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ROBERT J. GLADWIN, Judge h The Arkansas Workers’ Compensation Commission' (Commission) denied appellant Cheri Stoker’s claim for additional medical testing and treatment, finding that they were not reasonably necessary for the compensable medical injuries Stoker sustained on December 5, 2014. In making its decision, the Commission relied on Dr. Steven Cathey’s report of the independent medical examination (IME) he performed. Stoker contends on appeal that the IME should not have been admitted into evidence and that the Commission erred by relying on it. We affirm. I. Facts Stoker worked as a driver and .trainer for appellee Thomas Randal Fowler, Inc., a trucking company in Texarkana., Arkansas, when she sustained compensable injuries to her neck, back, and right knee on December 5, 2014. Her injuries were the result of her truck being hit from behind after she had unbuckled her seat belt in preparation for delivering a package. Stoker was treated over the, course of- ¡a year, received an IME, and was. seen by |2Pr. Pierce Nunley after the Commission granted her change-of-physician request. When Dr. Nunley recommended additional testing and treatment on December 17, 2015, appellee controverted Stoker’s claim. At the June 2, 2016 hearing before the administrative law judge (ALJ), Stoker’s counsel objected to the admission of the IME report prepared by Dr. Cathey. Counsel argued that Stoker had not been informed that Dr. Cathey was to perform an IME and that Stoker went to the appointment under the assumption that she would be medically treated. Counsel argued that Dr. Cathey’s report should be excluded because Stoker did not give proper or informed consent. Counsel further argued that Stoker was not provided through discovery the introductory letter mentioned in Dr. Cathey’s report. At the close of the hearing, the ALJ posed more questions concerning the IME, including whether appellee’s counsel had seen the introductory letter mentioned in Dr. Cath-ey’s report. Counsel stated that he had tried to obtain the letter but that his “adjusters had changed up,” and he had never received it. Stoker’s counsel also stated that had he been given notice, he would have objected to his client’s seeing Dr. Cathey. The ALJ took under advisement the issue of the report’s admissibility. The ALJ also noted for the record that Respondent’s exhibit 2 was a surveillance video of Stoker that he would view following the hearing, Stoker testified about the circumstances of the automobile accident that resulted in her compensable injuries on December 5, 2014. She said that she had not been having any neck problems before the accident; but since the accident, she could not turn her head I «“right all the ,way to turn to look back” when driving. She also said that she gets “really bad headaches” three to four times a week and that she had to “sleep kind of cock-eyed” at night. She said that since the wreck, she had muscle spasms down her arms and legs, in the front of her legs, and in her back and neck. She complained that she did not “have a grip” in her left hand. Stoker said that after she went to the emergency room following the wreck, she was sent to a company doctor for follow-up care — Healthcare Express (HCE). She was prescribed medication and given some restrictions' for work, but no light-duty work was available. She said that HCE prescribed physical therapy along with medication, and an MRI was ordered, after which HCE “wanted [her] to see a neurosurgeon,” She said, however, that she was sent to an orthopedist, Dr. Dwayne Daniels. Stoker said that Dr. Daniels ordered a nerve-conduction study and that he also talked about “some injections.” She testified that Dr. Daniels’s progress note was incorrect in stating that she had previously had an MRI of her neck and back, and she stated that the MRI was done only on her neck. She stated that Dr. Daniels recommended that she see a neurosurgeon for her neck and that he had recommended many times that she receive epidural steroid injections. She said that she had never received any injections in her neck and claimed that as she received therapy and used the TENS unit, her symptoms where somewhat relieved but were not totally resolved. In spite of the therapy and the TENS unit, she said that she still had continuing headaches, pain, and spasms and was unable to use her left arm and hand. She explained that when she tried to use her left arm or hand, she dropped anything over ten pounds and her hand shook and spasmed. | ¿Stoker testified that after the functional capacity evaluation (FCE), she followed up with Dr. Daniels, and he “thought [she] still needed to see a neurosurgeon and to continue with additional therapy.” She said that there was an appointment scheduled with Dr. Cathey, and she believed that she would receive from him the epidural steroid injections that Dr. Daniels had suggested. She received a letter from Dr. Cathey “on Friday to be there on Monday morning at 8:00.” Along with the letter was a form for her to fill out that asked for her height, weight, address, and the like. When she arrived at Dr. Cathey’s office, she was not told she was' there for any reason other than for medical treatment. She said that Dr. Cathey 'examined her for eight to ten minutes, that his hand “was shaking just as bad as mine was,” and that he touched her left hand and put his hand on the back of her neck for a second. She said that he then showed her the MRI of her neck and talked about it. He told her that he was not recommending any treatment. She said that she had understood that the FCE gave her a ten-pound weight limit and no lifting above her head — sedentary restrictions. She .testified that when she was discharged by Dr. Cathey, she was given no restrictions or limitations and was told that she. could return to full-duty work. She said that she did not agree with that. She also said that she signed papers on her way out of Dr., Cathey’s office, but she did not read them first. She said that she had not been aware at that time that Dr. Cathey had performed an IME. She said that she understood she was to return to Dr. Daniels after seeing Dr. Cathey. While she was driving to Dr. Daniels’s office, his nurse called and canceled her appointment. She said that even though her. .physical therapy had not been completed, Dr. Daniels had placed her . at maximum medical improvement (MMI). She said that she continued to | ¿receive physical therapy after Dr. Cathey’s appointment and that she completed that therapy. However, she claimed that when she tried to go back to work, she failed the company physical. ■ Stoker said that after she learned that Dr. Daniels had placed her at MMI, she obtained a change of physician and saw Dr. Nunley one time. She said that he examined her and that she was there about forty-five minutes. She said that he performed tests-and took measurements. She stated that he recomménded a selective nerve-root injection at C6-7 for palliative and diagnostic value. He also wanted an MRI of her lumbar spine, more physical therapy, and a trial of cervical and lumbar traction. She had not received any of the recommended treatment and has been seen only in the emergency room for medical care since seeing Dr. Nunley. On cross-examination, Stoker said that when the December 5, 2014 accident occurred, she had an open workers’-compensation claim pending on her left knee, and that claim was settled in September 2015. She said that she has full use of both knees. She also said that she has a third-party lawsuit against the man who was driving the vehicle that hit her truck but denied that her third-party claim would benefit if she did “not get better.” She said that she wanted to get better and get back to work. She admitted that Dr. Nunley had been mistaken in his report that she had a hip injury and that she had not had any CTs or EMGs. In an opinion filed July 19, 2016, the ALJ held that Dr. Cathey’s IME report was admissible. The ALJ relied on Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001), which held that the Commission is given a great deal of latitude in evidentiary ^matters and is not bound by technical or formal rules of procedure. The ALJ reasoned that both HCE and Dr. Daniels had requested that Stoker be evaluated by a neurosurgeon and that Dr. Cathey is a neurosurgeon. The ALJ found no evidence, authority, or rationale as to why Dr. Cathey’s letter discussing his evaluation and conclusions should not be admissible. The ALJ then found Dr. Cathey’s opinion that Stoker had reached MMI and was no longer in need of additional medical treatment to be credible. The ALJ accorded more weight to Dr. Cathey’s opinion than to Dr. Nunley’s opinion because Dr. Cathey’s opinion was consistent with Dr. Daniels’s opinion that Stoker had reached MMI. The ALJ also relied on the surveillance video of Stoker returning from grocery shopping on January 20, 2016, and carrying four sacks of groceries in her left hand, which was inconsistent with her testimony that she had lost the grip in her left hand. On January 27, 2017, the Commission affirmed and adopted the decision of the ALJ, and this appeal timely followed. II. Standard of Review Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id. When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark. App. 145, 151, 189 S.W.3d 449, 452 (2004). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id., 189 S.W.3d at 453. The issue is not whether this court might have reached a different result from the Commission; the Commission’s decision should not be reversed unless fair-minded pei-sons could not 17have reached the same conclusions if presented with the same facts. Id., 189 S.W.3d at 453. When a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Id., 189 S.W.3d at 453. The Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Godwin v. Garland Cty. Landfill, 2016 Ark. App. 498, at 4, 504 S.W.3d 660, 662. The Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Sandeford v. United Parcel Serv., Inc., 2014 Ark. App. 228, at 2, 2014 WL 1396660. It is not the role of the appellate court to weigh the evidence and judge the credibility of the witnesses. Id. Johnson v. PAM Transport, Inc., 2017 Ark. App. 514, at 5-6, 529 S.W.3d 678, 682. III. Evidentiary Ruling Stoker’s first argument is related to the Commission’s evidentiary ruling, which we consider under the following standards: The Workers’ Compensation Commission has broad discretion with reference to admission of evidence, and its decision will not be reversed absent a showing of abuse of discretion. Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998). The Commission is given a great deal of latitude in evidentiary matters; specifically, Arkansas Code Annotated section 11-9-705(a) (Repl. 1997) states that the Commission “shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure.” Additionally, the Commission is directed to “conduct the hearing in a manner as will best ascertain the rights of the parties.” Ark. Code Ann. § 11-9-705(a); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). In our view, it is clear that the Commission should be more liberal with the admission of evidence, rather than more stringent. