Arkansas Law Review

Hunter v. Runyan, 2011 Ark. 45 (2011)

          An issue of first impression arose on February 9, 2011, when the Supreme Court of Arkansas was met with the challenge of determining whether subject matter jurisdiction existed between parties in a class-action settlement as the case was no longer adversarial in nature.  Because it is well settled that subject-matter jurisdiction “is considered to be a court’s authority to hear and decide a particular type of case,” the court’s decision was highly significant to all future class-actions in Arkansas.

          The issue developed when a class action lawsuit of policyholders of supplemental cancer insurance entered into a settlement agreement with the insurance company.  A group of plaintiffs objected to the settlement and filed separate motions to intervene and to stay the circuit court’s proceedings.  The circuit court approved the settlement agreement and dismissed all class-member’s claims with prejudice.  The appellants appealed the approval of the settlement arguing, as a threshold matter, that the settling plaintiffs and the insurance company did not have subject matter jurisdiction because the parties had reached an agreement.  The argument being that without adversity between the parties, there is no standing and thus, no subject matter jurisdiction.

          The court stated first that Arkansas jurisprudence is not similar to federal jurisprudence in this area regarding subject matter jurisdiction.  Arkansas law does not follow the federal concepts of justiciability.  Rather “circuit courts are established as the trial courts of original jurisdiction of all justiciable matters and otherwise assigned pursuant to [the Arkansas] Constitution” and the requirement of “cases and controversies” is limited to federal cases under the U.S. Constitution.  It then quoted an Arkansas case in the proposition that “an Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter ‘under any circumstances’ and is ‘wholly incompetent to grant the relief sought.’”  The court determined that subject-matter jurisdiction, according to these facts, was governed by Rule 23(e) which requires that “the court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.”  The language of the rule states that is mandatory, which of course means that issues of justiciability should not intervene.  Accordingly, the settling plaintiffs and the insurance company had subject matter jurisdiction.

By: Brandon Tittle

Lawrence v. City of Texarkana, 2011 Ark. 42 (2011)

          The Supreme Court of Arkansas delivered an opinion on February 9, 2011 that clarified the interpretation of two important statutes for fire and police departments. The opinion analyzed when fire and police departments may terminate an employee for impermissible conduct that violates a regulation not adopted by the City Board of Directors.

          In this case, the appellant was a fire department employee who fled the scene of a domestic dispute disturbance and was subsequently arrested by the police.  The appellant was unable to make it to work due to the arrest but switched shifts with a fellow employee.  As a result, the Department discharged the appellant because the circumstances surrounding the arrest and his inability to make it to work violated the Department’s disciplinary policy.  The appellant argued his termination was wrongful because he was fired according to a rule that clearly dealt with the day-to-day operations and the only body that could adopt such a rule, pursuant to Ark. Code Ann. § 14-51-301(d), was the City Board of Directors.

            The two statutes implicated are as follows:

            Ark. Code Ann. § 14-51-302. Departmental rules and Regulations.

            All employees in any fire or police department affected by this chapter shall be governed by rules and regulations set out by the chief of their respective  police or fire departments after rules and regulations have been adopted by the governing bodies of their respective municipalities.

            Ark. Code Ann. § 14-51-301. Rules and regulations generally.

            (a)(1) The board provided for in this chapter shall prescribe, amend, and enforce rules and regulations governing for the fire and police departments of their respective cities.

            (d) The commission shall adopt such rules not inconsistent with this chapter for necessary enforcement of this chapter, but shall not adopt any rule or rules which would authorize any interference with the day-to-day management or operation of a police or fire department.

          The court concluded that “as long as the rules approved by the Commission do not interfere with the Department’s day-to-day operation, they are validly approved in compliance with state law.”  This allowed section 14-51-301 to be read harmoniously with section 14-51-302.  The court determined that the Commission’s enforcement of the Department’s disciplinary policy, which allows termination for criminal conduct, was not an interference with the Department’s day-to-day operations.  Thus the test is not whether the conduct falls within the category of day-to-day activities, but whether the rule interferes with the Department’s ability to carry out its normal operations.

