Chambers v. State, CR 87-144, (February 8, 1988). Appellant also filed a petition for writ of habeas corpus in the trial court which was denied. The denial of relief was affirmed by this court. Chambers v. State, CR 90-54, (June 4, 1990).

On June 26,1990, appellant filed in the trial court a petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (Supp. 1989). In the petition he alleged that (1) the sentence imposed for sexual abuse was excessive, and thus illegal, because he had not been convicted of four prior felonies as the state contended at trial; (2) he was arrested illegally; (3) there was no probable cause to charge him with aggravated robbery; (4) the evidence was insufficient to establish sexual abuse; and (5) he was not afforded effective assistance of counsel at trial. The trial court noted that although the petition was styled a petition for reduction of sentence, it asserted the same issues raised in earlier pleadings under Criminal Procedure Rule 37. The court denied the petition as untimely. Appellant now seeks appointment of counsel.

The motion is denied and the appeal dismissed because it is clear that there was no merit to the petition filed in the trial court. This court- has consistently held that counsel will not be appointed to pursue a meritless appeal. Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) and Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).

As the appellant raised issues which were cognizable under Criminal Procedure Rule 37, the trial court was entitled to treat the allegations under Rule 37. Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). We agree with the trial court that, considered under Criminal Procedure Rule 37, the petition was untimely. Where a petitioner raises no issue which, if found meritorious, would render his conviction absolutely void, a Rule 37 petition is untimely if not filed within three years of the date of judgment. Rule 37.2(c); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). The allegations in the petition filed in trial court were not sufficient to establish that the judgment was void. Moreover, Rule 37.2(b) provides that all grounds for relief available to a petitioner under the rule must be raised in his original petition unless the original petition was denied without prejudice to filing a second petition. Appellant did not receive permission to file a subsequent Rule 37 petition. Thus, the petition was not only untimely but also subject to dismissal as an unauthorized second petition.

Furthermore, even if the petition filed in the trial court were considered under Ark. Code Ann. § 16-90-111 (Supp. 1989), which provides a means to correct an illegal sentence, the petition was untimely. The statute provides a narrow remedy whereby the trial court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within one-hundred-twenty days after the sentence was imposed or within one-hundred-twenty days after receipt by the trial court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. The mandate issued upon affirmance in this case on January 4, 1988. Appellant did not file his petition in the trial court until 1990, which was more than one-hundred-twenty days after the mandate issued. After the one-hundred-twenty days period for filing a petition elapses, relief is not available under the statute unless the petitioner demonstrates that the sentence imposed was illegal on its face. Williams, 291 Ark. 255, 724 S.W.2d 158; Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). As the allegations of error raised in the trial court were not sufficient to establish that the judgment was illegal on its face, the petition could have been dismissed if treated as a petition pursuant to Ark. Code Ann. § 16-90-111.

Motion denied and appeal dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    JoAnn CROSS v. James and Helen COFFMAN
    90-241
    805 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      Guy Jones Jr., for appellant.

      George Hartje, for appellee.
   Jack Holt, Jr., Chief Justice.

The sole point of error relied upon by the appellant, JoAnn Cross, is whether the trial court erred in dismissing her independent cause of action for wrongful discharge under Ark. Code Ann. § 11-9-105 and 107 (1987) asa matter of law.

On November 17, 1986, Ms. Cross allegedly suffered an injury during the course of her employment at a business owned or operated by the appellees, James and Helen Coffman. Ms. Cross reported the injury to the Coffmans and later made a claim for workers’ compensation benefits. The Coffmans subsequently discharged Ms. Cross from their employment.

Ms. Cross filed suit against the Coffmans on September 30, 1988, and alleged that they “. . .jointly, severally and in concert, fired, terminated or discharged [her] from her employment for filing, pursuing or exercising her legal right to secure and obtain Workers’ Compensation benefits directly in violation of the Arkansas Workers’ Compensation Act and the public policy of the State of Arkansas." (Emphasis ours.)

On May 18, 1990, the trial court granted the Coffmans’ motion to dismiss and stated in pertinent part as follows:

On January 19, 1990, came on the above matter for hearing upon Defendants’ Motion and, from discussion with the court, stipulations of counsel which are incorporated herein by reference, this Court, does hereby FIND, ORDER, AND ADJUDGE:
* * * *
5. . . . Further, the Court finds that section 35 of the Workers’ Compensation Commission . . . does not create an independent cause of action for an employee, as here the Plaintiff, to be pursued in the Circuit, Chancery or other Courts of competent jurisdiction outside of a Workers’ Compensation claim.

Ms. Cross appeals on the basis that the trial court erred in dismissing her independent cause of action for wrongful discharge under sections 11-9-105 and 107 as a matter of law.

Section 11-9-105 provides in pertinent part as follows:

(a) The rights and remedies granted to any employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer or any principal, officer, director, stockholder, or partner acting in their capacity as an employer, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer.
* * * *

Section 11-9-107 addressed the penalties for discrimination for filing a workers’ compensation claim and provides as follows:

Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work or any individual on account of his claiming benefits under this chapter or who in any manner obstructs or impedes the filing of claims for benefits under this chapter shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not to exceed one hundred ($100) dollars, or by imprisonment of not to exceed six (6) months, or by both fine and imprisonment.