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 344-45, 249 S.W.3d 149, 154 (2007) (citing Bryant, 76 Ark. App. at 69, 61 S.W.3d at 859); see also Clement v. Johnson’s Warehouse Showroom, Inc., 2012 Ark. App. 17, 388 S.W.3d 469. IsStoker contends that the IME should not have been admitted into evidence and that the Commission erred in relying on the IME in denying her claim. She claims that the key issue is whether it is proper for the insurance company to schedule an IME but not tell the claimant or the claimant’s lawyer that it is an IME and not an appointment for follow-up treatment as recommended by the then existing treating physician. Stoker cites the statutory provision stating that an injured employee may be required to submit to a physical examination and treatment by another qualified doctor, designated or approved by the Commission. Ark. Code Ann. § ll-9-511(a) (Repl. 2012). She also points to Commission Rule 099.30, which defines an IME as an examination and evaluation conducted by a practitioner different from the practitioner providing care. See Ark. Admin. Code 099-00.1 — 099.30(1) (H)(1) — (3) (WL current through Sept. 2017). The Rule further provides what should be included in an IME and how it should be billed. Id. Stoker argues, therefore, that an IME is not designed to treat but to generate proof to support either the claimant or the respondent. Stoker also references standards published by the American Medical Association for an IME and argues that Dr. Cathey did not comply with those standards. Stoker relies on her own testimony regarding her belief that she was going to see Dr. Cathey for epidural steroid injections, the description she gave of the examination performed by Dr. Cathey, and the explanation she gave about the cancel-ation of her last appointment .with Dr. Daniels. She sets forth the ALJ’s questions to her counsel regarding whether he would have agreed to allow Stoker to see Dr. Cathey had she been given notice of the IM-E. She contends, 18In other words, but for the ‘trickery’ of the insurance1 company it is likely Dr. Cathey would have never had the opportunity to declare Ms. Stoker at. MMI based, essentially, on exactly the same medical information that Dr. Daniels had available when he referred her for injections — injections she never • received. Stoker complains that the letter from the adjuster arranging the appointment with Dr. Cathey is absent from the record and has never been disclosed to her. She argues that the ALJ should have applied a negative inference to appellee’s failure to produce the introductory letter sent to Dr. Cathey and should have refused to allow his report.to be admitted as evidence unless the letter was submitted. Appellee contends that the admission of Dr. Cathey’s report was proper and within the Commission?s authority as a finder of fact. -We agree. It was not an abuse of discretion to admit the. report, and Stoker offers no authority or convincing argument to the contrary. Because the Commission is not bound by technical or statutory rules of evidence or by technical or formal rules of procedure; the Commission is empowered to allow whatever evidence it sees fit into the record. Ark. Code Ann. ■§ 1Í-9-705(a)(1). Stoker’s conclusion — had she known that Dr. Cathey was going to perform an IME, she would have refused to participate — -is not a basis upon which this court can reverse the Commission. Appel-lee points out that the Commission could have given Dr. Cathey’s report little or no weight had it seen fit, The Commission examined the available medical evidence and testimony and found. Dr. Cathey’s report to be convincing because it more closely resembled the reports by Dr. Daniels. Accordingly, we affirm the decision to admit the IME. IV. Additional Medical Treatment Stoker argues that with the addition of Dr. Cathey’s report, the ALJ. had four differing medical opinions. She argues that Dr, Daniels thought Stoker needed further treatment |inuntil Dr. ■Cathey became involved. Dr. Nunley suggested injections, further diagnostic testing, physical therapy, and cervical and lumbar traction. The company doctor who gave Stoker a physical to determine her fitness for work did not pass her. Therefore, the only doctor who gave up on further treatment was Dr. Cathey, described by Stoker as a “hired gun.” Stoker argues that the Commissipn should be’ concerned about regulation of the IME process in Arkansas. She argues that there is too much reliance on an IME and that “Respondents across the state have their (favorite’ • physicians, as do Claimants, of course.” She contends that the Commission should have used her case to establish a precedent that no claimant can be referred for an IME unless (1) the claimant is told that the examination will be an IME and‘the purpose of an IME is explained to the claimant, and (2) the claimant is given:a reasonable time to object to the physician chosen by the respondent. She urges this court to adopt these guidelines. She argues that the Commission arbitrarily disregarded the medical evidence of her failing the medical exam for returning to work and Dr. Nunley’s detailed findings and report. Further, she claims that Dr. Cathey’s opinion should be ruled to be inadmissible and that, at the very least, it should be given the least weight of all the opinions. She relies on Commissioner Hood’s dissent, wherein he opined that Dr. Cathey’s opinion should be given little weight because it was designed to save the employer money and Dr. Nunley had given Stoker a more thorough examination. We hold that the Commission did not arbitrarily disregard evidence. The ALJ’s opinion stated, Inin the present case, I find credible the opinion of Dr, Cathey indicating that by July 27, 2015, Ms. Stoker had reached maximum medical improvement and did not need any additional medical treatment including but not limited to physical therapy and injections. I accord more weight to Dr. Cathey’s opinion on these matters than the weight I accord Dr. Nunley’s opinion regarding the need for additional testing and treatment. I conclude that Dr. Cathey’s opinion is consistent with Dr. Daniels’ opinion shortly thereafter that Ms. Stoker had reached maximum medical improvement. In reaching this conclusion, I am also relying significantly on surveillance video of Ms. Stoker returning from grocery shopping on the evening of January 20, 2016. Although Ms. Stoker testified at the hearing that she has lost the grip of her left hand, this examiner counted four sacks of groceries that Ms. Stoker picked up out of the trunk one at a time with her right hand. She immediately transferred each of the four sacks into her left hand, so that when she walked from the car to the-door at-5:03 p.m., she carried four bags of groceries in her left hand and only one bag of groceries in her right hand. I did not find this activity consistent with her hearing testimony that she has lost the.grip in her left hand. Dr. Nunley’s opinion was not disregarded, it was just 'not given as much weight- as Dr. Cathey’s opinion. The Commission has the duty to resolve conflicting medical evidence, including medical testimony. Johnson, supra. Further, the Commission’s reliance on the video surveillance of Stoker carrying grocery sacks in her left hand shows that the choice of Dr. Cathey’s opinion over that of Dr,' Nunley was also based on the -record as a whole and on a determination of Stoker’s credibility. Having determined that the Commission committed no error in admitting Dr. Cath-ey’s IME report, the report, coupled with the Commission’s détermination on Stoker’s credibility, constitutes substantial evidence to support the Commission’s decision to deny additional medical treatment and testing. Affirmed. Abramson and Whiteaker, JJ., agree. . Stoker failed to include.a copy of the.sur: veillance video in the addendum, in violation of Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2016); Because the DVD is not essential to Stoker’s argument regarding admission of the IME, ■we do not require rebriefing.

RAYMOND R. ABRAMSON, Judge 11 Larry L. Harrison worked for Street & Performance, Inc. (Street & Performance), for eleven and a half years as a hemi technician. He fíled a claim with the Arkansas Workers’ Compensation Commission (hereinafter “the Commission”) asserting that his neck, right-arm, and right-shoulder injuries resulted from his employment with Street & Performance. Following a hearing before an administrative law judge (ALJ), the ALJ issued an opinion denying his claim on June 21, 2016 in its entirety. Harrison appealed to the Commission, and on its de novo review, the Commission issued a unanimous opinion dated January 11, 2017, affirming in part and reversing in part the decision of the ALJ. Specifically, the Commission found that Harrison proved that he had sustained a compensable gradual-onset neck injury but failed to prove that he had sustained a compensable gradual-onset right-arm or shoulder injury. Harrison filed a pro se notice of appeal on February 1, 2017, and Street | ¾& Performance filed a notice of cross-appeal on February 7, 2017. The record was lodged with this court on March 14, 2017. We affirm on direct appeal and on cross-appeal. As a hemi technician at Street & Performance, Harrison provided technical assistance to customers over the phone and worked in the shop installing and repairing car motors. Harrison worked about ten hours a day at Street & Performance, typically spending about three to five hours on the phone and three to seven hours working in the shop. Harrison’s shop work included the removal and installation of wheels and tires, radiators, disc brakes, transmissions, motors, batteries, and other car parts. Harrison testified that he never counted how many cars he worked on in a year because it would fluctuate but that he always had at least two cars he would work on at the same time. Harrison denied that he had been injured in a specific incident. As to potential rapid or repetitive work, Harrison testified regarding two different work activities: (1) closing the garage-bay door and (2) using a floor jack. Harrison stated that lifting the garage door was the most repetitive thing he did at work and indicated that he had to open and close the door as many as fifteen times during a ten-hour shift. Harrison noted that he did not have to use the floor jack every day and used it for only 20 to 30 minutes at a time. Harrison began to experience issues with his right arm, including tingling in his fingers and muscle atrophy, in October 2013. On May 27, 2014, Harrison went to Sparks Preferred Clinic complaining of right-arm tingling and loss of muscle mass in his right arm. An x-ray of Harrison’s cervical spine revealed narrowed disc spaces. An MRI performed a month later revealed multiple disc protrusions, chronic compression conformity, and degenerated discs throughout the cervical Rspine. Harrison was referred to neurosurgeon Dr. Shawn Moore. Dr. Moore’s note from Harrison’s first’ visit on July 25, 2014, states that Harrison reported a three-year history of neck pain and frequent heavy lifting. Dr. Moore recommended surgery, which was performed September 12, 2014, Before this surgery, Harrison was off work beginning on August 25, 2014, while recovering from hernia surgery. Harrison never returned to work at Street & Performance after August 2014. On July 81, 2015, Harrison went to Mercy Hospital in Fort Smith with complaints of “chronic right shoulder pain.” He reported during intake that he had a history of heavy labor for many years and that he used to lift car radiators for a living. An x-ray of Harrison’s right shoulder was taken and was normal. An MRI or physical therapy were discussed as treatment options at the appointment. On September 28, 2015, Harrison saw Dr. Bao Dang at Sparks Family Medicine South for shoulder pain and chronic neck pain. Dr. Dang ordered an orthopedic referral. On October 27, 2015, Harrison saw Dr, Trent Johnson at Mercy Clinic Orthopedic in Fort Smith. Dr. Johnson’s examination revealed a right-shoulder rotator-cuff sprain and a possible full- or partial-thickness tear of the rotator cuff. A follow-up MRI revealed a full-thickness tear in the intersection of the supraspinatus tendon, tendinopathy, degenerative changes, bursitis, and a mild cyst. Dr. Johnson performed a right-shoulder arthroscopy with arthroscopic rotator-cuff repair, an acromioclavicular joint resection, and a biceps tenotomy on Harrison’s right shoulder on November 11,2015. Harrison filed a claim with the Commission claiming his neck, right-arm, and right-shoulder injuries resulted from his empfyyment with Street & Performance. Following a prehearing conference, Harrison’s claim was set for a hearing on March 29, 2016, with the Rissues being whether he sustained a compensable gradual-onset injury to his neck, right arm, and right shoulder as a result of his' employment with Street & Performance and, if he did, whether he was entitled to medical benefits, temporary-total-disability benefits, and attorney’s fees. ■ Before the hearing, Harrison submitted for the record a July 2015 letter from Dr. Moore that noted, “I think it is probable Mr. Harrison experienced cervical degenerative disc disease with radiculopathy related to his significant work-related