text:
    Harold G. HEMINGWAY v. Arthur L. GLASPER, CHICAGO TITLE INSURANCE COMPANY and LITTLE ROCK ABSTRACT COMPANY
    86-175
    722 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987
    [Rehearing denied March 2, 1987.]

      Pope, Shambaurger, Buffalo & Ross, by: John K. Shamburger and Robert D. Ross, for appellant.

      Hal Joseph Kemp, P.A., for appellees.
   Tom Glaze, Justice.

Appellant appeals the trial court’s order staying a writ of execution he caused to be issued against Randall and Brenda Snow and appellee Arthur Glasper. For reversal, he contends appellee Chicago Title Insurance Company (Chicago Title) — the company that posted bond to stay the proceedings below — is unconditionally liable, under the terms of its bond, to appellant. Alternatively, he argues the court’s decision to stay the proceedings below is contrary to law. We reject appellant’s arguments and affirm.

This appeal evolves from appellant’s suit, filed on June 21, 1985, against the Snows, seeking judgment on two promissory notes. One note evidenced appellant’s personal loan of $5,000.00 to the Snows. The second one was executed for a loan of $19,000.00 from Union National Bank to the Snows. Appellant alleged he was induced to cosign the bank note for the Snows’ promise that they would execute a second mortgage to appellant on certain property they owned. That property subsequently became the object of the writ of execution appellant initiated in this cause after he obtained a default judgment against the Snows. After appellant caused the writ to be issued, appellee Glasper petitioned the court to stay the writ because Glasper had acquired title to the property from the Snows. The court granted Glasper’s request, which appellant seeks to reverse in this appeal.

First, we consider appellant’s argument that Chicago Title is liable to appellant under its bond which Chicago Title — at Glasper’s behest — put up to stay the execution. Appellant’s argument on this point is somewhat involved but, in sum, he claims Chicago Title and its agent, Little Rock Abstract, had liability exposure on title policies issued on the Glasper-Snow sale transaction because Little Rock Abstract had overlooked appellant’s default judgment which had attached as a lien to the Snows’ property prior to its conveyance by the Snows to Glasper. Appellant then argues Chicago Title, being aware of its liability exposure, sought to avoid future litigation by filing an unconditional bond in order to stay the execution sale of the Snows’ property. Appellant urges Chicago Title became absolutely liable under that bond for the Snows’ indebtedness, and the trial court should have granted judgment against Chicago Title. We cannot agree.

Appellant’s argument rests in large part upon the language contained in the bond. We find nothing in the record which otherwise supports the idea that Chicago Title had any intention to unilaterally assume the Snows’ indebtedness or, indeed, that it had filed the bond in this proceeding to avoid future litigation. To the contrary, Glasper is the person who petitioned the trial court to stay the appellant’s default judgment against the Snows. In his petition, Glasper stated that he was acting pursuant to Ark. Stat. Ann. § 30-311 (Repl. 1979), and that he had purchased a surety bond, conditioned that if his petition be denied, the default judgment, with costs, would be paid. On the same date he filed his petition, he caused a bond to be filed, captioned “Bond to Stay Judgment and Execution Thereof’, naming Chicago Title as principal, and American States Insurance Company as surety. While we recognize appellant argues otherwise, Glasper was a person who could, and did, properly petition the trial court, pursuant to § 30-311, to stay the proceedings below.

Appellant argues that, regardless of who filed the bond or for what purpose, the bond still fails to mention that payment under the bond was in any way conditional. Therefore, Chicago Title assumed liability even if Glasper prevailed on his petition. Such a contention is contrary to law. While appellant contends otherwise, the bond filed in this cause is unquestionably a statutory one, and our court, in New Amsterdam Casualty Co. v. Detroit Fidelity & Surety Company, 187 Ark. 97, 100, 58 S.W.2d 418, 419 (1933), stated the applicable rule as follows:

The bond sued on is a statutory bond, and such bonds, executed in the form prescribed by the statute, are to be construed, as respects the rights of both principal and surety, as though the law requiring and regulating them were written in them.

As previously stated, Glasper petitioned for a stay under § 30-311, and that statute provides that, if such application be determined against such petitioner, he will pay the debt, damages and costs to be recovered by such execution. Thus, while the bond filed by Chicago Title failed to specify a condition, the bond must be read to include the one contained in § 30-311. Here, the trial court resolved the matter in favor of Glasper and the Snows. Thus, if the court was correct in so holding — which we consider in appellant’s next argument — Glasper or Chicago Title Company clearly would not be liable on the bond.

We now decide whether the trial court was correct in holding Glasper’s interest in the Snow’s property is superior to appellant’s default judgment.

We agree with the trial court that Pulaski Federal Savings & Loan v. Carrigan, 243 Ark. 317, 419 S.W.2d 813 (1967) controls the situation presented here. There, a Mr. Stillman owned a lot which, on December 9,1965, he contracted to sell to Mr. and Mrs. T. H. Hale. On March 23,1966, Pulaski Federal obtained a personal judgment against Stillman, and after Pulaski Federal obtained partial satisfaction of its judgment, it later assigned its deficiency judgment to Southern Mortgage Insurance Corporation. Between the time Pulaski Federal obtained the personal judgment and its deficiency judgment, Stillman, on April 20,1966, performed his earlier contract with the Hales by conveying his lot by warranty deed. The Hales later sold the land to the Carrigans, who sought injunctive relief against Pulaski Federal and Southern Mortgage when they levied execution on the subject lot. This court upheld the trial court’s finding that Pulaski Federal’s deficiency judgment did not constitute a lien against the lot. Quoting from Snow Brothers Hardware Company v. Ellis, 180 Ark. 238, 21 S.W.2d 162 (1929), the Carrigan court held that “a judgment lien attaches only to the judgment debtor’s interest in the land and if that interest be subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien attached thereto ceases with it. ...” A judgment lien is subject to existing equities of third parties in the land. After citing the rule in Ellis, the court concluded that more than three months before Pulaski Federal had obtained its judgment against Stillman, Stillman had bound himself to sell his lot to the Hales. The court, stating there was no contention that the earlier Stillman-Hale contract was anything other than a good-faith transaction, held Pulaski Federal’s judgment lien was subject to that contract and was defeated when Stillman conveyed the lot to the Hales.

From our examination of the record, we find no meaningful distinction between the facts here and the ones in Carrigan. Appellant, through his partner, Roy Drew, offered to purchase the Snows’ property for $52,000. Drew testified that the offer, in part, was an effort to resolve a portion of the Snows’ indebtedness to appellant. The Snows rejected Drew’s offer in March 1985, and, instead, later executed an agreement on May 2,1985, to sell the property to Glasper for the sum of $57,500. As previously mentioned, it was not until June 21,1985, that appellant filed suit against the Snows on their indebtedness to him, and he did not obtain a default judgment until July 18, 1985. As was the situation with the judgment creditor (Pulaski Federal) in Corrigan, appellant’s judgment lien here was subject to the Snows’ May 2nd contract with Glasper, and that lien ceased to exist when the Snows conveyed title to Glasper.

Appellant attempts to distinguish Corrigan from the situation here, arguing the Snow-Glasper agreement was not a good-faith transaction. He points to the trial court’s amended order, requested by appellant, which curiously reflects the court’s finding that “Glasper was guilty of no fraud even though the Snows defrauded [appellant].” We have thoroughly studied the record and listened to remarks by both counsel in oral argument, but we fail to find any evidence to support fraud of any kind. As we noted earlier, appellant, in his original action against the Snows, did allege the Snows fraudulently induced him to cosign a note to Union National Bank by. promising him a second mortgage on “certain property.” He re-adopted the fraud allegation in his response to Glasper’s petition in this stay proceeding, claiming further that any conveyance by the Snows was a “fraud on creditors,” viz, appellant. Although appellant recited these fraud allegations, he offered no evidence to support them. Appellant did not testify and Drew, appellant’s only witness, merely recounted his unsuccessful efforts to purchase the Snows’ property. Drew made no mention of fraud or misrepresentation attributable to the Snows during his negotiations with them.

Even if the record supported fraud on the Snows’ part, it is settled law that Glasper, as vendee, must have participated in any fraud by the Snows before the appellant, as creditor, is entitled to set aside a conveyance as fraudulent. See Mente & Company, Inc. v. Westbrook, 181 Ark. 96, 102, 24 S.W.2d 976 (1930). The trial court found Glasper committed no fraud, nor does anyone contend otherwise. Unquestionably, Glasper entered into the transaction with the Snows in good faith, and based on the record before us, appellant is in no position to set that conveyance aside. We believe the Carrigan decision is controlling, and, accordingly, we affirm.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Vera RYKER v. C.G. FISHER, Jr.
    86-146
    722 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

      Turner & Mainard, by: Lonnie C. Turner, for appellee.
   Tom Glaze, Justice.