By: Brandon Tittle

Dowty v. Riggs, 2010 Ark. 465 (2010)

          On December 2, 2010, the Supreme Court of Arkansas held, yet again, that the tort of negligent infliction of emotional distress is not recognized as a cause of action in the state of Arkansas.  Although the controversial cause of action is accepted in the majority of jurisdictions, the court decided the facts in Dowty v. Riggs did not warrant a reversal of common law.  They did, however, leave the possibility open that facts in a future case could justify the creation of the new tort.

          The facts in Dowty were relatively simple.  The appellants drove to the house of the appellees to help with yard work when the son of the appellees approached the vehicle and shot one of the appellants in the arm with a .25-caliber pistol.  The other two appellants witnessed the event and claimed emotional distress despite the lack of physical injury.  The appellee was acquitted of all charges because of mental disease or defect and the appellants decided to file a claim against the appellee’s mother for the negligent infliction of emotional distress.  The circuit court granted summary judgment because the cause of action was not recognized in Arkansas so the appellants appealed contending their damages warranted a remedy.

          The court began by stating that it will “tread cautiously when deciding whether to recognize a new tort” and will “decline to recognize a new cause of action if there are other sufficient avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff.”  In its analysis, the court reasoned that the tort hasn’t been recognized because of the long standing belief “there can be no recovery for fright or mental pain and anguish by negligence, where there is no physical injury.”  Without physical injury, previous courts have determined damages to be too remote and difficult to ascertain.  The court then compared the facts to similar cases in jurisdictions which recognize the tort and determined that other jurisdictions were “unwilling to allow recovery for the breach of a landowner’s duty to an invitee, a duty that is broader than the duty owed to the appellants, who were mere licensees.”  The concluded that the appellants “failed to demonstrate that great injury or injustice would result were [it] to continue to uphold the prior decisions of this court.”

By Brandon Tittle

Carr v. Nance, 2010 Ark. 497 (2010)

          The Supreme Court of Arkansas, on December 16, 2010, was faced with the challenge of analyzing the landowner immunity exception under the Arkansas Recreational Use Statute for malicious conduct and ultra-hazardous conditions in Carr v. Nance.  Generally, landowners in Arkansas experience a high level of immunity from liability to individuals who enter the property for recreational purposes.  This immunity, however, can be eliminated in extreme circumstances, as was seen in Carr.

          In Carr, the appellee was a sixteen year old boy who enjoyed riding four-wheelers.  Occasionally, the appellee drove his four-wheeler on the appellant’s land with consent.  On the day in question, the appellee was driving his four-wheeler on the appellant’s land when his neck was struck by an unmarked steel cable that was strung across the road by two trees.  The cable quickly threw the appellee to the ground severing his trachea and esophagus.  The appellant testified that the use of the cable was intended to prevent trespassers but agreed that it should have been paired with visible warning signs. The appellee was awarded compensatory and punitive damages and the circuit court affirmed under the landowner  immunity exception for recreational use. The appellant argued that the elements for the cause of action were not met by the appellee.

          Pursuant to Ark. Code Ann. § 18-11-301, landowners are immune from liability to persons entering the landowner’s property for recreational purposes.  The exception to liability at issue in Carr requires a “malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use or activity actually known to be dangerous.” Ark. Code Ann. § 18-11-307(1). The main elements at issue were whether the appellant’s actions were malicious and whether the use of the cable created an ultra-hazardous condition on the property.

          The appellant urged the court to interpret that statute as requiring actual malice as opposed to implied malice. This was due to the appellant’s argument that he did not act with actual malice, which was defined in the case as “the intentional doing of a wrongful act without justification or excuse.” The court decided not to issue a ruling concerning the interpretation of “malicious” because the jury was not instructed on the meaning of the term and because it was submitted to the jury under a general verdict form.  Accordingly, the court did not speculate the conclusions of the jury as to the meaning of “malicious” and the argument about its correct interpretation under the statute lives to fight another day.  