obligations.” Dr, Moore also wrote, “Although degenerative disc disease is often considered a chronic degenerative process, the significant work-related obligations that Mr. Harrison performed most likely contributed to this underlying condition and the development of his neck pain and radi-culopathy.” Dr. Moore was called to testify at the March 29, 2016 hearing before the ALJ. Dr. Moore explained that Harrison’s condition, degenerative disc disease, is typically a chronic degenerative process, but it could be exacerbated by certain work conditions or trauma. As to his letter, Dr. Moore specifically testified that the “purpose of the letter was just to indicate [that Harrison] has a chronic degenerative condition but it can be exacerbated with significant activities.” Dr. Moore noted that while he could say that Harrison’s reported work activities. were “a contributing factor” in the condition, he could not put a percentage on how much or how little Harrison’s reported activities contributed to the chronic ^degenerative condition because “that’s subjective.” Dr, Moore testified that the letter he dictated was correct. Following the hearing, the ALJ issued an opinion denying Harrison’s claim in its entirety. Harrison then appealed to the Commission. As noted above, the Commission affirmed in part and reversed in part the ALJ’s decision. The Commission found that Harrison proved he had sustained a compensable gradual-onset neck injury but failed to prove that he had' sustained a compensable gradual-onset right-arm or shoulder injury. It is from those proceedings that both parties appeal. In reviewing a decision from the Commission, our court reviews the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if the decision is' supported by substantial evidence. Nichols v. Micro Plastics, Inc., 2015 Ark. App. 134. Substantial evidence-exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id. The issue is not whether the appellate court might have reached a different result from that of the Commission but whether reasonable minds could reach the result found by the Commission. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). It is the Commission’s duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007). 6Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark. App. 97, 289 S.W.3d 163 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. The Commission is the ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546, at 2, 423 S.W.3d 664, 666. On appeal, Harrison’s challenge to the Commission’s finding that he did not suffer a compensable injury to his right arm or right shoulder is not preserved for our review. In his brief, he contends that this court should find that his right-arm and shoulder injury, a rotator-cuff tear, was a compensable consequence of his neck injury. However, he did not present this argument to the Commission. Before the Commission, his sole contention regarding his right-arm and shoulder injury was that it was a compensable gradual-onset injury arising out of the course of his employment with Street & Performance. We have routinely held that we will not consider arguments presented for the first time on appeal. Townley v. Ga. Pac. Corp., 2012 Ark. App. 48, 388 S.W.3d 475. Because Harrison is raising this matter for the first time on appeal and failed to get a ruling from the Commission, we are prevented from reviewing it. See Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Accordingly, |7we affirm the Commission’s opinion that Harrison’s right-arm and shoulder injury are not compensable. On cross-appeal, Street & Performance argues that the Commission’s decision that Harrison suffered a gradual-onset injury to his neck is not supported by substantial evidence in the record and therefore should be reversed. We disagree. This court must view the evidence and all reasonable inferences in the light most favorable to the Commission’s decision and must affirm that decision when it is supported by substantial evidence. Nichols, supra. Here, the Commission’s decision is supported by substantial evidence. On de novo review, the Commission found that Harrison had sustained a compensable gradual-onset neck injury arising out of the course of his employment with Street & Performance. On cross-appeal to this court, Street & Performance argues that the Commission’s decision was based primarily on a letter Dr. Shawn Moore had written on July 27, 2015, and that the Commission erred as a matter of law by considering and crediting Dr. Moore’s letter opinion specifically but not his hearing testimony. A claimant seeking benefits for a gradual-onset injury to the neck must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) the injury was the major cause of the disability or need for medical treatment. Smith v. Commercial Metals Co., 2011 Ark. App. 218, at 9, 382 S.W.3d 764, 769; Ark. Code Ann. § 11—9—102(4) (A)(ii) (b) & (E)(ii) (Repl. 2012). “Major cause” is defined as more than 50 percent of the cause. Ark. Code Ann. § 11-9-102(14)(A). | «Street & Performance contends that the Commission arbitrarily disregarded the full scope and substance of Dr. Moore’s opinion as clarified through his hearing testimony by considering only his letter. We are not persuaded by Street & Performance’s argument on cross-appeal. In its January 11, 2017 opinion, the unanimous Commission wrote, It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1991). In the present matter, the Full Commission finds that Dr. Moore’s opinion as stated in his July 27, 2015 correspondence is supported by the record and is entitled to significant evidentiary weight. Dr. Moore credibly opined that claimant’s cervical condition was causally related to the claimant’s work for the respondents. Based on the evidence in the present matter, the Full Commission finds that the claimant proved he sustained a com-pensable injury to his neck in accordance with Ark. Code Ann. § 11 — 9— 102(4)(A)(ii)(b) (Repl. 2012). The claimant proved that he sustained an injury causing physical harm to his body which arose out of and in the course of employment and was not caused by a specific incident. The claimant established a compensable injury by medical evidence supported by objective findings, namely the compression fracture and bulging shown on the June 25, 2014 MRI of the claimant’s cervical spine. The claimant proved that these objective medical findings were causally related to the com-pensable injury. The claimant also proved by a preponderance of the evidence that the compensable injury was the major cause of his disability and need for treatment. We will defer to the Commission on credibility determinations and to resolve any conflicts in the medical testimony. Martin Charcoal, Inc., supra. Here, the Commission relied on Dr. Moore’s July 27, 2015 letter, which clearly states, “the significant work-related obligations that Mr. Harrison performed most likely contributed to this underlying condition and the development of his neck pain and radiculo-pathy.” We hold this satisfies that Harrison’s injury was a major cause of the disability or need for medical treatment. IflWith our standard of review in mind, we hold that fair-minded persons could have reached the Commission’s conclusion. Therefore, we affirm on cross-appeal. Affirmed on direct appeal and on cross-appeal. Murphy and Brown, JJ., agree. , Harrison was represented by counsel during at least part of the proceedings below. He appeared pro se on appeal to the Commission as well as on appeal to this court,

RAYMOND R. ABRAMSON, Judge On August 25, 2016, a Hot Spring County jury convicted appellant Darrell Sanders of two counts of rape. He was sentenced to a total of 42 years’ imprisonment in the Arkansas Department of Correction (ADC), On appeal, he challenges the sufficiency of the evidence and argues the circuit court erred in granting the State’s motion to admit evidence under Arkansas Rule of Evidence 404(b). For the following reasons, we affirm, Sanders’s victim was fourteen-year-old S.J., who lived with him on weekends in 2014. Sanders appeals his convictions and alleges that the evidence is insufficient to support his second conviction for rape because there was no evidence introduced at trial that he was the guardian of the victim. He also alleges that his now adult daughters’ testimony that he had sexually abused them when they were approximately SJ.’s age was improperly admitted under Rule 404(b) of the Arkansas Rules of Evidence. Although Sanders argues the sufficiency of the evidence in his -second point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before the other issues on appeal. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). To preserve the sufficiency of the evidence for appellate review a defendant must move for directed verdict at the close of the State’s evidence and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection (a) will constitute a waiver of any question pertaining to the sufficiency of the evidence to support. the verdict or judgment. Ark. R. Crim. P. 33.1(c). Sanders did not move for a directed verdict at the close of the State’s case, nor did he move for a directed verdict at the close of all evidence. No motion for directed verdict was ever made, which is in contravention of Rule 33.1 of the Arkansas Rules of Criminal Procedure. Thus, Sanders’s sufficiency challenge is now barred on appeal. Sanders also argues that the circuit court erred in granting the State’s motion to admit evidence under Rule 404(b) of the Arkansas Rules of Evidence. Before trial, the State filed a motion to admit evidence of prior uncharged incidents of deviate sexual activity or sexual intercourse by Sanders with his two daughters who are now adults. A hearing was held and the State presented the testimony of Sanders’s daughters, who made the allegations. Rulings on the admissibility of evidence are matters within a circuit court’s discretion, and those rulings are not disturbed on appeal absent a showing of an abuse of that discretion and prejudice. Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). “Abuse of discretion is a high threshold that does not simply require error in the trial court’s ^decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration.” Id. Evidence of a person’s bad acts generally is not admissible to show action in conformity therewith. Ark. R. Evid. 404(b) (2016). Nevertheless, evidence of prior bad acts is admissible if they are independently relevant, that is, relevant to show a material fact other than that the accused is a criminal or bad person. Spencer v. State, 348 Ark. 230, 236, 72 S.W.3d 461, 464 (2002). “Evidence of other crimes, wrongs, or acts ... may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, ... or absence of mistake or accident.” Ark. R. Evid. 404(b). Our supreme court has recognized for over a century a “pedophile exception” under which evidence of an accused’s prior sexual conduct with children is admissible “not for the purpose of proving a substantive crime, but to show the relation and familiarity of the parties, their disposition, and antecedent conduct towards each another, and as corroborative of the testimony of the [victim].” Williams v. State, 103 Ark. 70, 78, 146 S.W. 471, 474 (1912). Such testimony is admissible “when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.” Parish v. State, 357 Ark. 260, 268, 163 S.W.3d 843, 847 (2004). It is also admissible when it helps to show the depraved sexual instinct of the accused. Id. For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008) (citing Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006)). In Sanders’s case, the victim, S.J., and Sanders’s two daughters, all were | ¿approximately the same age when Sanders raped them. S.J. was fourteen. One daughter was thirteen, and the other daughter remembers being eleven or twelve when the sexual abuse started. Moreover, S.J. and the daughters were all raped by Sanders in similar locations: a car, a church, and in Sanders’s home. All were vaginally raped. The pedophile exception to Rule 404(b) is fully applicable here; we hold that the circuit court did not abuse its discretion in admitting the evidence. Accordingly, we affirm Sanders’s convictions and sentences. Affirmed. Gladwin and Whiteaker, JJ., agree.