Appellant and appellee have interests in adjoining tracts of land and share a common fence. Appellee was growing watermelons on his leased land, while appellant was raising cattle on her tract. In July 1984, cattle entered appellee’s land, and destroyed his existing crop of watermelons. Appellee brought suit, alleging the appellant was negligent in “failing to keep up” her cattle. The jury found in appellee’s favor and awarded him $7,000.00. For reversal of that verdict, appellant contends on appeal that the trial court erred by (1) admitting photographs into evidence that were not properly authenticated, and (2) excluding evidence of subsequent harvests from the same crop which had been destroyed. We find no merit in appellant’s contentions, and therefore, affirm.

Regarding appellant’s first point, the appellee was requested to identify certain pictures. He responded they were photographs he asked his son to take of appellant’s fences, but he was unsure if they depicted the south or west fence. Appellee further testified he was present when the photographs were taken, and only appellant’s — and not his other neighbor’s — fences were shown. We have held that the validity of photographs introduced into evidence was not objectionable merely because the witness did not take the pictures. Hay v. Scott, 276 Ark. 46, 631 S.W.2d 841 (1982). The test, we said, of whether photographs are admissible into evidence depends on the fairness and correctness of the portrayal of the subject and their admissibility addresses itself to the sound discretion of the trial judge. Hay at p. 50. As already noted, appellee identified the photographs as depicting appellant’s fences at the time the cattle destroyed the crop. His only uncertainty was in distinguishing the photographs as they depicted either the west or south fences. Appellee’s uncertainty did not render the exhibits inadmissible; instead, such uncertainty merely addressed itself to the discretion of the trial judge who determined whether the photographs were sufficiently accurate to be of value to the jury. Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955). Considering the other evidence given in this case, we believe the trial judge was especially justified in admitting the photographs. Both appellant and appellee — aside from the photographs — presented extensive testimony concerning the state of appellee’s watermelon crop and appellant’s fences when the cattle destroyed the crop. Appellant has failed to show that the photographs in any way misled or prejudiced the jury. Therefore, we cannot agree the trial judge abused his discretion in admitting them.

Nor can we agree the trial judge erred in excluding evidence regarding appellee’s subsequent harvests to the one destroyed by the cattle. This error, appellant argues, caused the jury to miscalculate the proper measure of damages. Nothing in the record substantiates appellant’s argument on this point. In fact, the record shows appellant received all she requested of the court, and instead, the appellee was the one denied the opportunity to develop the costs he incurred in planting and cultivating his crop.

On cross-examination, appellee stated that he had sold some watermelons in the fall after the cattle had damaged his crop. Appellee’s attorney, in a side-bar conference, stated that if the appellant planned to elicit testimony about melons appellee sold, appellee wanted to introduce testimony about the cost of putting the crop in. After a discussion of the issue, the judge stated that he thought appellee should be able to show the cost he incurred in making the sales. Appellant’s attorney replied “[t] hat’s fair enough . . . [y]es, sir. I’ve got no problem with that.” Appellant then proceeded to ask appellee about the number of “pullings” [harvests] he got from the crop. Appellee replied that he made three “pullings” in the fall and conceded that the cattle’s destruction of his first crop did not prevent subsequent harvests. The issue was not raised again until re-direct examination, when appellee’s attorney asked if appellee had sold enough melons to pay his expenses. Appellant objected, and the court, reversing its earlier position, sustained the objection, stating that appellant’s attorney, on cross examination of appellee, had not gone into actual values received from appellee’s later production. Throughout appellant’s discussion of this issue with the trial court, appellant specifically stated that she wanted only tp show how many loads of melons appellee had harvested — not what money he got.

In sum, the trial court agreed with appellant and appellant was allowed to thoroughly examine appellee concerning his destroyed first crop, as well as his subsequent harvests. She simply is in no position to complain regarding this issue on appeal.

Affirmed.


text:
    SCHUSTER’S, INC. v. Johnnie P. WHITEHEAD
    86-143
    722 S.W.2d 862
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Paul D. Capps and Sherry S. Means, for appellant.

      William C. McArthur, for appellee.
   Tom Glaze, Justice.

This is a tort case in which a jury awarded appellee Johnnie P. Whitehead a judgment of $18,000.00 against appellant Schuster’s, Inc. (Schuster’s). In rendering its verdict, the jury determined that Steve Sack was an agent of Schuster’s, and he negligently installed a ceiling fan in the home of Ocie Garrison, Whitehead’s sister; it also found Whitehead’s injuries were proximately caused by Sack’s negligence. On appeal, Schuster’s argues the trial judge should not have submitted the issue of agency to the jury. In this connection, appellant specifically argues the trial court erred in denying its motion for judgment notwithstanding the verdict or new trial. It further contends the jury’s award was excessive. We affirm.

As appellant points out, the trial judge expressed some reservations when he denied appellant’s request for directed verdict. The judge, as already noted, later denied appellant’s motion for judgment n.o.v. or new trial, and ruled there was sufficient evidence for a jury to find an agency relationship existed between Schuster’s and Steve Sack. Of course, the trial judge, in making a ruling on that motion, is guided by a different standard from the one we are obliged to follow on appeal. When a motion for a new trial is made to the trial court, the test applied is whether the verdict is against the preponderance of the evidence. ARCP 59(a). However, the test on review, where, as here, the motion was denied, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985).

Before we consider if there is substantial evidence to support the jury’s finding that Steve Sack was Schuster’s agent, we first must look to the definition of agency.

In general, the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents so to act. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Our court also has recognized the rule that an agency may be implied where one by his conduct holds out another as his agent, or thereby invests him with apparent or ostensible authority as agent, and he thereby becomes liable as the principal for the acts of the one held out or apparently authorized to act as agent, whether or not he actually intended to be bound. Lemm v. Sparks, 230 Ark. 105, 321 S.W.2d 388 (1959) (quoting from 2 C.J.S. Agency § 23 at 1048 which now appears in 2A C.J.S. Agency § 54 (1972) at 630). Finally, and certainly relevant to the situation now before us, we have held that mere relationship or family ties, unaccompanied by any other facts or circumstances, will not justify an inference of agency — but such relationship is entitled to great weight, when considered with other circumstances, as tending to establish the fact of agency. Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d 449 (1942).

Appellant contends that the only evidence of agency is the family relationship between it and the ones who sold and installed the ceiling fans. The record reflects evidence that countervails that contention. Ocie Garrison testified that she purchased two fans from Joan Sack, a saleswoman for Schuster’s and daughter of its president, Roy Schuster. Garrison said she asked Mrs. Sack if she had someone who could install the fans and Mrs. Sack said her son, Steve Sack, would pick up, deliver and install them — which he did. Mrs. Garrison wrote Steve a check for $50.00 and that check subsequently was deposited in Schuster’s account. Garrison concluded that she “felt like Steve was, being in [the] family, working there.” About one year after Steve installed the fans, one fell, striking appellee Whitehead, when she was visiting in Garrison’s home.

Appellant offered testimony that contradicted that given by Garrison, and if believed by the jury, could have supported appellant’s theory of the case that Steve Sack was an independent contractor, not an agent. Nonetheless, when it is shown that the person causing the injury was at the time rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master-servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contractor to show the true relationship of the parties. Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958).

Appellant countered Garrison’s testimony by denying, among other things, that it had recommended Steve Sack or that Schuster’s received any benefit from the $50.00 check which had been deposited to its account. While Steve Sack denied ever having installed fans for Schuster’s or received money for it, he conceded he had delivered fans for Schuster’s in the past, and in the instant case, “he was ninety-five percent sure” that he had merely cashed the Garrison check at Schuster’s. The evidence, albeit conflicting, certainly presented a factual issue consistent with the establishment of an agency relationship between appellant and Steve Sack as opposed to one of an independent contractor. The trial court instructed the jury regarding both parties’ theories, and we believe it was correct in doing so.

Appellant next contends that the size of the verdict is not supported by substantial evidence and is so excessive as to shock the conscience of the court. We will not, of course, overturn a jury verdict unless it is clearly the result of passion or prejudice. Duggar v. Arrow Coach Lines, 288 Ark. 522, 707 S.W.2d 316 (1986). In support of its motion below, appellant complained the verdict was excessive, given the nature of Whitehead’s injury and the lack of its permanency.

Suffice it to say, Whitehead presented her doctor’s testimony that, as a result of the accident, she experienced ear problems and an inability to move her head, neck and arms. She testified that she was still having problems with her ears, shoulders and back, which have greatly reduced her activities. The trial court duly instructed the jury concerning the damage issue, telling it to consider the proof on the nature, extent and duration of Whitehead’s injury, her medical expenses and any past pain and suffering and any she might experience in the future. In reviewing the evidence in the light most favorable to the verdict and where there is substantial evidence to support a verdict, we will not disturb it. Duggar, supra, at 524.

Because our review reflects the verdict is supported by substantial evidence, we must affirm.

Affirmed.