          In order to satisfy the ultra-hazardous element, the jury was instructed to determine whether the activity “(1) cannot be performed without a risk of serious harm to the person or another, regardless of any precautions taken’ and (2) does not normally occur in that community.” The court concluded that “it was not the hanging of a cable per se that constituted the ultra-hazardous activity, but the hanging of an unmarked cable at a dangerous height in an area in which the landowner knows there are people traveling on four-wheelers.”  The circuit court ruling was affirmed.

By Brandon Tittle

Montoya v. State, 2010 Ark. 419 (2010)

          On November 4, 2010, the Arkansas Supreme Court was met with an issue of first impression regarding Arkansas’s first-time offender statute in the context of prior expunged guilty pleas in other states.  The result of this ruling shed light on an area of criminal law crucial to Arkansas defendants: whether individuals can defer and expunge guilty pleas in one state under a first-time offender statute then move to Arkansas and avail themselves of the benefits of Act 346 for new and different charges.

          In Montoya v. State, the defendant pled guilty to two felonies in New Mexico and the court dismissed the matter with prejudice and without adjudication of guilt or conviction.  The defendant used a first-time offender statute to defer and later expunge the New Mexico charges.  Afterwards, the defendant was charged with new crimes in the state of Arkansas where he attempted to expunge them under Act 346, a similar first-time offender statute. The State mainly asserted that the defendant was only permitted to use Act 346 once and that he exhausted it in New Mexico.  The court analyzed the language in Ark. Code Ann. § 16-93-303(a)(1)(A), which states:

          “Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or district court, in the case of a defendant who has not been previously convicted of a felony, without making a finding of guilt or entering a judgment of guilt and with the consent of the defendant may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.”

          “Conviction” was previously defined by the court as “the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged.” Garling v. State, 334 Ark. 368, 372, 975 S.W.2d 435, 437 (1998).  The court applied this requirement to only those defendants who availed themselves of the Arkansas statute and not out-of-state ones.  The court looked to the intent of the General Assembly in its interpretation of Ark. Code Ann. § 16-93-302(a)(2) to confirm this reasoning.  Moreover, because the defendant completed his probation under the New Mexico statute, in lieu of a fine, and because his guilty plea was deferred and never accepted, the court reasoned it did not constitute a “conviction.”  Accordingly, the Arkansas Supreme court ruled that the defendant’s expunged guilty under New Mexico’s first-time offender statute did not count as a prior conviction in Arkansas.  Therefore, he could avail himself to the first-time offender statute yet again.

          This result could change with the amendment of Act 346, which was not in effect at the time of the defendant’s sentencing. Subsection (c) and (d) now permit a deferred guilty plea under Act 346 to constitute a felony “conviction.”  The amendment, however, would need to overcome the legislative intent that only in-state convictions are covered by Ark. Code Ann. §§ 16-93-302-03.

Posted by Brandon Tittle

Subteach USA v. Williams, 2010 Ark. 400 (2010)

          In a recent Arkansas Supreme Court case decided on October 28th, it was held that substitute teachers who are not directly employed by an “educational institution” but by a private placement company are still disqualified from receiving between-terms (summer/winter break) unemployment benefits. 

          The appellee in Subteach USA v. Williams was a substitute teacher who filed for unemployment compensation during the summer months.  She was not directly employed by the school district but by a private employer who engaged in the hiring, training, and placement of substitute teachers.  Her argument was that she was no longer working for the school district because her assignment had ended.

          The Arkansas Supreme Court analyzed the statutory language of Ark. Code. Ann. § 11-10-509, which governs the exclusion of benefits for between term employees of educational institutions.  The statute states that “with respect to service performed in an instructional, research, or principal administrative capacity for an education institution, benefits shall not be paid based on services for any week of unemployment commencing during the period between two (2) successive academic years or terms.” 