N. MARK KLAPPENBACH, Judge | ¶ Appellant Wayne Travis Ray petitioned the Saline County Circuit Court to terminate his obligation to register as a sex offender pursuant to Arkansas Code Annotated section 12-12-919. He also filed a motion seeking to have that statute declared unconstitutional. The circuit court denied both requests. On appeal, Ray argues that section 12-12-919 is unconstitutional as applied to him under the equal protection clause and is an unconstitutional ex post facto law. Arkansas Code Annotated section 12-12 — 919(b)(l)(A)(i) (Repl. 2016) provides that fifteen years after having been released from incarceration, a sex offender may apply for an order to terminate the obligation to register. The court shall grant an order terminating the obligation to register upon proof by a preponderance of the evidence that the applicant has not been adjudicated guilty of a sex offense for fifteen years and is not likely to pose a threat to the safety of others. Ark. Code Ann. § 12-12-919(b)(2). However, this process does not Uapply to sex offenders who are required to make lifetime registration under Arkansas Code Annotated section 12-12-919(a), including a sex offender who “[h]as pleaded guilty or nolo contendere to or been found guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge.” The lifetime-registration requirement of section 12-12-919 was added to the statute by Act 1743 of 2001. Before that amendment, the statute provided a method by which all sex offenders could seek termination of the obligation to register. Ray’s obligation to register as a sex offender stemmed from his 1999 Saline County Circuit Court conviction for one count of sexual abuse in the first degree. Ray pleaded guilty in that case and was sentenced to five years’ imprisonment and five years’ suspended imposition of sentence. In April 2016, Ray filed a petition to terminate his obligation to register. He alleged that he had been released from the Department of Correction on November 1, 2000, had not been found guilty of a sex offense during the fifteen years since his release, and was not likely to pose a threat to the safety of others. However, Ray’s petition also noted that days after his 1999 conviction in Saline County Circuit Court, he was convicted in the Pulaski County Circuit Court of the same offense against the same |svictim. The sentences in those cases were ordered to run concurrently. The State responded that Ray’s petition should be denied because he was likely to pose a threat to others and that he should be reassessed with the Sex Offender Community Notification Assessment Program. Subsequently, Ray filed a motion to find section 12-12-919 unconstitutional. He alleged that he had been charged and convicted in two separate cases due to his move from one county to another but that the victim was the same in both cases, and the crimes had been committed over the course of several years. He claimed that the requirement in section 12-12-919 of lifetime registration for offenders found guilty of a subsequent sex offense under a separate case number was unconstitutional as applied to him under the equal protection clauses of the United States and Arkansas Constitutions. He also alleged that the statute was an unconstitutional ex post facto law under the United States and Arkansas Constitutions. The State responded that Ray was not eligible under the statute to apply for an order terminating his obligation to register. The Attorney General intervened and filed a response to Ray’s constitutional challenges. Following a hearing, the circuit court entered an order denying Ray’s petition to terminate his obligation to register because he had pleaded guilty to sex offenses in two separate cases. The court found that section 12-12-919 was not an unconstitutional ex post facto law because it was regulatory, not punitive, in nature and that the statute did not violate Ray’s equal protection rights because it was supported by at least one rational basis. |4The general rule in cases involving a question of the constitutionality of a statute is that the statute is presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999). Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id. Ray first argues that application of the provision of section 12-12-919 requiring lifetime registration in his case violates his rights to equal protection under the federal and state constitutions. Equal protection under the law is guaranteed by the Fourteenth Amendment to the United States Constitution and by article 2, sections 2, 3, and 18 of the Arkansas Constitution. In .deciding whether an equal-protection challenge is warranted, there must first be a determination that there is a state action which' differentiates among individuals. Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488. Ray has established that section 12-12-919 differentiates among defendants who are convicted of sex offenses in more-than one case and those who are convicted in only á single case. Ray does not dispute that the rational-basis -test is the applicable constitutional standard of -review. Under the rational-basis test, we presume the statute to be constitutional and rationally related to achieving its objectives. Arnold,, supra. The party challenging the constitutionality of the statute must prove that the statute is not rationally related to achieving any legitimate governmental • objective under any reasonably conceivable fact situation. Id. | fiEquaI protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made; and that their treatment be not so disparate as to be arbitrary. Akers v. State, 2015 Ark. App. 352, 464 S.W.3d 483. When addressing an equal-protection challenge to a statute, it is not our role to discover'the áctuál basis for the legislátion. Id. We merely consider whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Id. If we determine that any rational basis exists, the statute will withstand constitutional challenge. Id. Ray argues that the requirement of lifetime registration for defendants convicted in more than one case is intended to protect the public from individuals who pose a greater danger while allowing offenders who pose a lesser threat an opportunity to be removed from the registry. Ray contends that he was convicted in multiple case numbers merely “due to geography,” and the fact that he had only one victim demonstrates that he poses a lesser threat, líe argues that it is unfair that offenders with multiple victims and multiple offenses and who pose a higher threat than him can still seek termination of their obligation to register if they were convicted under only one case number, We agree with the State, however, that a rational basis exists for treating sex offenders convicted • under more thán one case number differently than those convicted under a single case number. The legislative intent behind the sex-offender registry is to protect the public |fifrom sex offenders, whom the legislature has found to pose a high risk of reoffending after having been released from custody. Ark. Code Ann. -§ 12-12-902. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that these individuals are more likely, to reoffend. The underinclusiveness of a particular provision does not make the provision unconstitutional. Landers v. Stone, 2016 Ark. 272, 496 S.W.3d 370. Thus, Ray’s argument concerning sex. offenders convicted of offenses against multiple victims under one case number does not render the legislature’s chosen classification unconstitution al. We hold that the lifetime-registration requirement for sex offenders convicted in a subsequent case meets the very deferential rational-basis standard, see Brown v. State, 2015 Ark. 16, 454 S.W.3d 226, and that Ray has failed to demonstrate that section 12-12-919 violates his right to equal protection. Ray next argues that because his convictions occulted before the amend-, ment of section 12-12-919 by Act 1743 of 2001, the requirement of lifetime registration violates the ex post facto prohibitions of the .United States and Arkansas Constitutions. A law is prohibited as ex post facto when it punishes as a crime an act previously committed, which was innocent when done; makes more burdensome the punishment for a crime after its commission; or deprives one charged with crime of any defense available according to law at the time when the act was committed. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999) (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). If the law is regulatory or 7civil in nature, it cannot be an ex post facto law. Id. In Kellar, the appellant challenged the constitutionality of the original version of the Sex Offender Registration Act, Act 789 of 1997, codified as Arkansas Code Annotated sections 12-12-901 to -920. To determine whether the Act violated ex post facto clauses, the supreme court first determined that the intent of the legislature was nonpunitive and then examined the effects of the Act to see whether they transformed a civil remedy into a criminal penalty. To make its determination, the supreme court looked to the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and concluded that [g]iven the overall balance of the Kennedy factors, we are left with the conclusion that, while there may be some punitive characteristics inherent in the registration and notification statute, the Act is essentially regulatory and therefore non-punitive in nature. Because it is not a form of punishment, it therefore cannot be considered a violation of the ex post facto clauses of the United • States and Arkansas Constitutions. In Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6, the appellant argued in part that certain amendments to the Sex Offender Registration Act after Kellar had been decided were criminal in nature. The supreme court compared- the cúrrent version of the statutes with those at issue in Kellar and held that the amendments did not transform what was already found to be civil in nature to be criminal or punitive. Ray acknowledges Kellar but argues that the effect of the Act is punitive, noting without citation several restrictions that apply to sex offenders. He notes that before the amendment regarding lifetime registration, he had an opportunity to be removed from the ^registry, although removal was never guaranteed. Ray does not explain, however, how this amendment, or any other changes in the law since Kellar or Parkman, should ■ change the Kellar analysis. He has failed to distinguish those cases or explain why what was previously found to be civil in nature should now be deemed criminal. Thus, we find no merit in Ray’s ex post facto claims. Affirmed. Virden and Brown, JJ., agree. . Three other categories of sex offenders are required to submit to lifetime registration under the current version of the statute: offenders found to have committed an aggravated sex offense; offenders determined by the court to be or assessed as a Level 4 sexually dangerous person; and offenders convicted of rape by forcible compulsion pursuant to section 5-14-103(a)(l) or other substantially similar offense in another jurisdiction. Ark. Code Ann. § 12 — 12—919(a).