Holt, C.J., not participating.


author: Per Curiam.

text:
    Charles A.D. BLISS and Sharon BLISS v. STATE of Arkansas
    CR 85-194
    723 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Honey & Rodgers, P.A., by: Charles L. Honey, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioners request permission to seek post-conviction relief, alleging that they were convicted of rape and illegally sentenced under Act 620 of 1981, which went into effect after the commission of the offense. Our review of the record reflects petitioners are in error. The jury was given instructions and verdict forms showing the correct range of punishment — five to fifty years or life — provided in Act 280 of 1975, which was in effect when the crime was committed. Accordingly, we deny the petition.


author: Darrell Hickman, Justice.

text:
    Margaret A. BURNLEY v. MUTUAL OF OMAHA, et al.
    86-151
    723 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987

      Esther M. White and Michael R. Salamo, for appellant.

      Niblock Law Firm, by: Katherine C. Gay, for appellees.
   Darrell Hickman, Justice.

The appellant, Margaret A. Burnley, a student at Farmington Public Schools, injured her knee at a school sponsored track meet. The school carried insurance with Mutual of Omaha and National Federation Student Protection Trust which covered certain students during school sponsored activities. Both companies refused Burnley’s claim for medical expenses. She sued the insurance companies, the school and her coach for her medical expenses and for general and special damages. The trial court dismissed Farmington Public Schools from the suit as immune under Arkansas law, and Burnley appeals from that order.

The order entered is not an appealable order. ARCP Rule 54(b) governs, and its requirements were not met. The relevant facts are the same as those in City of Marianna v. Arkansas Municipal League, 289 Ark. 473, 712 S.W.2d 305 (1986), where we said:

ARCP Rule 54(b) provides that when multiple parties are involved, or where more than one claim is presented, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties and claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.

We reverse and remand the case without prejudice to proceed as the parties did in City of Marianna v. Arkansas Municipal League, supra.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS HEALTH PLANNING & DEVELOPMENT AGENCY v. HOT SPRING COUNTY MEMORIAL HOSPITAL
    86-149
    723 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987

      Steve Clark, Att’y Gen., by: George A. Harper, Special Asst. Att’y Gen., for appellants.

      Winston Bryant, for appellee.
   Robert H. Dudley, Justice.

The Hot Spring County Memorial Hospital filed an application with the Arkansas Health Planning and Development Agency for a Certificate of Need to establish and operate a Home Health Agency in Hot Spring County. After a review of the application, the administrative agency denied the request. Pursuant to the agency’s rules, the hospital sought a review by an independent agency, which was granted, and then the independent agency remanded the matter back to the administrative agency for another adjudicatory hearing. An adjudicatory hearing was held, and the hospital presented additional evidence to support its position. Again, the agency denied the application, and, again, the hospital requested a review by an independent agency. The decision of the administrative agency was sustained by the independent agency on the second review. The hospital next sought judicial review in circuit court. The circuit court found that the administrative agency decision was not supported by substantial evidence, was arbitrary and capricious, and constituted an abuse of discretion. It ordered the administrative agency to issue a Certificate of Need. The administrative agency appeals. We reverse the circuit court because there was substantial evidence to support the agency decision.

One who seeks a license has the burden of proving eligibility to the satisfaction of the licensing agency. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983). The administrative agency, like a jury, is free to believe or disbelieve any witness and, on review, we give the evidence its strongest probative force to support the administrative decision. To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion. Finally, the question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Williams v. Scott, supra.

In the case at bar, when the evidence is given its strongest probative force to support the administrative decision, there was substantial evidence to deny the granting of a Certificate of Need.

The decision to deny the Certificate of Need for a home health agency was made in accordance with the agency’s regulations. The standard for granting a certificate is based upon a methodology which has been adopted as a rule by the Statewide Health Coordinating Council. That methodology employs a calculation which predicts the number of persons in each county who can be expected to need home health care at one time. A formula is then applied to that figure in order to project the resources needed to provide the required services to the patients. “Resources” includes administrative personnel as well as field personnel such as registered nurses, licensed practical nurses, physical therapists, and home health aides.

The resources needed are then compared with those actually existing in the county in order to determine whether additional home health services are needed. When only a minute amount of statistical need is found to exist, as happened in the case at bar, the agency must determine whether the need is sufficient to justify the establishment of a new home health agency with its additional cost basis and its accompanying impact on demand for, and cost to, those home health agencies already authorized. In reaching its decision, the agency used set criteria which included need, relationship to the State Health Plan, less costly and more effective alternatives, relationship to the existing health care system, and efficiency and appropriateness of existing services and facilities.

In this case there was substantial evidence that four home health agencies were already certified to provide service to Hot Spring County. There was testimony that the Arkansas Department of Health, one of the authorized home health agencies, had the authority and ability to provide all resources needed, including additional nurses, to adequately staff home health services. The methodology for determining needed resources shows a need for 2.2 registered nurses, .6 licensed practical nurse, and 2.4 home health aides. At the time of the application, the four authorized providers employed 5.8 registered nurses, 0 licensed practical nurses, and 2.6 home health aides. Thus, there was a surplus of needed registered nurses and home health aides, but a shortage of .6, or three work days in a five day week, of a licensed practical nurse.

Against this minute shortage, the agency weighed the Health Department’s willingness to bring in additional nurses, and the hospital’s proposed solution. The hospital projected its first year’s cost at $157,000.00. The Director of Home Health Services for the Arkansas Department of Health testified that 40% to 50% of that cost would be for overhead such as billing, accounting, supervision, rent, and utilities. He testified that $75,000.00 of the hospital’s projected expenditure represented an unnecessary duplication of overhead costs. Based on this evidence, the administrative agency found that the hospital’s proposed project would be an unnecessary duplication of services, would represent an unnecessary cost, which would be apt to have an adverse impact on the health care costs in the service area. They obviously concluded that the Health Department’s willingness to hire an additional licensed practical nurse was a better solution.

The hospital offered evidence that an in-house home health agency would be more convenient to the hospital and, in some ways, to the patient. The administrative agency found that a more efficient and appropriate solution for this problem was for the hospital to work in a closer and more coordinated manner with existing home health services.

The hospital contends that some of the evidence considered by the administrative agency is not reliable. The argument is without merit. Some of the evidence is hearsay, but many agency decisions are necessarily based upon telephone surveys, mail surveys, census surveys, and consultation with other health care providers. Such data can constitute substantial evidence in an administrative hearing where, as here, the hospital had the opportunity to question any resource data, but did not do so.

The agency decision was based upon a record of substantial evidence and was neither arbitrary nor capricious, nor did it constitute an abuse of discretion. The decision of the circuit court ordering the Arkansas Health Planning and Development Agency to issue a Certificate of Need is reversed and the agency’s decision is upheld because it was supported by substantial evidence.

Reversed.


author: Steele Hays, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Lanelle DAVIS v. STATE of Arkansas
    CR 86-197
    723 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987

      Jerome J. Paddock, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Lanelle Davis was charged in the Fayetteville Municipal Court with criminal trespass committed on or about October 1,1984, in violation of Ark. Stat. Ann. § 41-2004 (Repl. 1977). The charges stemmed from problems with her former husband. She requested a jury trial and the case was transferred to circuit court where she was convicted and sentenced to 60 days in jail. On May 30,1985 judgment was entered and execution of the sentence began.

After serving eight days of her sentence Mrs. Davis was “admonished to good behavior” and released from jail. We find no order or docket entry reflecting that occurrence, though the briefs on appeal indicate it was the result of an agreement between the prosecutor and defense counsel with the concurrence of the trial judge.

Several months later the prosecutor filed a “Motion to Revoke Suspended Sentence,” alleging Mrs. Davis had violated the terms of her “probation” by again trespassing and harassing her former husband. At a November hearing the trial court revoked what was referred to as “a furlough” and Mrs. Davis was returned to jail to serve the balance of her sentence. On appeal to the Court of Appeals the case was certified to this court as involving an issue of significant public interest. Rule 29 (4) (b).

It is clear the order releasing Mrs. Davis from custody was void. There is no power under our statutes giving circuit courts the authority to interrupt a sentence in order to grant “furloughs,” or even to suspend a valid sentence once execution has begun. When a valid judgment is put into execution the trial court is without jurisdiction to modify, amend or revise it. Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977). While Act 431 of 1983 (Ark. Stat. Ann. § 43-2314) provides that circuit courts may correct an illegal sentence at any time, or may within 120 days correct a sentence imposed in an illegal manner, or even reduce a sentence under certain conditions, none of those circumstances is present here.

The question remaining is, what is the effect of the lapse of time on the sentence where a defendant has been released under a void order prior to the completion of her sentence. Two cases dealing with this question are Massey v. Cunningham, 169 Ark. 410, 275 S.W. 737 (1925) and Davis v. State, 169 Ark. 932, 277 S.W. 5 (1925). In Massey v. Cunningham, a sentence of ninety days in jail was suspended conditioned on the defendant’s good behavior. Some two years later Massey was returned to custody for more recent criminal conduct. In Davis v. State, Tobe Davis was sentenced to one year in jail for bootlegging but the sentence was suspended for an indefinite time. As with Massey, more than a year had elapsed when the suspension was lifted due to continued misconduct and Davis was ordered to serve the sentence originally imposed. This court announced the attempted suspensions of sentence void in both cases. In Davis v. State, supra we said:

The result of our views is that the circuit judge in each instance exceeded his power, and the stay of execution of the sentence was void. This being so, the circuit court had the right to order that Davis be taken into custody, to the end that he might serve his sentence. The postponement of his imprisonment was with his consent, and he cannot now object to being called upon to serve it. It does not make any difference that more than a year has elapsed since the sentence of one year’s imprisonment in the penitentiary was imposed. While at large under the void orders of the circuit court, to which he assented, the defendant was in the same situation that he would have been had he escaped from custody. A sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by actual suffering of the imprisonment imposed by it. The reason is that the time at which a sentence shall be carried into execution is not provided by statute and forms no part of the judgment by the court. Massey v. Cunningham, ante, p. 410.