Clearly, this act provides an exclusive remedy to recover damages from an employer based on an employee’s injury. Seawright v. U.S.F. & G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982); section 11-9-105. Additionally, the extent to which an employer may be criminally penalized under the Workers’ Compensation Law for wilfull discrimination in the tenure of an employee is set out in section 11-9-107.

In this case, Ms. Cross provides no coherent or convincing argument that the Workers’ Compensation Law allows a civil remedy for wrongful discharge. In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990). Here, there are no facts alleged in the complaint, relative to the specific argument on appeal, that would support a civil cause of action for Ms. Cross under the Workers’ Compensation Law.

However, Ms. Cross also based her cause of action on the violation of public policy. We have previously recognized that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. The exception is limited and not meant to protect merely private or proprietary interests. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).

We construe the Coffmans’ motion to dismiss on the contention that “no cause of action is recognized in Arkansas by virtue of ‘wrongful discharge’ ” as a motion to dismiss under Ark. R. Civ. P. 12(b)(6) for failure to state facts upon which relief can be granted. Rule 12(b)(6) further states that:

. . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Arkansas R. Civ. P. 56(c) provides in pertinent part that “. . . [t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

In Ms. Cross’s pleading, she asserts her employment with the Coffmans’, an injury resulting in the filing of a workers’ compensation claim, a wrongful discharge cause of action based on the violation of a public policy of the State of Arkansas, and damages. Additionally, her answer to the Coffman’s interrogatories includes the following information:

INTERROGATORY NO. 2: Please state specifically any and all actions taken by defendants which would result in injuries alleged ... in the complaint.
ANSWER: (a) Defendants fired me on Saturday, November 29th, 1986, for filing a workers’ compensation claim. Helen [Ms. Coffman] yelled at me saying I was being fired because I was suing them. There was not at that time any kind of a lawsuit filed. The only paper I filled out was for Workers’ Compensation benefits. Mr. Coffman threatened me saying ‘And I am going to sue you and your attorney for trivia if you lose this suit’;
(b) Defamation of character;
(c) Threatened me — to sue me;
(d) Slander — telling others I was suing them when I was not and telling that I had a lot of problems; and,
(e) Giving a bad job reference against me.

The burden of proving that there is no genuine issue of fact is upon the moving party, and, on review, all proof submitted is viewed in the light most favorable to the party resisting the motion. Any doubts and inferences are resolved against the moving party. Scully v. Middleton, 295 Ark. 603, 751 S.W.2d 5 (1988).

Treating the facts in the complaint and interrogatories in a light most favorable to Ms. Cross, we cannot say that her asserted cause of action failed to show that a genuine issue of material fact existed or that the Coffmans were entitled to a judgment as a matter of law.

Affirmed in part; reversed and remanded in part.


text:
    RICK’S PRO DIVE ‘N SKI SHOP, INC. v. Cindy JENNINGS-LEMON
    90-312
    803 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      McHenry, Choate and Mitchell, by: David S. Mitchell and
      Robert M. McHenry, for appellant.

      Gary Eubanks & Associates, by: Darryl E. Baker and James Gerard Schulze, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellee, Cindy Jennings-Lemon, enrolled in the appellant, Rick’s Pro Dive ‘N Ski Shop’s (Rick’s) underwater diving course. While participating in the course, Jennings-Lemon became extremely cold and apparently had to get out of the water and her diving gear in order to avoid danger of hypothermia. She allegedly sustained injury to her neck when one of Rick’s agents “ripped off’ the mask and headpiece to her wetsuit.

Jennings-Lemon brought suit in Pulaski County Circuit Court for personal injury and negligence. Rick’s moved for summary judgment on the basis of an exculpatory agreement, signed by Jennings-Lemon, that purportedly released Rick’s from all liability for any potential acts of negligence. The trial court denied the motion and the case was tried to a jury, resulting in a verdict in favor of Jennings-Lemon.

Rick’s now bring this appeal, asserting as its sole point of error, that the trial court erred in denying its motion for summary judgment. We dismiss the appeal as the denial of Rick’s motion for summary judgment is not reviewable.

As an initial matter, we must address the issue of reviewability on our own initiative since it was not raised by the parties. We have held that the question of whether an order is final and, therefore, subject to appeal, is a jurisdictional question that we ourselves raise. Ark. Sav. & Loan v. Corning Sav. & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972); Associates Fin. Servs. Co. of Okla., Inc. v. Crawford County Memorial Hosp., Inc., 297 Ark. 14, 759 S.W.2d 210 (1988). By the same analysis, the question of whether we can review a prior interlocutory order is likewise jurisdictional and, furthermore, is dispositive in this appeal. We thus raise it sua sponte.

The denial of a motion for summary judgment is not an appealable order. Malone & Hyde, Inc. v. West & Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989). Furthermore, we have said that such an order is not subject to review on appeal, even after a trial on the merits. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937, (1977); American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); Widmer v. Ft. Smith Veh. and Mach. Co., 244 Ark. 971, 429 S.W.2d 63 (1968). Obviously, a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied since further evidence may be supplied at trial. See American Physicians Ins. Co. v. Hruska, supra.

Appeal dismissed.