          In an earlier decision in the same case, the Department of Workforce Services found that the appellee was not prohibited from receiving unemployment compensation during the summer because her employer was not deemed an educational institution pursuant to the statute.  The Arkansas Supreme Court, in this issue of first impression, reasoned that the appellee was employed by a private company to perform services “for” an educational institution and that it was of no relevance whether she was actually employed by the school.  Thus, the court concluded that the appellee/substitute teacher was excluded from receiving benefits by the statute.

Posted by Brandon Tittle

Wagner v. State, 2010 Ark. 289 (2010)

          The Arkansas Supreme Court, in an issue of first impression, ruled that the jurisdiction of a “judicial officer” to issue a search warrant is not limited to the county in which he/she was elected. The issue arose with the adoption of Ark. Code Ann. § 16-17-929 and Amendment 80, § 7, which establish additional rules of jurisdiction.

          On October 21^st, the court dismissed the appeal in Wagner v. State from the Mississippi County Circuit Court by concluding that the statutory language did not bar the district court judge from issuing a warrant outside of his own district. In Wagner, the appellant contended that the District Judge for the Osceola District did not have jurisdiction to issue a search warrant for the Chickasawba District.  The appellant relied on the definition of “a judicial officer,” identified in Rule 1.6 of the Arkansas Rules of Criminal Procedure, the unambiguous wording of § 16-17-929(c), and the power delegated to the General Assembly to establish jurisdiction under Amendment 80,  to determine that search warrants are limited to the judicial officer’s own district.

          The court agreed with the State that the meaning of “any judicial officer” was not affected by the enactment of § 16-17-929 and that the construction of the statute should be read in conformity to § 16-82-201(a), as defined in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). In Brenk, the court noted that § 16-82-201 did not “give any indication that the jurisdiction of a judicial officer in issuing search warrants is limited to the county in which the judicial officer was elected or appointed.” Id. at 590, 847 S.W.2d at 7.  In its holding in Wagner, the court stated that the adoption of both § 16-17-929 and Amendment 80 did not overturn the precedent in Brenk.  The newly adopted statutes were perceived as affecting the judge’s territorial jurisdiction to try a case, but not his/her authority to issue a search warrant.  Therefore, Brenk still applies and Arkansas district court judges are not limited to their own district when issuing search warrants.

Posted by Brandon Tittle

Forrester v. Daniels, 2010 Ark. 362 (2010)

          In an opinion delivered on September 30th, the Arkansas Supreme Court granted the petitioner’s motion to expedite the proceedings in her suit against the Secretary of State of Arkansas in what may be an important case to Arkansas voters.  The proceedings involved a petition for injunctive relief and writ of mandamus to order the Arkansas Secretary of State to strike the certified ballot title for the proposed constitutional amendment No. 2 from the November 2, 2010 election.  The original complaint was filed on September 24th.

          House Joint Resolution (HJR) 1004, numbered and referred to as Issue No.2, will increase the maximum rate of interest for consumer loans to 17% and cancel the former monetary penalties set out in the constitution for usury violations.  The present usury limit on interest set forth in the Arkansas Constitution is 5% over the Federal Discount Rate, which together averages around 10%. 

          The petitioner’s main argument is that the ballot will constitute a manifest fraud on Arkansas voters (the ballot title is set forth below) for omitting crucial information from the title.  The petitioner also argues that the title for the proposed amendment No.2 does not adhere to the mandatory requirements of Ark. Code Ann. § 7-9-204, which requires that a proposed constitutional amendment must use the title of the Joint Resolution while the Joint Resolution was being considered by the Arkansas General Assembly.  The title of HJR 1004 (issue No.2) that was used while being considered and adopted by the member of the Arkansas House of Representatives was the following:

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF ARKANSAS CONCERNING THE INTEREST RATE LIMITS

          The ballot title as seen above for Issue No. 2 was changed only 43 days before the General Election to read:

AN AMENDMENT CONCERNING INTEREST-RATE LIMITS AND THE ISSUANCE OF GOVERNMENT BONDS TO FINANCE ENERGY-EFFICIENTY PROJECTS

          Oral argument regarding the petitioner’s request for injunctive relief and writ of mandamus is set for October 21, 2010 in time for the November 2nd elections. The outcome of this case will be followed by the recent development blog of the Arkansas Law Review.