Those decisions were soon followed by Ketchum v. Vansickle, 171 Ark. 784, 286 S.W. 948 (1926); Scruggs v. North Little Rock, 179 Ark. 200, 14 S.W.2d 1112 (1929); Davis v. State, 184 Ark. 1062, 45 S.W.2d 35 (1932).

In Hopkins v. North, 135 A.2d 367 (C.A. Md. 1926), the defendant began serving a 60 day sentence for driving while intoxicated. After a few days he was released due to illness under a “general understanding” that he would return to jail to resume serving his sentence. When he refused and the sheriff hesitated, the prosecutor sought mandamus which the trial court granted. On appeal the writ was upheld:

The decided weight of authority and, in our opinion, the better reasoned cases, hold that, when a prisoner secures his liberty through some illegal or void order, it is to be treated as an escape, and he can be retaken and compelled to serve out his sentence, even though the time in which the original sentence should have been served was expired. (Citations omitted).

An annotation at 49 ALR 1306 states the cases “almost uniformly support this rule.” Wilson v. State, 339 S.W.2d 20 (S.C. Tenn. 1960), see Annot. 141 A.L.R. 1229; 98 A.L.R.2d 700, 24 C.J.S., Criminal Law § 1618(11)(b) p. 904, 21 Am.Jur.2d, Criminal Law, § 546 p. 901.

We reached the same result more recently in Coones v. State, supra. The opinion in Coones is not crystal clear and has given us some difficulty. Coones was sentenced to a year in jail but after a few days in custody he became ill and was removed to the hospital. Shortly thereafter he went home where he recuperated over the next several months. A month short of a year from his original sentence he was ordered back to jail. The trial court entered several subsequent orders modifying the sentence but refused to give Coones credit for the time he spent in the hospital and at home. He appealed and the case was reversed. The dissenting members of this Court interpret that as the upholding of Coones’s argument. We disagree. We believe the reversal was based on the trial court’s lack of jurisdiction to enter any order subsequent to the original sentence and the opinion explicitly states Coones’s argument “becomes moot.” (Coones at p. 324). It is quite clear the opinion assumes that Coones must serve the original sentence as it states, “consequently, the orders are void and the original sentence remains in full force." Adding, “In effect, that presents a plea for clemency.” If this court had been upholding Coones’s claim it would hardly have called his argument moot, declared that the original sentence remains in full force, and advised Coones to seek clemency. Id., p. 324. Moreover, if the minority is correct, then the decision in Coones effectively overruled five prior Arkansas decisions to the exact contrary (cited supra), and went against overwhelming authority to the contrary (see 141 A.L.R. 1229, 98 A.L.R.2d 700, et al., supra), all without a hint that such was intended.

In certifying this case to us the Court of Appeals noted that significant statutory changes have occurred in recent years, with the possibility that our decisions are no longer viable. We have examined those statutes carefully and we find nothing that would require a different result in this case. It might be noted that under the provisions of Ark. Stat. Ann. § 41-1204 (Repl. 1977) the circuit court could have arrived at some arrangement roughly comparable to what was done in this case provided the conditions listed in Ark. Stat. Ann. § 41-802 are present. § 41-1204(3). However, those methods must be instituted before execution of sentence commences.

Granted, Mrs. Davis is not an escapee and the analogy to escape seems strained. But in a real sense, we think, she was instrumental in her release, as it would not have come about had she not at least implicitly given assurance of good behavior. To hold that her sentence is executed simply by lapse of time under these circumstances would, we believe, offend a long standing public policy that a sentence to jail can be executed only by serving the term imposed. Logan v. Eyman, 475 P.2d 513 (C.A. Ariz. 1970).

Mrs. Davis argues she was not given the conditions of her “suspended sentence” in writing as required by Ark. Stat. Ann. § 41-1203(4) (Repl. 1977). But that provision presumes a valid suspension at the outset and has no application to a void release.

Finally, having decided that Mrs. Davis’s release was not according to law, we need not consider the argument that she should have been given a psychiatric evaluation before being returned to custody.

Affirmed.

Holt, C.J., Hickman, J., and Purtle, J., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because the trial judge had no jurisdiction to alter the sentence once executed.

The majority cites Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983), to support its decision. It holds exactly the opposite. The trial judge entered an order directing a defendant to be reincarcerated and serve out a year sentence. Eleven months of the sentence had elapsed when the defendant was brought before the court. We reversed the trial court’s order, holding the sentence could not be changed.

Holt, C.J., joins in this dissent.

John I. Purtle, Justice,

dissenting. I am somewhat puzzled by the majority opinion. The opinion has two primary effects: (1) It allows the state or court to reincarcerate the appellant without a trial on her subsequent acts, and (2) It tries to reinstate the law as it existed prior to 1932. If the appellant’s release was void, as the majority holds, then it can have no effect on the sentence and it has expired. There can be no dispute that execution of the sentence had commenced.

“When a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” Majority opinion, relying upon Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983). Coones closely parallels the case here under consideration. In Coones the prisoner was released during the term of his sentence because of poor health. He had been sentenced to two seven month sentences, to run consecutively. The Court of Appeals subsequently reduced his sentence to one year in the county jail. After 11 months had elapsed the trial court ordered Coones to serve the remainder of his sentence, without credit for the time he had been on “furlough.” We reversed and held that the time on the sentence continued to run during the time the prisoner had been in the hospital and at home convalescing. I cannot understand why the majority continues to misinterpret Coones. I joined in the majority opinion and still believe it is correct and just. The cases of Cooper v. State, 278 Ark. 294, 645 S.W.2d 950 (1983), and Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977) were cited as precedent in Coones. The same cases are cited in the majority opinion for the opposite result. The facts in Coones were fairly set out when we stated:

A month short of a year from the beginning of his original sentence, the trial court conducted hearings and appellant was again ordered incarcerated. The appellant asked the trial court to credit him with the time he had spent in the hospital and at home convalescing. The trial court refused to do so. Appellant asserts on appeal that this was error.

We reversed the trial court. How can it be said that the decision supports the majority view. It cannot, in my opinion.

Although the majority states that the release of Ms. Davis was void, the effect of this decision is to sanction this “furlough” and subsequent reinstatement of sentence as a valid exercise of the power of the trial court. How do we justify a void sentence? The total sentence had expired. It had been served. Therefore, there was no sentence left to be reinstated. If she has committed another trespass, she is subject to another charge. However, we cannot use the old trespass for a new sentence. If it is the intention of the majority to overrule our three latest cases and return to the law as it was interpreted in the 1920’s it should plainly so state.

I would reverse and dismiss.

       These offenses preceded the effective date of Act 76 of 1923.

       The state’s “Motion to Revoke Suspended Sentence” alleges that Mrs. Davis was “admonished to good behavior” in connection with her release. We find no denial of that assertion either before the trial court or in her brief on appeal.


author: Per Curiam. Darrell Hickman, Justice,

text:
    Lawrence Edward BENSON v. STATE of Arkansas
    CR 87-3
    723 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987
   Per Curiam.

Petition for Review is denied.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. We can do nothing but deny this petition. This is the companion case to Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). In Trotter a majority reduced the charge on a basis not even argued by the appellant. The court of appeals had no choice except to follow suit.


author: Per Curiam. John I. Purtle, Justice,

text:
    Bobby FRUIT v. A.L. LOCKHART, Director ARKANSAS DEPARTMENT OF CORRECTION
    86-285
    723 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987
   Per Curiam.

Appellant’s petition for Writ of Certiorari is denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe the petition for a writ of certiorari should be treated as a request for Rule 37 relief. In Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984), we said: “Post-conviction petitions which raise grounds for relief cognizable under Rule 37 are considered petitions to proceed under Rule 37, regardless of the label given them by the petitioner.” On the other hand, if this is not a petition for Rule 37 relief, then we have denied the petitioner the right to appeal from the adverse ruling of the trial court.

I would send the petition to the Crittenden County Circuit Court for consideration since that is the court where the guilty plea was entered.


text:
    Jerry Wayne PEMBERTON v. STATE of Arkansas
    CR 86-178
    723 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987

      Bill E. Ross, for appellant.
    No objection by appellee.
   Per Curiam.