ROBERT J. GLADWIN, Judge liThe Ouachita County Circuit Court granted permanent custody of the minor child, D.D., born June 23, 2014, to Bobby Delee, her father, and closed the dependency-neglect case that appellee Arkansas Department of Human Services (ADHS) had brought against D,D.’s mother, appellant Laura Meyers. Meyers argues on appeal -that the trial court erred because she did not receive notice that permanent custody and a no-reunification-of-services request would be considered at the scheduled adjudication hearing. She. also argues that the trial court’s order is void because the trial court .failed to find that the child had been adjudicated dependent-neglected and that the trial court erred because it failed to follow the required .provisions of the juvenile code. Appellees ADHS and the attorney ad litem contend that this court should affirm the trial court’s oral finding of dependency-neglect, enter the finding of dependency-neglect in writing, and affirm the child’s placement with her.father. Ap-pellees also argue that we should reverse and remand the trial court’s decision to close the case and not order reunification services because Meyers did not receive the |2required statutory notice before the case was closed. We reverse the trial court’s order granting permanent custody to Delee, closing the case, and ordering no reunification services because Meyers did not receive the required statutory notice. We remand for further proceedings consistent with this opinion. I. Facts and Procedural History ADHS filed a petition for emergency custody and dependency-neglect on February 13, 2017, and an ex parte order granting ADHS custody was filed on the same day. The petition alleged that D.D. was dependent-neglected based on parental unfitness. The attached affidavit of Bridgette Patterson, a family service worker (FSW) for ADHS, states that a report was received that D.D., who lived with Meyers, was covered from head to toe in roach bites. Patterson completed a health-and-safety assessment on January 31, 2017, and observed that the house was infested with roaches, two dogs were in the house and had left feces on the floor, the home was cluttered with clothes, and the sink was full of dirty dishes. Patterson also saw bites on the child’s legs, arms, stomach, and back, and Meyers had not sought medical care for the child. Meyers told Patterson that she had been diagnosed with schizophrenia, ADHD, bipolar disorder, and a “split personality,” but Meyers said that she did not take medication and had not been to a doctor or counselor for these issues. The affidavit described two prior agency involvements, one in Georgia, which was found to be unsubstantiated, and another in Arkansas on September 9, 2016, when Meyers took D.D. to Ouachita Valley Clinic where it was discovered that the two-year-old was behind on her vaccinations and was covered in a rash, thought to be scabies. Meyers told the clinic worker that D.D, had cockroach bites, and Meyers was covered in bites as well. Meyers told the Isdinic that she has three other children, two of whom were in their dad’s custody because she had tried to kill him. The other child, who was born with a birth defect, had been placed for adoption. Meyers was told about services for D.D., such as speech and physical therapy, but Meyers said that she did not trust doctors and did not want anyone to come into her home. These allegations were found to be true, a protective-services case was opened, and ADHS attempted to provide services from October 2016 until January 2017, when Patterson conducted the health-and-safety check. Following the entry of the emergency order, Meyers was appointed counsel, and on March 21, 2017, the trial court signed an order for compliance with Regulation 7 of the Interstate Compact on the Placement of Children (ICPC) to request a home-study assessment on Delee because he lived in Tennessee. On March 22, 2017, a probable-cause order was filed wherein the trial court found that the emergency conditions that caused removal continued and it was necessary that D.D. remain in ADHS custody. ADHS was ordered to develop an appropriate case plan for the child and family and to provide services as appropriate to achieve the goal of the case plan. The trial court found that Meyers had agreed to start counseling and complete her psychological evaluation before the adjudication hearing and ordered her to do so. An adjudication hearing was set for March 15, 2017; however, the healing was continued until April 19, 2017. Both parents attended the adjudication hearing with their counsel, and Patterson testified to the allegations set forth in the affidavit attached to ADHS’s original petition. Photographs of Meyers’s home taken during Patterson’s January 31, 2017 visit were admitted in evidence. On cross-exam ination, Meyers’s counsel asked Patterson what efforts |4were made to prevent having to remove the child from Meyers’s custody. The following colloquy occurred: ADHS Counsel: That’s not relevant to the finding of dependency-neglect. Meyers’s Counsel: Are you not asking for a finding of dependency-neglect today? ADHS Counsel: That’s a different finding. Meyers’s Counsel: Are we going to have another hearing on it? ADHS Counsel: That’s a part of the disposition finding. Meyers’s Counsel: But the court’s not going to make that finding today, so I’ll reserve those questions. That’s all I have, Your Honor. Patterson was then questioned by the attorney ad litem representing D.D. At the conclusion of Patterson’s testimony, the following colloquy occurred: Meyers’s Counsel: I just want to be clear on one issue. The Department today is not asking for a reasonable-efforts finding? The Court: I think that what they are doing is, they’re getting to this threshold and then we move into disposition. That’s the point where we talk about reasonable efforts. ADHS Counsel: Correct. Meyers’s Counsel: To prevent removal? ADHS Counsel: Right. Meyers’s Counsel: Okay. Meyers testified that she has children other than D.D. and that she had spent time in jail as a result of causing one child to have a broken tibia. She also said that she recalled [.^stating in her psychological evaluation that she had tried to kill the father of two of her children. She said that [ajfter many years of physical, verbal, psychological, and mental abuse, one day I just snapped on him. He kicked me in my back and the last thing I remember is the cops being at the house. From what they told me, they said I snatched him by the throat and that if he hadn’t hit me in my ribs, he would have been dead. So, I personally don’t have any recollection of it. I only have what I was told. I couldn’t even tell you where my children were at the time. When I blacked out, I had no clue where they were at. That doesn’t happen frequently for me. It took nine years to happen once. I’ve been diagnosed with schizophrenia for as long as I can remember. If I can remember that far back, yeah, since I was a child. I stopped taking my meds for that diagnosis nine years ago. I’ve been diagnosed with bipolar for the same amount of time. What happened in my childhood brought out a lot of unstable things and they had me on medications and I was taking the medications, but I was blacking out repeatedly. My body was not accepting the medications and I quit taking them. When I quit taking them, I stopped blacking out. The child’s fractured limb didn’t happen during a blackout. That happened because me and my child’s father had gotten into an argument and [the child] was crying and I laid him down on the bed and I didn’t realize his leg was trapped up underneath him and when I put him down, it fractured his tibia. On cross-examination by ADHS, Meyers admitted that the house had roaches and explained that she had tried to deal with them and had argued with her landlord about it for almost two years. She said that D.D.’s bites came from roaches, but she also said that they had gone camping and that D.D. had “mosquito bites and whatnot.” On cross-examination by the attorney ad litem, Meyers said that her first child had the broken tibia and now lives with his father. She said that this same man,-who is also the father of her next two children, was the man she had tried to kill. She said that their third child was placed for adoption “because she' was missing the right front part of her brain.” She said that the child had first been placed in foster care at her request because her son had|fia violent tendency and she did not want him to beat the child. She said that her other two children had been in foster care because of the bad relationship she had with their father. She said that .all of this had happened while she was living in New Jersey. Shé said that she then lived in. Georgia for a time when she was with DJD.’s father. She said that child-protective services (CPS) in Georgia had been told that she had been sleeping with a. huhting knife underneath her pillow. She said that it was not true and that CPS could not prove it. She also said that she had been told that she has five personalities. She stated, Lucky you’re just talking to me now. Just Laura Meyers.. Yesterday was the day that they just all came out and I was snappy and whatnot, but my mom ■ knows how to deal with it and she talks . me out of it, so. It’s not like I got violent or anything, I was. just real, how do you say, annoyed? The trial court questioned Meyers, and she said that she had lived in Arkansas for the last three years. When the trial court asked her the name of D.D.’s doctor,, she admitted that she had not taken her. child to see a doctor. Renee Yancy was called as a witness by the attorney ad litem, and she testified that she worked for ADHS and that she had photographed, D.D.’s bites with her cell phone on January 31, 2017, and the pictures were printed and -introduced as evidence. The trial court then announced that it was making a finding of dependency-neglect. The trial court asked, “Do you have anything concerning disposition?” The following colloquy occurred: Meyers’s Counsel: You Honor, I believe that would be more appropriate for the disposition hearing. The Court: That’s where we are. Meyers’s Counsel: I thought we were going to have the disposition in a couple of weeks. The Court: No. We’re having it right now. |7Meyers’s Counsel: It was my understanding that we would have that in a couple of weeks. The Court: Wait a second', because it’s ■rare that we have them on a different day than a finding. . • ADHS Counsel: Let me explain. I had talked to him, because of the father. We have done an ICPC on Mr. Delee. The Court: Okay. ADHS Counsel: Before he went to talk to his client for the hearing, I had told him that that was what I was going to ask to do, then while he was talking to Ms. Meyers, I found out that Mr. Laney and , Mr. Delee were. actually here, because I was under the impression that Mr. Delee wasn’t. coming. When they walked in the courtroom, I found out that they want to make a pitch to the court for custody today. The Court: All right. Do you need another recess,. [Meyers’s Counsel], which is not a problem? . Meyers’s Counsel: No. I believe we can proceed. ADHS offered Meyers’s