Posted by Brandon Tittle

Talley v. State, 2010 Ark. 357, __S.W.3d__ (2010)

          On September 30^th, 2010, the Arkansas Supreme Court failed to extend the protections provided by the Fifth Amendment right against self incrimination to an officer’s repeated request for DNA testing.  In its holding in Talley v. State, the court determined that DNA testing was equivalent to blood sampling, a process which prior case law concluded was void of the constitutional safeguard. 

          In Talley, the police asked the defendant in an interrogation room to submit to a DNA test after the right to remain silent had been invoked by the defendant.  The defendant, after three repeated attempts by the police to obtain the testing, finally succumbed to their request.  He stated, “Y’all are going to get it anyway, right?”  The DNA was a direct match to the crime in question.  The defendant then moved to suppress the evidence in violation of his Fifth Amendment right to avoid self incrimination. 

          The court held that the protections provided by the Fifth Amendment against self incrimination only applied to incriminating communicative statements and that a request for DNA elicits only a “yes or no” response, rather than a communicative response.  The decision was closely derived from previous cases involving the right to counsel when blood samples were requested.  In all of these closely related cases, the evidence that was obtained was considered to be physical rather than testimonial in nature.  The distinction between DNA testing and blood sampling was deemed insignificant by the Talley court.  The court’s conclusion was that the prohibition against commencing further communication after a defendant has invoked his Miranda rights does not protect a defendant from requests for DNA samples.

Posted by Brandon Tittle

Fitton v. Bank of Little Rock, 2010 Ark. 280, _S.W.3d_ (2010)

          In June, the Arkansas Supreme court issued an important decision for those who seek to create or who already maintain a revocable trust.

          In a case of first impression, the Arkansas Supreme Court decided that the Arkansas homestead exemption—which protects debtors from losing their primary place of residence to creditors—extends to property held by spouses in a revocable trust.  The case of Fitton v. Bank of Little Rock is a great addition to Arkansas’s property law with respect to the popular and widely known homestead exemption.  

          In Fitton v. Bank of Little Rock, decided on June 3, 2010, the Arkansas Supreme Court was faced with the interesting question of whether property owned in a revocable trust by spouses as tenants in common with a right of survivorship was subject to the homestead exemption.  In this case, two individuals prior to marriage created a separate revocable trust and executed a quitclaim deed whereby the future spouses deeded their one-half interest in the residence to their respective trust as tenants in common. 

          After marriage, but before divorce, the husband individually signed a promissory note to institute a mortgage with the Bank of Little Rock for his undivided one-half interest.  The wife was left in the dark about the mortgage at the conclusion of the divorce and was conveyed the husband’s one-half interest in the real estate in the property settlement.  The wife did not pay the outstanding mortgage and the Bank of Little Rock sued to foreclose on the property. The wife, in answering the complaint, argued that she did not lose her homestead exemption by conveying the property to a revocable trust in which she was the settler, trustee, beneficiary, and occupant of the real estate.  The trial court granted partial summary judgment because, in their view, the homestead exemption did not apply to a revocable trust.

          The Arkansas Supreme Court, in reversing and remanding the trial court’s decision, held that a married person with a beneficiary interest in a property who maintains a principal residence is entitled to a homestead exemption, although the title of the property is held by a revocable trust.    The court used the same definition of the homestead exemption used in the context of property tax assessments on property conveyances.  The definition included “a dwelling owned by a revocable trust and used as the principal place of residence of a person who formed the trust.”  The court then applied the same rationale from the recent case of Richardson v. Klaesson, 210 F.3d 811 (8th Cir. 2001), which provided persuasive support for the court’s holding that “a person in possession as the beneficiary of a trust [can] claim the protection of the homestead exemption.”  Therefore, the homestead exemption was deemed to apply to revocable trusts, although maintaining the property as the individual’s principal residence was perceived as an important factor.

Posted by Brandon Tittle