The appellant’s attorney tendered a brief 38 pages in length, and the clerk refused to accept it because Rule 11(f) of the Rules of the Supreme Court now provides for only 25 typewritten pages. Rule 11(f) did seem in conflict with Rule 8(c) of the same rules and provided for 40 typewritten pages. This rule was reconsidered by a per curiam dated July 7, 1986, where we stated:

In order to bring Rule 8(c) and Rule 11(f) of the Rules of the Supreme Court and the Court of Appeals into agreement, Rule 11 (f) is hereby modified by striking out the following sentence:
The appellant’s brief in chief, before its printing, shall not exceed 40 double-spaced typewritten pages, with a similar 10-page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case it may be waived by the Court on Motion.

And substituting therefor the following:

The argument portion of the appellant’s brief shall not exceed 25 double-spaced typewritten pages or 30 printed pages, with a similar 15 typewritten and 20 printed page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case it may be waived by the Court on Motion.

The appellant’s attorney makes no statement that he has tried to reduce the brief to the number of pages provided for in the rule. Occasionally, we grant a waiver of the 25-page limit, but only if the party can demonstrate that the limits cannot in fairness be met. The appellant should redraft the brief and make a good faith effort to limit his argument to 25 typewritten pages. It can be done in most cases.

Motion denied.


text:
    Danny SANDERS v. STATE of Arkansas
    CR 86-218
    723 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered February 9, 1987

      Wallace, Hamner & Arnold, by: Ralph Hamner, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner, Danny Sanders, was convicted of aggravated robbery and rape on September 16, 1981, for which he received sentences of twenty years and sixty years to be served concurrently in the Department of Correction. Sanders appealed and the judgment was affirmed. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982).

Danny Sanders now brings this “Petition to Set Aside Judgment or to Proceed Pursuant to Rule 37.2.” The petition alleges that his grounds for relief are such as to render the judgment of conviction against him absolutely void. The grounds are that the victims, Roger Hughes and Bonita Hughes, provided the only evidence against Sanders at the trial. Both identified Sanders as one of four men who entered their tent while they were camping on the night of July 4, 1981.

The petition makes a number of allegations that Sanders was denied due process due to improper tactics by the prosecution — the denial of information to the defense which tended to negate Sanders’s guilt and the use of improper lineup procedures. Accompanying the petition are affidavits from Roger Hughes asserting that Danny Sanders was not one of the four men who robbed the Hugheses that evening, notwithstanding his identification of Sanders at trial as one of the robbers. The affidavit further asserts that Bonita Hughes, from whom Roger Hughes is now divorced, had stated to him that Sanders was not the individual who forced her to perform oral sex while Roger Hughes and two of the robbers had gone to their car to look for money.

Also accompanying the petition is an affidavit of Jackie Don Britt dated March 28,1984 in which Britt asserts that he, and not Danny Sanders, was the person who sexually assaulted Bonita Hughes on July 4,1981. The affidavit identifies the four individuals who robbed the Hughes that night and repeatedly asserts that Danny Sanders was not involved in the crimes. Accompanying the affidavit is a verified statement taken from Jackie Don Britt at the Cummins Unit of the Arkansas Department of Correction, where Britt was incarcerated on an unrelated charge. The statement confirms the information in the affidavit and provides a detailed account of the actions of the four men on the night in question.

Accompanying the petition is the report of a polygraph administered to Danny Sanders on December 17, 1985 by L.E. Gwyn, Polygraph Examiner, stating his opinion that Sanders answered truthfully in denying being at the Hughes campsite on the date in question or having sexually abused Bonita Hughes.

Also appended to the petition is a thorough report of an investigator concerning interviews with various people attesting to the fact that Danny Sanders was at places other than the crime scene at the time the offenses were occurring.

Finally, the petition outlines physical discrepancies which support the conclusion that Danny Sanders was not guilty of the crimes for which he was convicted: The individual who assaulted Mrs. Hughes, who was said to have been shirtless, was described by Mrs. Hughes as being about 6 feet in height and without distinguishing marks. Whereas, Danny Sanders is less than 5T” and his arms are covered with tatoos. Other dissimilarities between Sanders and the perpetrator are cited.

The prayer of the petition is that the judgment of conviction be set aside and a new trial ordered.

While we view the supporting data as having apparent credibility, we are compelled under our rules to deny the petition for two reasons: it is untimely and it constitutes a direct attack on a judgment for which Rule 37 is explicitly not intended. In Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981), we said:

A motion asking the trial court to grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Woods v. Quarles, 178 Ark. 1158, 13 S.W.2d 617 (1929). We have already expressed our doubts, without having to decide, whether newly discovered evidence is a proper basis for relief under our post-conviction rule. Gross v. State, 242 Ark. 142, 145, 412 S.W.2d 279 (1967). We now declare that it is not.

As to the timeliness of the petition, the judgment in this case was entered in September, 1981 and this petition was filed on December 29, 1986. A.R.Cr.P. Rule 37.2(c) provides that a petition “claiming relief under this rule must be filed in . . . the Supreme Court within three , years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void. Obviously the judgment of conviction in this case is not absolutely void.

While we must deny the petition for the reasons stated, we are constrained to express our belief that the petition presents a meritorious case for reopening, that Danny Sanders’s conviction was the result of mistaken identification. For that reason we regard the matter as an appropriate appeal for clemency and we commend it to the executive branch as facially worthy of serious consideration.

For the reasons stated, the petition is denied.

Hickman, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    CLARK COUNTY, ARKANSAS: Miles McCAULEY, County Judge; Justices of the Peace Bill MOORMAN, Don COLLINS, R.H. BATSON, Marvin D. SMITH, Floyd MANNING, Neal DODSON, Bill NEWTON, Billy KIRKSEY, Joe L. CLARK, Freddie O. HORNE, & James E. COX, Jr. v. O.C. MILLER & Sam HORTON
    86-142
    723 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      W.H. “Dub” Arnold, for appellants.

      Janice Williams Wheeler, for appellees.
   Jack Holt, Jr., Chief Justice.

Amendment 55 to the Arkansas Constitution and resulting legislation permits quorum courts, subject to voter approval, to reorganize county government. At issue in this case is the validity of an ordinance approved by the voters of Clark County which reorganized that county’s government. The trial court held the ordinance was “not in keeping with the Acts of the State of Arkansas.” We agree that it. is illegal and affirm. It is from that finding that this appeal is brought.

Section 2(b) of amendment 55 provides:

The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action.

Subsequent to the adoption of this amendment, the Arkansas General Assembly passed Act 742 of 1977, codified in part as Ark. Stat. Ann. §§ 17-3701 — 3715 (Repl. 1980) which states “that the present structure of county government does not meet the needs of every county” and that “county government can be made more responsive to the wishes of the people through selected structural changes and consolidation.” § 17-3701. The stated purpose of Act 742 was to “establish the basic procedures for the adoption and implementation of alternative county government organization pursuant to Part (b), Section 2 of Amendment 55. . .” and to “provide the citizens of each county the opportunity to select the form of county government organization which best serves their needs and desires.” § 17-3702.

In March of 1984 the Clark County Quorum Court adopted Ordinance 190 which provided for a revised county government organization by creating the offices of Tax and Revenue and Courts and Records. In doing so, the ordinance transferred certain duties and powers of the assessor, treasurer, and sheriff to the office of Tax and Revenue; and the powers and duties of the circuit and probate clerks to the office of Courts and Records. The offices of coroner and surveyor were unaffected by the ordinance and the county judge was given the authority to prepare payroll warrants.

The ordinance was presented by ballot to the voters of Clark County and was adopted by a majority vote in November of 1984. The validity and results of that election are not at issue here.

The appellees, Sam Horton and O.C. Miller, taxpayers in Clark County, challenged the validity of Ordinance 190. In finding it illegal, the chancellor held that the ordinance placed all the financial controls of the county with one official or department which is prohibited by Ark. Stat. Ann. § 17-3709(2)(j) (Repl. 1980), and altered the duties of the county judge in derogation of Ark. Stat. Ann. § 17-3704 (Repl. 1980), and that the illegal portions of the ordinance are not severable.

Although we look with favor on efforts to make county government more efficient, there are limitations on the power of a county to reorganize its government. Accordingly, no county is authorized to pass an ordinance reorganizing its government in a manner contrary to the general law of the state. Cox v. Comm’rs of Maynard Fire Improvement Dist. No. 1, 287 Ark. 173, 697 S.W.2d 104 (1985). Furthermore, Ark. Stat. Ann. § 17-3709 specifically provides:

(2)(j) all duties prescribed by law for a Treasurer may be assigned to a County Department of Financial Management; provided, however, that any plan for alternative county organization adopted by the electors which includes the abolishment of the Treasurer as an elective office shall provide in that plan for the establishment of financial controls. Such plan of financial controls shall not vest sole financial administration in a single elected official or in a department which is administratively controlled by such elected official.

The chancellor found that Ordinance 190 vests sole financial administration in the newly created office of Tax and Revenue in violation of § 17-3709(2)(j). Article 4(a) of the ordinance provides that the Tax and Revenue Officer shall have all powers and duties “related to the assessment of real and personal property, collection and accounting of all ad valorem taxes and other county revenues and expenditures.” In addition, section 4(a) provides that any other official duty not enumerated “but necessary to the assessment of real and personal property, collection and accounting of ad valorem taxes and other county revenues and expenditures shall be deemed to be transferred to the Tax and Revenue Officer.”