psychological evaluation as an exhibit, and it was admitted without objection. ADHS then called Shanell Robbins, supervisor, for Ouachita County Department of Child and Family Services (DCFS), who testified that ADHS had a protective-services case open on Meyers in late October 2016. She said that a protective-services case generally comes from an investigation, and if the investigation is substantiated, DCFS would provide service? to the family to prevent removal and maintain the children in the home. She said that the services offered between October and January were worker visits, attempts to offer homemaker services, and a referral for an assessment for “Kids First, First Step for D.D. in an effort to prevent the removal of this child.” She said that the assessment was never done |sand that DCFS did not have a lot of contact with Meyers during that time period. Robbins said that in September 2016, the home was in the same condition as depicted in the pictures of the home on January 31, 2017. Robbins said that ADHS recommended that the goal be relative placement with the father. She said that ADHS was not recommending reunification due to recommendations in Meyers’s psychological evaluation, ■ Meyers’s statement that she would not take any type of medication to manage her mental disabilities, and the history of Meyers’s poor home environment. On cross-examination, Robbins testified that she had visited the home on September 9 and 11, 2016, and the home had been infested with insects, had feces in the front area, and was cluttered. Services were put in place with Meyers and her landlord that prevented the removal of the child at that time. The landlord agreed to have the home treated for insects. Meyers and her mother agreed to clean the home. Meyers also agreed to allow the child to stay with a friend while the home was cleaned and treated for inseets. During the investigation, Robbins visited the home several times.. She said that Meyers had taken things out of the home, had put the dogs outside in a kennel at one point, and had thrown away furniture and bags of clothes in an attempt to rectify the situation. Meyers and her mother were to split the cost of an exterminator' every month, but she did not follow through with that; Robbins said that the landlord .agreed to have the home sprayed one time, and he said he had .gone over with Meyers the need to keep the home clean and the animals out to prevent infestation. Robbins said that when the child was removed, ADHS did not try any pf.those, services again. ' InCounsel for ADHS asked the court for a finding that Delee had no role in the cause of dependency-neglect and stated that there was no evidence that he had been living in the home at any time since September 2016. Counsel stated that the ICPC had been done, and ADHS had received a letter from Tennessee reflecting that it would be approved. .However, ADHS asked the trial court to reserve the issue because the official approval had not been returned and to note that ADHS could not agree to custody and placement at that time. Meyers testified that she had cooperated with ADHS when they first became involved and that she cleaned the house and “bombed as much as we could.” She said that her mother lived on the other side of their duplex, and both sides were sprayed and baited. She said that she would take any assistance provided to obtain other housing. She said that she had cooperated ■with services because she went to counseling and had been making a lot of progress with her therapist. She said that she had not been to the psychiatrist because she had to go to a “regular doctor appointment” first. She said that she was willing to go to parenting classes and that she had asked ADHS about getting HUD or Section 8 housing, but she had not received any assistance. She said that the only concern she had about placing D.D. in Delee’s custody was that Delee told her four or five years ago that he had been accused of “messing with a minor.” She also complained that he did not pay child support. On cross-examination, Meyers said that she had told ADHS in September 2016 that she could not get into housing because she had a criminal record. She also said that she had a criminal record for “B. and E. and whatnot” and that she had charges for “when the child had a broken tibia.” She said that she was willing to take a mood stabilizer, that she had been on medications when she tried to kill her husband, and that she had been on | inmedication when she accidently broke her child’s tibia. She agreed that it was a lose-lose situation because there was no reason to think that if she went back on medications, her problems would be fixed. She said that violence is an issue with only one of her five personalities but not Laura Meyers’s, that’s for sure. I know that because I only black out when a certain one comes out. That’s number five. I don’t know what number five’s name is. As far as I’m concerned, they’re just numbers and I don’t let it get that far. When number five comes out, that’s when the violence happens, but it takes a lot to make that one to come out. It really does. It took nine years for my first kids’ father to push it that far. I had never seen that one until then. The other four are grumpy, cranky, and depressing. They’re not violent. They’re just negative. All of them are negative, pretty much. The attorney ad litem introduced an email from the Tennessee DCFS indicating that Delee’s home study had been completed, and his home had been recommended for placement. Delee testified that he lives in Tennessee and had for two years. He said that he works for a car manufacturer and had been employed there since January. Before that, he had worked as a truck driver but had lost his job because he had diabetes and was prescribed insulin. During the time he was off work, his girlfriend had supported him. He said that he lived with his girlfriend and her mother, son, and two daughters. He said that he was ordered to pay child support for D.D. by a Georgia court and that he had joint custody of her. The Georgia order granting joint custody was admitted in evidence along with photographs of Delee’s home in Tennessee. De-lee said that he had passed the drug test and the background check, that his home met all the qualifications, and that he was ready to take custody of his daughter. He said that he had checked into schools and that D.D. would be enrolling with Head Start, which begins at age three. He said that he planned to use the |nprimary-care physician that his girlfriend uses for her daughters and that he had checked with the Sweetwater primary school system about programs they offered to address D.D.’s speech and language impediments. He said that he did not object to Meyers’s visiting under supervised conditions, and he asked for custody to be placed with him that day. On cross-examination, he admitted that he was behind on his child support because he had previously been out of work for almost a year. After Delee’s testimony, ADHS asked the trial court for a finding of reasonable efforts. Also, ADHS asked that it be allowed to “come back on the home study and letter from Tennessee.” ADHS asked for a finding that Delee did not have a role in the finding of dependency-neglect, for the goal to be relative placement with De-lee, and that there be no reunifications services to Meyers based on her testimony and the information provided in the psychological evaluation. ADHS argued that there was no reason to believe that providing Meyers with counseling and medication services “would get us anywhere in this case.” The attorney ad litem agreed with ADHS’s request for a reasonable-efforts finding and for “no reunification services.” The ad litem argued that there were no services that could be provided, even medication, that would help. She asked that the child be placed with Delee that day because the letter from Tennessee said he was approved, and the home study, although it had not worked its way through the bureaucracy, was on its way and had been approved. She said that Delee was a joint custodian. The trial court asked ADHS counsel what he thought about the request for the child to go with Delee that day. ADHS stated that it could not agree because it had not received [ 12the approved home study, but if the trial court did make that finding, ADHS would ask that it be permanent custody and that the case be closed. ADHS said that “technically, it’s a violation of the ICPC if the court doesn’t have one.” Meyers’s counsel argued that Meyers had a constitutional right as a parent to services provided by ADHS. Counsel argued that there was a constitutional due-process right involved. He claimed that Meyers did not receive any notice, and there were no motions filed that stated ADHS was seeking to terminate reunification services. He claimed that oiice ADHS made the decision to remove the child, it had a duty to provide services. He argued that ADHS had a duty to try for reunification and that they had a case plan that was generic and not individualized for the serious issues here. He argued that Meyers could benefit from intensive counseling, as suggested by the psychological evaluation, and that she should not lose custody permanently until those services were provided. ADHS argued that there was no statutory or case law that required it to provide notice unless the goal of the case was changed from reunification. ADHS argued that the goal should be placement with the father after the expected approved ICPC home study. In its ruling from the bench, the trial court summarized the testimony and the conditions that led to the child’s removal from her mother. It noted the condition in the home, the pictures of the bites on the child, and the neglect by Meyers in not seeking treatment for her child. It noted that Meyers’s testimony was not consistent with her child’s broken leg and said that a broken leg cannot be caused by “simply placing the child on the | iabed.” The trial court also noted Meyers’s inconsistent testimony regarding the blackouts and what caused them. The trial court considered that Delee had been given joint custody by a court order. The trial court found that ADHS made reasonable efforts to avoid “this situation” by recommendations made in the fall of 2016, and it was Meyers’s failure to follow through that led to the removal of the child in January 2017. The trial court found that it was in the child’s best interest that custody be placed with Delee and that, regardless of potential services, and even if reunification was one of the concurrent goals, reunification could not have been accomplished within a year. “I’m not going to leave this child in foster care for six- months or a year, when there is an appropriate placement for her with a parent.” The trial court ordered supervised visitation at Delee’s discretion and stated that Meyers could file a petition for a change in visitation or-a change in custody if circumstances warranted it. The trial court’s order, filed April 24, 2017, did not contain the trial court’s adjudication of dependency-neglect. Meyers filed a timely notice of appeal, and this appeal followed. II. Standard of Review We review dependency-neglect cases under the following legal guidelines: Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Dependency-neglect allegations must be proven by a preponderance of the evidence. We will not reverse the circuit court’s findings unless they are clearly erroneous. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. The focus of an adjudication hearing is on the child, not the parent; at this stage of. a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. The appellate court is not to act as a “super factfinder,” substituting its own judgment or second guessing the I ^credibility determinations of;the court; ■ we reverse only in those cases where a definite mistake-has occurred. Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App. 350, at 4-5, 498 S.W.3d 315, 318 (citations omitted). III. Statutory Notice Arkansas Code Annotated section 9-27-365 (Repl. 2015) provides that a motion for no reunification services must be provided to all parties in wilting at least twenty days before a scheduled hearing. Ark. Code Ann. § 9 — 27—365(a)(1)(A)— (B). Meyers argues that it was error for the trial court to grant permanent custody to Delee and close the case. She claims that she did not get notice that ADHS was going to ask that it not be required to provide reunification services and instead request permanent placement of D.D. with her father, Delee, and she contends that the lack of notice violated her “basic constitutional rights.” She cites Tuck v. Arkansas Department of Human Services, 103 Ark. App. 263, 288 S.W.3d 665 (2008), for the proposition that the State must provide parents with fundamentally fair procedures when it “moves to destroy weakened familial bonds.” Tuck stated, We have said it so frequently that it is now axiomatic: few consequences of judicial action are so grave as the severance of natural family ties. See Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). As long as there is reason to believe that positive, nurturing parent-child relationships exist, the law favors preservation, not severance, of natural familial bonds. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006). Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit, Benedict, supra. A parent’s right to the care and control of his or her child is a fundamental liberty, and termination of parental rights is' an extreme remedy in derogation of those rights. See. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005). This fundamental liberty interest does not evaporate simply because the mother and father have not been model parents. See Osborne, supra. Even when blood relationships are strained, parents retain a vital interest in preventing the | ^irretrievable destruction of their family life. Id. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than dp those resisting State intervention into ongoing family affairs. Id. Accordingly, when the State moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures. See id. Tuck, 103 Ark. App. at 266-67, 288 S.W.3d at 667-68. Meyers cites Hardy v. Arkansas Department of Human Services, 2009 Ark. App. 751, 351 S.W.3d 182, where this court remanded for the parties to comply with the requirements for no-reunification-services hearings. See also Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, 434 S.W.3d 371 (motion for no reunification services filed prior to adjudication); Phillips v. Ark. Dep’t of Human Servs., 85 Ark. App. 450, 158 S.W.3d 691 (2004) (ADHS announced its intent to file a no-reunification-services motion). Appellees concede that it was reversible error for the trial court to close the' case without reunification services because Meyers did not receive the statutory notice required. Ark. Gode Ann. § 9 — 27—365(a)(l); Hardy, supra. Therefore, appellees request that this court reverse the trial court’s decision to close the case and nbt order reunification, services and remand the case for further proceedings, including the consideration of any motions to terminate reunifications services to Meyers under section 9-27-365. We agree with the appellants’ and appel-lees’ contention that reversible error occurred because Meyers did not receive the required statutory notice. Accordingly, we reverse the 11fitrial court’s order closing the case without reunification services and remand for proper notice under Arkansas law. IV. Adjudication Meyers argues that the trial court’s disposition order is void because- it does not reflect the trial court’s ruling that the child was dependent-neglected. Meyers contends that an oral finding does not satisfy the requirement under the code. that a disposition order may only be entered when a child is found to' be dependent-neglected. See Ark. Code Ann;' § ,9 — 27— 334(a). Further, Administrative Order No. 2 provides that an order announced from the bench is not effective until reduced to writing and filed of record. Ark. Sup. Ct. Admin. Order. No. 2(b)(2) (2016); see also Ark. R. Civ. P. 58 (2016). Therefore, Meyers argues that the trial court lacked the authority to grant permanent custody to Delee. Appellees argue that this court should go to the record and affirm the trial court’s dependency-neglect finding and enter that finding, which the trial court failed to include in its order. They argue that a preponderance of the evidence supported the trial court’s oral-finding of dependency-neglect and that the trial court intended to make the required dependency-neglect finding. They cite several cases for the proposition that this court can go to the record and enter the finding that the trial court should have entered. See Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, at 9, 431 S.W.3d 303, 308; Hanlin v. State, 356 Ark. 516, 529, 157 S.W.3d 181, 189 (2004); Haynes v. State, 314 Ark. 354, 358, 862 S.W.2d 275, 277 (1993); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). 117Because we are reversing the trial court’s order closing the case without reunification services, the trial court may include in its future orders any findings necessary for compliance with the applicable statute. We decline to amend the trial court’s order and hold that the trial court may amend as its sees fit on remand. V. Custody Meyers argues that the trial court, acting under the auspices of the juvenile code, modified custody without giving her notice that such a result was a possibility. See Miller v. Ark. Dep’t of Human Servs., 86 Ark. App. 172, 167 S.W.3d 153 (2004) (holding that there is a distinction in custody cases between those filed under the juvenile code and those filed pursuant to a change-of-custody petition). She cites Clark v. Arkansas Department of Human Services, 2016 Ark. App. 286, 493 S.W.3d 782, in which this court held that when ADHS requested a change of custody, the statutory guidelines and framework for such set forth in the juvenile code should have been applied. She also contends that Nance v. Arkansas Department of Human Services, 316 Ark. 43, 870 S.W.2d 721 (1994), holds that the circuit court must follow the juvenile code when making custody decisions under the juvenile code. She argues that there was no child-custody case here but a dependency-neglect petition. Meyers also complains that the trial court failed to adhere to the statutory requirement that mandates a home study before placing custody of a child with a relative, citing Arkansas Code Annotated section 9-27-335(d). Appellees argue that Meyers did have notice that custody was going to be an issue because the dependency-neglect petition addressed custody and included a specific notice that the circuit court may not order reunification services and instead could proceed directly 11sto permanency for the juvenile. Further, appellees rely on the ICPC order for expedited consideration of Delee for custody and placement in Tennessee and the emergency-custody and probable-cause orders which continued D.D. out of Meyers’s custody. They argue that the entire framework of the code puts custody at issue at every stage of the proceeding. Appellees also claim that there was evidence of Delee’s fitness for custody, and placing custody with him should be affirmed. Under Arkansas law, trial courts have the authority to transfer custody in a dependency-neglect proceeding if it is determined that the transfer is in the best interest of the juvenile involved, and if custody is transferred to a relative or other individual, a written home study is presented to the court. Ark. Code Ann. § 9-27-334(a)(2). Trial courts are also required to consider whether a noncustodial parent contributed to a juvenile’s dependency-neglect and whether the parent is fit for custody or visitation. Ark. Code Ann. § 9- 27 — 327(a)(l)(B)(i). If a custodian lives out of state, Arkansas law requires written approval by the appropriate public authorities in the custodian’s home state in lieu of a written home study before a juvenile can be placed in the custodian’s home pursuant to a court order. Ark. Code Ann. § 9-29-201, art. III. Appellees argue that the trial court found that transfer of custody to Delee was in D.D.’s best interest. The trial court found that Delee had not contributed to D.D.’s dependency-neglect and that he is fit for custody. The trial court had written evidence that the authorities in Tennessee had approved placement of D.D. into De-lee’s home by virtue |19of the letter placed in evidence. Appellees argue that a home study was not required for a parent who lives out of state and has written approval. We reverse the trial court’s order placing permanent custody with Delee because the order is premised on the trial court’s premature closure of the dependency-neglect action. Without proper notification to Meyers, the trial court ordered that no reunification services were required and placed permanent custody with Delee against ADHS’s arguments that doing so would be a violation of the ICPC. We acknowledge the trial court’s inclination to shortcut the proceedings when circumstances seem extreme; however, awarding permanent custody to Delee based on the framework of a ehange-of-custody petition is in derogation of the dependency-neglect statutes that control in this case. Accordingly, we reverse the permanent-custody finding and remand for further proceedings in accordance with this opinion. Reversed and remanded. Glover and Hixson, JJ., agree. . The trial court noted that there was not a case plan, and Meyers’s counsel said he had seen a draft. . Hardy interpreted Ark. Code Ann. § 9-27-329 (Repl. 2008), which has since been amended, and the requirement of notice for no reunification services is now codified at Ark. Code Ann. § 9-27-365 (providing that any party may- file a motion for no reunification services at any time and the motion should be provided at least twenty days before a scheduled hearing). . This is a reference to the notice at the end of the petition, following the attorney’s signature on the pleading. It concludes, "In some cases, the Court will determine that the Arkansas Department of Human Services is not required to provide reunification services and permit Arkansas Department of Human Services to proceed directly to permanency for the juvenile, Ark. Code Ann. § 9-27-303 [definitions].”