The appellants, the county judge and justices of the peace of Clark County, argue that “sole financial administration” means all the subparts of administration including accounting, budgeting and auditing, and not just the collecting and accounting of revenues, so that all the sole financial administration is not vested in a single department. They cite no authority for this proposition, however, and we do not find their argument persuasive.

Under Clark County’s previous form of government a system of checks and balances existed. Claims were prepared by the county clerk and sent to the county judge for approval. The judge signed the claim and ordered the clerk to issue a warrant. The clerk then prepared the warrant and it was taken to the county treasurer where a check was written. This system provided adequate safeguards, however, it was unwieldly in that it took three officers to issue a check. We agree with the quorum court that consolidation of these offices was in order, but by combining these functions in only one office, Ordinance 190 totally destroys the integrity of a system which rightfully had checks and balances, and violates § 17-3709(2)(j). Since the ordinance violates the statute, it is illegal.

The ordinance also must fail because of the additional power it grants to the county judge to prepare payroll warrants. Arkansas Stat. Ann. § 17-3704 provides expressly that the offices of county judge, justice of the peace, and constable are excluded from the provisions of Act 742 and those offices may not be revised pursuant to amendment 55.

The county officials’ final argument is that the illegal provisions of Ordinance 190 are severable and should merely be excised from the ordinance. The chancellor found that he could not give effect to the ordinance without the invalid provisions. The chancellor was correct since, without those provisions, no revenue could be collected and no expenses could be paid by Clark County. Likewise, if this court were to remove the warrant power granted to the county judge, we could not place it with a different office. Inasmuch as we have held that a court cannot rewrite an ordinance so that it becomes acceptable, Cox, supra, the chancellor had no recourse but to find the entire ordinance illegal.

Affirmed.


text:
    Frances J. MERRIMAN and Melinda Mae GOEBEL v. Charles P. YUTTERMAN, a/k/a Charles W. YUTTERMAN and Lorene T. YUTTERMAN
    86-187
    723 S.W.2d 823
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Daily, West, Core, Coffman & Canfield, for appellants.

      Frank R. Shaw and Hardin, Jesson & Dawson, for appellees.
   Jack Holt, Jr., Chief Justice.

The parties in this appeal are the surviving children of John L. Yutterman who died in 1953 and left his property, located in Fort Smith, Arkansas, to his two sons and two daughters. Over thirty years after Yutterman’s death, his daughters, Frances J. Merriman and Melina Mae Goebel, the appellants, filed suit against the only surviving son, the appellee Charles Yutterman and his wife Lorene, to determine the ownership of a forty foot wide driveway that apparently bisects the property. In addition, Frances sought reformation of a deed to property she sold to her brother Charles in 1982. Frances contends the deed contains an erroneous legal description due to fraud and deceit by Charles. Charles counterclaimed that he overpayed Frances for the property. The trial court denied all relief because of a lack of proof, and found that an easement in gross existed in the driveway on behalf of all the parties. We agree and affirm.

When Yutterman died, he devised portions of his homeplace in fee simple to Frances, Melina, Charles, and his now deceased son, John D. Yutterman. The parcels devised to John D. and Charles were located in the southern portion of the property, and were apparently divided by the forty foot wide driveway into two nearly equal parts. Both property descriptions provide that the land being devised runs to either the west or east line of the driveway, and not to the middle of the driveway. The property devised to Melina is located in the northern portion of the land and the description does not mention the driveway. The property inherited by Frances is apparently the middle section of the homeplace. Likewise, that description does not mention the driveway. After reciting that he had conveyed to each of his four children a portion of his homeplace property, the deceased further provided in his will the following underscored language:

Further, a specific condition of this will and of these devises is that theforty (40) foot driveway from Free Ferry Road, three hundred (300) feet Northward, shall be kept open for the common use of the devisees in this will. (Emphasis in original)

A residuary clause granted all the rest of Yutterman’s estate to his four children, share and share alike.

Before John D.’s death, he conveyed his portion of the homeplace to Tankersley Brothers and Charles then bought the property from Tankersley Brothers. In November, 1982, Frances sold part of her property to Charles. It is the deed from that sale that she now wants reformed. Frances then attempted to sell the rest of her property to third parties, but could not because there was a cloud on the title over ownership of the driveway. To resolve this problem, Frances brought suit claiming that she owns the driveway under either of two theories, one of which her attorney abandoned during oral argument before this court. The remaining theory is that, since the driveway was not specifically bequeathed to anyone, then it passed to all four children pursuant to the residuary clause. The heirs of John D. Yutterman have conveyed their interest in the driveway by quitclaim deed to Frances. Therefore, she contends, she owns half of the driveway and Charles and Melina each own one fourth.

The chancellor found that the will conveyed the forty foot wide driveway to all four children as an easement in gross, and that therefore the driveway is to be used and maintained for their common use without assignability and terminable upon death. In light of this interpretation of Yutterman’s will, the chancellor denied Frances’ claim.

We uphold the chancellor’s decision. Although Frances asks this court to declare her the owner of the driveway in fee simple, she fails as a matter of proof to provide the court with a map that shows where the driveway is located. She does provide a map showing all of the property as divided between her, Melina, and Charles but it does not depict the driveway; and she provides a map that purports to be of only her property that shows the driveway. She does not, however, offer a map showing her father’s property divided according to the terms of his will, with her brother John’s share represented and showing the path the driveway takes throughout all of the property.

Accordingly, as a matter of evidence, we are left only with the terms of the will, which uses the driveway as a boundary line between the portions devised to Charles and John D. and grants a right of common use of the driveway to all four children, for our consideration. In interpreting a will, this court tries to find the intent of the testator from a consideration of the entire instrument. Morgan v. Green, 263 Ark. 125, 562 S.W.2d 612 (1978). We agree with the chancellor and find that Yutterman intended that all four children have equal access to use of the driveway. An easement in gross is personal to the parties and ends with the life of the parties. Rose Lawn Cemetery Ass’n Inc. v. Scott, 229 Ark. 639, 317 S.W.2d 265 (1958). By stating in his will that the driveway is to be kept open for the common use of the devisees in the will, Yutterman stated his intention that this easement be personal to the parties, and not a right that runs with the land.

Frances Merriman next argues that the deed executed by her to Charles in 1982 selling a portion of her land should be reformed. She contends that the legal description conveys more land than she agreed to sell, and that it is the product of fraud and deceit by Charles. Charles did not appeal the denial of his counterclaim for a refund of part of the purchase price. In her brief and in oral argument, Frances also argued that the erroneous legal description was the result of a mutual mistake. Her attorney conceded, however, that this argument was being raised for the first time on appeal and, accordingly, we do not consider it. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978).

The chancellor denied Frances’ claim of fraud for want of proof and want of equity. This was a factual determination and we do not reverse his decision unless it was clearly erroneous. Ark. R. Civ. P. Rule 52. The resolution of this question rests in large part on the credibility and reliability of witnesses, which is best assessed by the trial court. Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984).

In order to reform a deed the evidence must be clear, convincing, unequivocal and decisive, and must establish the right beyond a reasonable doubt. Gastineau, et al. v. Crow, 222 Ark. 749, 262 S.W.2d 654 (1953). Here, Frances offered proof that the parties agreed that the property to be sold would be bounded by the hedge line on the west side of her house, west of the driveway, and that the property, as described in the deed, goes beyond that to the middle of the driveway. She did not, however, prove that fraud or deceit by Charles procured the misdescription in the deed. We cannot say that the chancellor’s finding was clearly erroneous.

Affirmed.


text:
    William ROBINSON, Jr. v. STATE of Arkansas
    CR 86-108
    723 S.W.2d 818
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Smith & Drake, by: Mark D. Drake, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Two robberies were committed on the same night in the same general proximity in Lake Village by an assailant similarly described by witnesses. After a jury trial, the appellant, William Robinson, Jr., was convicted of both counts of aggravated robbery and sentenced to concurrent forty year prison terms. Robinson argues on appeal that the evidence was insufficient to support the guilty verdicts. We disagree and affirm both convictions.

Since neither victim could positively identify Robinson as the man who committed the robberies in this case, the convictions rested largely on circumstantial evidence. We said in Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981):

Before narrating the testimony we again emphasize, as we have often done, that although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMCI 106, that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975); Abbott v. State, 256 Ark. 558, 561-562, 508 S.W.2d 733 (1974). The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but we, not having had the advantage of seeing and hearing the witnesses, are guided by the substantial evidence rule. Graves & Parham v. State, 236 Ark. 936, 370 S.W.2d 806 (1963).

The testimony of the events surrounding the robberies was as follows. On May 4, 1985, Tom Polk left Mike’s Cafe at about 9 p.m. Polk got into his truck, leaving the door open as he reached for his keys. A black man, described by Polk as tall and slim and wearing an old jacket, jumped in on top of him and demanded three times that Polk give him his wallet. While Polk attempted to retrieve his wallet from his back pocket, the man cut Polk behind the ear and on the left arm with a “case knife or butcher knife.” The assailant finally pulled Polk from the truck, grabbed the wallet and ran. Polk said no money was in the wallet.

The attacker had an “old sock” pulled over his face which prevented Polk from positively identifying him. Polk told police though that he thought it was Robinson, whom he knew as a customer at his liquor store.

Two witnesses testified they saw a black man wearing a jacket and a beige toboggan cap peeking through a window into Mike’s Cafe shortly before the robbery.

Another witness, Linda Helms, testified that she also saw a man wearing a jacket, whom she couldn’t identify because of the distance, looking into the cafe that night. Moments later, Robinson, dressed the same way as the man she had seen at the cafe, approached her and a companion and asked the companion if he had a knife. The companion did not, and Robinson left. Helms testified that minutes later, at about 9 p.m., while sitting on her porch a few blocks from Mike’s Cafe, she saw a man run by, again dressed the same way and now carrying a knife. She said she could not definitely say this man was Robinson.

Charlie Mae Lambert testified that Robinson was staying at her home at the time of the robbery and that a wooden handled butcher knife was discovered missing from the home shortly after the robbery.

■ Several witnesses testified for the defense that they had seen Robinson at a convenience store in the area at about the time of the robbery, dressed in a brown pin-striped suit. Although Robinson did not testify at his trial, he said in a statement to the police which was introduced into evidence that he saw another man, whom he identified, rob Polk. Robinson also said he won $25.00 gambling with this same man later that night.

The second aggravated robbery occurred shortly after 1 a.m. the same night. Ailene Williams testified that she was working at the desk of the La Villa Motel when a tall, thin, black man, wearing a khaki jacket and a gold toboggan cap came into the hotel lobby and made her give him the money from the cash register. She said the man was holding an old claw hammer. She was unable to say Robinson was or was not the man, although she said she thought the robber was lighter complected, but that this impression could have been created by the fluorescent lights in the hotel lobby.

Sharon Mitchell, one of the occupants of the Lambert house where Robinson was staying, testified that she saw Robinson in the house between 12:30 and 1:00 a.m., dressed in beige and counting money. She said he acted nervous, was sweating, and his hair was flattened as if he had been wearing a cap. When she asked if he had gotten the money gambling, he said yes. Mitchell and Lambert both testified that a claw hammer, which had been on the kitchen table earlier, was missing from the house. Both said the hammer was almost new.

Robinson argues that inconsistencies in, and the circumstantial nature of, the state’s proof required the jury “to resort to speculation and conjecture” in finding him guilty. Robinson cites as flaws in the state’s case that Mitchell testified she saw Robinson counting the money prior to 1:00 although the first robbery produced no money and the second robbery was committed after 1:00; the missing hammer was described as almost new although the hammer used in the robbery was described as old and rusty; other people had access to the missing knife and hammer, including Mitchell’s brother; neither victim could positively identify Robinson as the robber; several witnesses, including a police officer who questioned Robinson at about 10:45 p.m., testified that they had seen Robinson dressed in a pinstriped suit that night; and Helms, a key state witness, admitted that she was pressured by the state to testify.

Robinson maintains that the state’s circumstantial evidence is insufficient to support the guilty verdicts. In viewing the evidence against Robinson in the light most favorable to the state as we do, Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982), we have no hesitancy in holding the proof was sufficient.

The fact that witness Helms may have been pressured to testify is of no consequence on appeal. It was for the jury to determine the credibility of Helms’ testimony. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). We do not “pass upon the credibility of the witnesses and [have] no right to disregard the testimony of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon.” Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).

Robinson was seen near the scene of the first robbery wearing a jacket like the one worn both by the robber and by the man seen hanging around Mike’s Cafe. There was testimony that Robinson asked for a knife shortly before the robbery and that a knife like the one used in the crime was missing from the house where he was staying. The victim of the first robbery told police he thought Robinson was his assailant. Finally, Robinson placed himself at the scene when he told the police he saw Polk robbed by another man. In the same breath, Robinson claims he won money from the assailant later the same evening. We stated in Surridge v. State, 279 Ark. 183, 650 S.W.2d 183 (1983), that “[i]t is a familiar rule that a defendant’s false and improbable statements explaining suspicious circumstances against him are admissible as proof of guilt.”

No money was obtained in the earlier robbery. Later that night, a man fitting the same general description and also wearing a beige or khaki jacket and gold toboggan cap, committed the second robbery. A claw hammer was the weapon this time, and there was testimony that a hammer was missing from the house where Robinson was staying. Although the estimated time was shortly before the second robbery, there was testimony that Robinson was seen dressed in beige and counting money late that night.

Based on this series of facts, it was reasonable for the jury to conclude that Robinson committed the first robbery, and, having failed to get any money, committed the second robbery later that night. The evidence is substantial and is sufficient to support the guilty verdicts.

Affirmed.


text:
    Pat YANCEY, et al. v. THE BEVERAGE HOUSE OF LITTLE ROCK, INC., et al.
    86-197
    723 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Gary Eubanks and Associates, by: Gary L. Eubanks and James Gerard Schulze, for appellant Pat Yancey.

      Howell, Price, Trice, Basham & Hope, by: William H. Trice, III, for appellant Herbert Thompson, et al.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

This is an appeal asking us to reconsider our recent decision in Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986), and our decision 22 years ago in Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). The question is: should we deviate from our cases and the common law and impose liability on those who sell intoxicants for injuries caused by those who drink intoxicants? The answer is no. Once again, after considering all the arguments, we decide not to change our position.

The sale in this case is alleged to have been illegally made to a minor, twice on the same evening, the second time while the minor was intoxicated. The minor was then involved in a one-car accident in which two teen-aged passengers were killed. The appellants sought recovery from the appellee liquor store for wrongful death. The trial court granted summary judgment for the appellees on the basis that the appellants failed to state a cause of action against the appellees. The facts and arguments in this case are similar to those in Milligan.

We explained in Carr why we considered this to be a decision for the legislature rather than the courts. The implications are far-reaching; if such a public policy is adopted, it should be by the legislature, not us.

It is suggested that the legislature’s hands are bound because of language in Carr and Milligan, stating “. . . it is the consumption of intoxicants, not the sale standing alone, which is the proximate cause of the injuries.” The argument is made that the legislature cannot determine proximate causation, only the courts can decide that, and we have precluded legislation by this statement.

We meant to place no such roadblock to legislation commonly called a “Dramshop Act.” On some questions of legal liability, we have deferred to the legislature. See Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968); Henshaw v. Henderson, 235 Ark. 130, 359 S.W.2d 436 (1962).

Affirmed.


author: John I. Purtle, Justice.

text:
    Billie E. COPELIN v. Jerry CORTER and Gloria CORTER
    86-152
    724 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987
    [Rehearing denied March 16, 1987.]

      Jeff Duty and W.H. Taylor, for appellant.

      R.H. “Bud” Mills, P.A., for appellee.
   John I. Purtle, Justice.

The complaint in this case alleged fraud in the sale of certain real estate. The case was tried before a jury in the Benton County Circuit Court. A verdict in favor of the appellees was awarded in the amount of $8,000.00 compensatory damages and $5,000.00 punitive damages.

The appellant submits four points for reversal on appeal. However, in essence they amount to a challenge of the sufficiency of the evidence. For the reasons stated below, we find that the trial court did not commit reversible error and that there is sufficient evidence to support the jury’s award.

The facts of the case reveal that the parties to this action met on November 24, 1982. At that time the appellant informed the appellees that he had some property for sale. A few days later the appellees inspected the five acre tract of land which contained a residence and a poultry house. One well provided water to the entire property.

The appellant had listed the property with several agencies prior to his contact with the appellees. In each instance he declared there was a “good well” on the property. The appellees testified that the appellant told them that there was a good well when they first discussed the possibility of purchasing the property. It is undisputed that the appellees inspected the house, including the basement level, prior to entering into a sale agreement on December 2, 1982. On December 4, 1982, there was a discussion between the appellant and the appellees concerning the dampness or water in the basement. On this date the appellees reinspected the premises and found much water in the basement. The appellant told the appellees that when water appeared in the basement his wife usually mopped it up and that there was never very much water seepage.

Sometime in 1983 the appellees obtained an estimate in the amount of $5,000.00 for labor and materials necessary to repair and waterproof the basement. Soon after the appellees moved into the property, in December of 1982, problems developed with the well and pump, resulting in a shortage of water. Although the appellees continued to reside on the property and produce broilers, they continued to have problems with the well. They replaced the pump, but the water supply was not improved. The cost to replace the pump was approximately $800.00.

There is no indication that the appellees made any type of demand or notified the appellant of their complaints. The suit was filed on April 13, 1984. A motion for a directed verdict, at the close of all the evidence, was made by the appellant. The motion was directed at the sufficiency of the evidence relating to the well and that there had been no showing of fraud. Without objection the facts were submitted to the jury on a general verdict form. There was no motion for judgment notwithstanding the verdict.

We have held that there are five elements necessary to prove fraud in a tort action. There must be: (1) a false representation, (2) knowledge that the representation is false (or that there was not a sufficient basis of information to make the representation), (3) an intention to induce action or inaction, (4) justifiable reliance upon the representation, and (5) damages resulting from such reliance. MFA Mutual Insurance Company v. Keller, et al., 274 Ark. 281, 623 S.W.2d 841 (1981). Before a party may question the sufficiency of the evidence in a jury trial, he must comply with A.R.C.P. Rule 50(e). The present appellant did not properly request the trial court to rule on the sufficiency of the evidence as it related to the basement of the dwelling. Therefore, we will not consider this matter on appeal.

We will not overturn a jury verdict unless it is clearly the result of passion or prejudice. Duggar v. Arrow Coachlines, Inc., 288 Ark. 522, 707 S.W.2d 316 (1986). Upon appellate review we consider the evidence in the light most favorable to the verdict and if supported by substantial evidence, we will affirm. Duggar v. Coachlines, Inc., supra; Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984).

Non-disclosure of facts may be a basis of recovery for fraud under certain circumstances. Vaught v. Satterfield, 260 Ark. 544, 542 S.W.2d 502 (1976). However, the failure to disclose material facts will not support a verdict for fraud if there is no reliance on the non-disclosure.

During the course of the trial, testimony was presented that the appellant had affirmatively represented that there was a good well on the property. Also, testimony and evidence was presented that the well was not a good one. Cost estimations were given which indicated that to relocate the well and to install a new pump and equipment would cost as much as $7,200.00, depending upon the depth required to reach a good supply of water. If a good water supply were discovered closer to the surface, the cost would be much less.

For the above reasons we hold that there was substantial evidence from which the jury could have concluded that there was a fraudulent representation concerning the well and that the replacement cost could be as much as $7,200.00. In addition the appellees had already spent over $800.00 in attempting to remedy the water situation. Therefore, we conclude that the jury’s award was proper.

Affirmed.


author: John I. Purtle, Justice. David Newbern, Justice,

text:
    Malcolm SHAMOON v. Marian S. TOMBRIDGE, Executrix of the ESTATE of Abraham S. SHAMOON
    86-148
    723 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Gill, Johnson, Gill & Gill, by: Kenneth Johnson, for appellant.

      David F. Gillison, Jr., for appellee.
   John I. Purtle, Justice.

The trial court admitted the testator’s will to probate. His son, an only child, a minor beneficiary under the will, appeals from that decision on the ground that his father died intestate. We agree with the appellant that the will was erroneously admitted to probate because it does not comply with the Arkansas law.

The will in this case was executed on May 31,1985, while the decedent was in the hospital. He died on June 4, 1985. The signatures of two witnesses were affixed to the will. The decedent made an “X” on the line for his signature which then read “his X mark.” Also, a proof of will was executed by the attesting witness and acknowledged by a notary public. The trial court held that the notary public’s signature on the proof of will form amounted to a third signature.

The execution of this will is controlled by Ark. Stat. Ann. § 60-403 (Repl. 1971). This statute specifically requires that the testator, if he signs by mark, must have a witness who signs the document attesting to his mark or if the testator so directs someone else may sign his name for him but in such case the witness must state on the will that the testator’s name was written at the request of the testator. The statute also requires that two attesting witnesses must sign at the end of the instrument.

We have interpreted this statute to be mandatory in order to validate a non-holographic will. In Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963), we considered a fact situation almost the same as in the present case. In Green the testator signed by an “X.” Also, he had two attesting witnesses. “We held sub-section (3) and (5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid.” Green at p. 831. We reached the same result in Priolo v. Priolo, 237 Ark. 798, 377 S.W.2d 29 (1964). Since the will did not comply with the Arkansas law, it should not have been admitted to probate.

Reversed and remanded.

Holt, C.J., and Newbern, J., concur.

David Newbern, Justice,

concurring. This case is closer than the majority opinion suggests. Absent evidence of fraud or undue influence, neither of which is even argued here, our tendency has been to relax technical requirements so as to implement the testator’s intent. See, Note, 4 U.A.L.R. L.J. 139 (1981).

In Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963), we held that we interpret the provisions of Ark. Stat. Ann. § 60-403(3) and (5) to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid. Quoting Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1950) we said:

It is essential to due execution of a will, that it be signed or subscribed by the number of witnesses required by the law governing the particular will being made, and subscription by fewer renders the transaction a nullity.

We stated in addition that parol evidence of the scrivener in that case could not supply the deficiency of the required additional witness’s signature. The will in question had only been signed by two witnesses below the mark of the testator. The case was reversed because the probate judge had admitted the will to probate. We followed Green v. Smith, supra, in Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (1964), and Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974). We invalidated the will in Priola v. Priola, supra, where there were only two subscribing witnesses and upheld the will in Patrick v. Rankin, supra, where the mark was witnessed and two others witnessed the will.

My only reason for agreeing with the result reached here is that the third signature, that of Jerry Mazzanti, expressly purported to acknowledge only the signature of the other witnesses and not the mark of the decedent. Had he simply placed his name on the will as a witness, I would have agreed with the trial judge.

Holt, C.J., joins in this concurrence.


text:
    SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT v. Wali MUHAMMED
    86-82
    723 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Webster L. Hubbell and Jim Hunter Birch, of the Rose Law Firm, A Professional Association, for petitioner.

      Wali Muhammed, pro se.
   Robert H. Dudley, Justice.

The Supreme Court Committee on Professional Conduct filed an original action in this Court asking that the respondent, Wali Muhammed, be held in contempt of this Court for refusing to appear at a Committee hearing involving two complaints which had been filed against him. A Show Cause Order issued by this Court ordered respondent to appear and show cause why he should not be held in contempt. Pursuant to Rule 17 of the Rules of the Supreme Court, the Honorable John B. Plegge was appointed Master to take evidence, determine issues of fact, and make recommendations to this Court. The Master heard the evidence in an extensive hearing, made findings of fact, and made recommendations to this Court. The respondent has objected to the report of the Master. We have reviewed the transcript of the hearing and accept the report of the Master. We hold that respondent was given notice of the hearing before the Committee on Professional Conduct and that he refused to appear before the Committee.

Two complaints were filed with the Supreme Court Committee on Professional Conduct alleging misconduct on the part of respondent. Reprimands were issued by the Committee based upon the complaints. Respondent requested a subsequent hearing on the complaints pursuant to Rule 5(B)(1) of the Rules of Professional Conduct. By letter dated February 24, 1986, the Committee’s Executive Secretary notified respondent that a hearing on the two complaints was scheduled for 9:30 a.m. on March 8,1986. The Committee also sent a letter dated March 3, 1986 to respondent confirming the March 8 hearing date.

On March 4,1986, the Executive Secretary of the Committee received a letter from respondent in which he refused to have a hearing regarding one of the complaints because it would breach the attorney-client relationship. Respondent also stated in the letter that he would be out of town on March 8 and asked that the hearing date for the other complaint be rescheduled. Upon receipt of this letter, the Executive Secretary wrote and hand-delivered to respondent’s office a letter informing him that because of the impending hearing date, the schedules of the Committee members, and the fact that complainants and witnesses had been notified and planned to attend, the hearings could not be postponed or rescheduled. The hearings were held as scheduled on March 8, but respondent was not present.

In objecting to the Master’s Report, respondent first argues that he was denied procedural due process because the Committee failed to give him actual notice of the March 8,1986 hearing. We find no merit in his argument. Pursuant to ARCP Rule 53(e)(2), we accept the Master’s findings of fact unless they are clearly erroneous. In his report, the Master found that respondent had notice of the March 8 hearing. Giving due regard to the evidence presented at the Show Cause hearing, the Master’s finding in this regard is not clearly erroneous. Respondent himself admitted at the hearing that he had notice of the March 8 hearing on or about February 24 in that he discussed it with his secretary.

Respondent next argues that the rules regulating professional conduct require a minimum of twenty days notice before a hearing and that he was only given twelve days notice. Respondent cites no specific rule in support of this argument because there is none. Rule 7(B) of the Rules of Professional Conduct requires at least twenty days notice of the time of trial in situations where the Committee elects to file a complaint with the circuit or chancery court. The Committee did not file such a complaint in the instant case, and therefore, Rule 7(B) is not applicable.

Several of the respondent’s arguments are based upon his contention that the Arkansas Administrative Procedure Act applies to the Supreme Court Committee on Professional Conduct. Respondent is mistaken. Arkansas Stat. Ann. § 5-701 (a) defines “agency.” Courts are specifically excluded from the definition. The Committee on Professional Conduct is an arm of this Court and the Administrative Procedure Act does not apply to it. See Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987).

Finally, respondent argues that the Committee, the Supreme Court, and two circuit court judges have acted in concert to violate his civil rights by not following proper procedure in suspending his license. On the contrary, proper procedures were followed in suspending respondent’s license to practice law.

The respondent is held in contempt of this Court and fined five hundred dollars ($500.00).

Glaze, J., not participating.