KENNETH S. HIXSON, Judge | j Appellants Dorletha Brinkley Lambert and Timothy Brinkley appeal from the termination of their parental rights to their three children, T.M.l, T.M.2, and T.M.3, who are now ages nine, eight, and six. On appeal, Dorletha argues that there was insufficient evidence to support the termination of her parental rights because there was a failure of proof as to the statutory grounds found by the trial court. In his appeal, Timothy also challenges the sufficiency of the evidence, arguing that there was insufficient proof of the statutory ground found by the trial court pertaining to him. In addition, Timothy argues that the trial court erred in proceeding on the petition to terminate his parental rights because he was not appointed counsel until immediately before the termination hearing. Finally, Timothy contends that it was error to terminate his parental rights because he was not served with the case plan or relevant pleadings, and because his attendance or | ¿participation was not secured at any hearing before the termination hearing. We affirm the termination of Dorletha’s parental rights. However, based on our conclusion that the trial court clearly erred in finding sufficient proof of a statutory ground as to Timothy, we reverse the termination of his parental rights. We review termination of parental rights cases de novo. Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 683, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the three children on May 11, 2015. When the petition was filed, the children were living with Dorletha in Jonesboro, Arkansas, and Timothy was incarcerated in Texarkana, Texas. An affidavit of a family service worker stated that the three children had been left unsupervised and locked out of their house for |3more than two hours, and when Dorletha came home she told the worker that she had been at her aunt’s house across town. Dorletha was arrested and charged with three counts of first-degree endangering the welfare of a minor. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of the three children. The trial court entered a probable-cause order on May 12, 2015. In the probable-cause order, the trial court ordered the parents to cooperate with DHS, comply with the case plan, remain drug free, submit to a drug-and-alcohol assessment, and complete parenting classes. The parents were also ordered to maintain stable housing and employment, and to resolve all outstanding criminal matters. On June 30, 2015, the trial court entered an adjudication order adjudicating the children dependent-neglected. The goal of the case was reunification. A review order was entered on November 3, 2015, wherein the trial court found that Dorletha was in noncompliance with the case plan due to a positive drug screen and her failure to attend drug treatment. The order indicated that Timothy did not appear at the hearing, and the trial court found that Timothy had participated in none of the case plan. On April 28, 2016, the trial court entered a permanency-planning order finding that Dorletha was in compliance with the case plan but needed to resolve her criminal matters, including a DWI charge. The order again indicated that Timothy did not appear at the hearing, and the trial court found that Timothy had participated in none of the case plan. In the permanency-planning order, the goal of the case continued to be ■ reunification with Dorletha. However, in a fifteen-month-review order entered on July 21, 2016, the trial |4court authorized DHS to file a petition to terminate parental rights. In that order, it noted that Timothy again did not appear, and under section 8, “The court finds that the parents have participated in the case as follows,” the trial court noted that Dorle-tha was currently incarcerated and facing criminal charges for both DWI and aggravated assault; Timothy was not mentioned at all. DHS filed a petition to terminate both parents’ parental rights on September 14, 2016. The termination hearing was scheduled for October 18, 2016. However, on the day of the scheduled termination hearing, the trial court entered an order of continuance wherein it rescheduled the hearing for November 18, 2016, appointed counsel to represent Timothy at the hearing, and instructed counsel to arrange for Timo thy’s transportation from jail to the hearing. The termination hearing was held on November 18, 2016, with both Dorletha and Timothy present and represented by counsel. ■On March 2, 2017, the trial court entered an order terminating Dorletha’s and Timothy’s parental rights to the three children, The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest,' and the trial court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section - 9-27-341(b)(3)(A)® & (ii) (Repl. 2015). The trial court also found, with respect to Dorletha, clear and convincing evidence of the following two statutory grounds under subsection (b)(3)(B): •; (i)(a) That a juvenile has,been-adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve .(12) months and, despite a meaningful effort by- the department to rehabilitate the parent and correct |fithe conditions that caused removal, those conditions have not been remedied by the parent. (yii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity ,or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent. The trial court found that Dorletha had been incarcerated seventeen times during the ease, had consistently minimized her arrests, and had a long and unresolved history of alcohol abuse. As to Timothy, the. trial court found under ■ subsection (b)(3)(B)(iv) that he had abandoned the juveniles. . DHS caseworker Tina Green testified at the-termination hearing. Ms. Green testified that Dorletha has had issues with alcohol abuse throughout the case, which was in large part the reason for Dorletha being arrested and incarcerated seventeen times for various offenses. According to Ms. Green, in the past several months Dorletha had been convicted of DWI, driving. on a suspended license, and two counts of aggravated assault. Dorletha was last arrested two weeks before the termination hearing, and she remained in jail awaiting transfer to. a court-ordered inpatient treatment facility. .Ms. Green indicated that Dorletha had completed a previous treatment program, but with unsuccessful results, and that Dorletha minimized, and made excuses for her criminal troubles. Ms. Green stated that, after the children were .removed, Dorletha remarried and now has stable housing. Ms. Green further acknowledged that Dorletha had been fairly compliant with the case plan as far as “checking the boxes,” but that she had not remained | «sober 0r resolved her criminal issues. Ms, Green stated that one of the assault charges against Dorletha arose from an incident where Dorletha had cut her husband with a razor. Ms. Green also believed that Dorletha has mental-health issues. Ms. Green was concerned that the children’s safety and welfare would be at risk if they were returned to their mother’s. custody, and she testified that the children are adoptable. Ms, Green testified that Timothy has been incarcerated from the outset of the case, and she was not aware of him ever asking for DHS services or asking to visit the children. The only contact Ms. Green had with Timothy was through a letter he sent after being served with the termination petition, wherein he asked to be present for the termination hearing. Ms. Green stated that the children could not be safely placed with either parent due to both parents’ incarceration, and she thought termination of both parents’ parental rights was in the best interest of the children. Dorletha testified and acknowledged being incarcerated, with her most recent charge being public intoxication. Dorletha testified that after her children were removed from her home she “started drinking real heavy and getting into trouble because it felt like [she] lost everything.” However, Dorletha stated that she-loves her children and that, were she not incarcerated, they could be returned to her. Timothy testified'that he was incarcerated in September 2014 for a battery conviction and that his earliest release date would be in September 2017, which was ten months after the termination hearing. Timothy stated that he was served with a copy of the original emergency petition in prison on May 21, 2015. However, Timothy testified that he Was never served with, nor did he ever receive, any order, notices, or any type of 17communication from DHS or the ■ court for the • next fifteen-plus months. Timothy testified that he was not provided a copy of the case plan or notice of any of the interim hearings, and that he was never offered any services by DHS. The first time he received any communication from DHS was when he was served with the petition for termination, of his parental rights on or about September 15, 2016. Timothy stated that, during that fifteen-month period, he was indigent and that nobody had asked him if he wanted a lawyer to represent him. After Timothy was 'served with the petition for termination, he wrote a letter requesting counsel and was appointed counsel. Timothy stated that he had not abandoned his children and did not want his parental rights terminated, . We first address Dorletha’s argument on appeal, which is that the trial court clearly erred in finding statutory grounds to terminate her parental rights. The first ground found by the trial court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), the children were adjudicated dependent-neglected and had been out of Dorletha’s custody for twelve months, and that despite meaningful DHS efforts to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent. Dorletha argues . that. this ground was not sufficiently proved because there was a lack of evidence that she failed to remedy- the conditions causing removal. Dorletha asserts that, the condition that caused removal was inadequate supervision of the children, while the proof supporting the trial court’s order was not inadequate supervision but rather Dorle-tha’s alcohol abuse and frequent incarcerations, which were problems unrelated to the condition that caused removal. ■. • IsThe remaining ground found by the trial court was that, under Arkansas Code Annotated " section 9-27-341(b)(3)(B)(vii)fqj, other factors or issues arose demonstrating that the return of the children to Dorletha was contrary to the children’s welfare, and that despite the offer of appropriate family services, the parent manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent the return of the juveniles to the parent’s custody. Dorletha contends- that the trial court erred in finding that this ground was satisfied because DHS failed to prove that it offered appropriate family services for Dorletha’s mental-health issues, which she claims contributed significantly to her persistent criminal troubles. For these reasons, Dorletha submits that the order terminating her parental rights should be reversed. Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep’t of Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. We uphold the termination of Dorletha’s parental rights based on our conclusion that the trial court did not clearly err in finding that DHS proved the “other factors” ground under subsection (b)(3)(B)(vii)(o) of the termination statute. In this case there can be no doubt that other factors arose after the children were removed from Dorletha’s custody, which included her persistent alcohol abuse, evén after completing alcohol rehabilitation, and her ongoing criminal troubles that resulted in seventeen incarcerations during the case. Dorletha’s incarcerations compromised her ability to visit the children, and she remained in jail at the time of the termination hearing. Dorletha does not appear to contest the sufficiency of the proof as to these other factors that showed the juveniles could not be safely returned to her custody, but instead claims that 19DHS failed to offer appropriate services. We cannot agree. The record demonstrates that Dorletha did receive DHS services throughout this case, including a rehabilitation program that was unsuccessful in remedying her problem with alcohol. The testimony of the caseworker demonstrated that Dorletha’s alcohol abuse and related criminal problems were the factors preventing the return of the children to her custody, and the trial court found that Dorletha manifested the incapacity or indifference to remedy these issues. Although there was some testimony suggesting that Dorletha also had mental-health issues, these issues were not the basis for the termination. We hold that the trial court did not clearly err in its finding that appropriate family services were offered to Dorletha, and we affirm the termination of her parental rights based on the “other factors” ground. We now turn to Timothy’s appeal of the termination of his parental rights. Timothy argues that the trial court clearly erred in finding that he had abandoned his children, which was the only statutory ground pled in support of DHS’s termination petition. Timothy also argues that his termination should be reversed because he was not appointed counsel until shortly before the termination hearing, and because DHS failed to serve him with the case plan or any pleadings (other than the initial dependency-neglect petition and termination petition) or secure his attendance or participation in any of the hearings before (10the termination hearing. We agree on this record that the trial court clearly erred in finding that Timothy had abandoned the children as defined by Arkansas Code Annotated section 9-27-303(2)(A), and therefore we reverse the termination of his parental rights on that basis. Arkansas Code Annotated section 9-27-303(2)(A) contains the definition of “abandonment,” and it provides: (2)(A) “Abandonment” means: (i) The failure of the parent to provide reasonable support for a juvenile and to maintain regular contact with a juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future; (ii) The failure of a parent to support or maintain regular contact with a child without just cause; or (iii) An articulated intent to forego parental responsibility. The evidence in this case showed that Timothy was in prison when the children were taken into DHS custody and remained in prison throughout the entirety of this proceeding. Timothy did receive notice of the emergency-custody petition while in prison. However, there is no evidence that Timothy was served with the emergency order of custody as required by Arkansas Code Annotated section 9-27-314(c)(1)(A). So the only Ininformation that the record reflects that Timothy had was that a 72-hour hold of the children had been taken, with no proof that there had been any court order of removal. Subsequent to that notice, Timothy received no assistance, guidance, or even minimal contact from DHS as to what he needed to do to comply with the case plan or contact his children for over fifteen months. In fact, it is undisputed that Timothy never even received the case plan, and that despite that omission, the trial court’s orders repeatedly found him to be in noncompliance with a case plan of which he had no knowledge. By the DHS caseworker’s own testimony, DHS had no contact with Timothy at all throughout the case and offered no services. Although appropriate services is not an element of the statutory abandonment ground, we conclude that the complete lack of services, communication, or guidance by DHS in this case is relevant in deciding whether Timothy abandoned his children. In Friend v. Arkansas Department of Human Services, 2009 Ark. App. 606, 344 S.W.3d 670, we wrote: Although imprisonment imposes an unusual impediment to a normal parental relationship, it is not conclusive on the issue of termination. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Nevertheless, a parent’s imprisonment does not toll his responsibilities toward his child. Malone v. Ark. Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Tolling a parent’s obligations to comply with reunification orders while he is in jail would be contrary to the goal .of the juvenile code to provide permanency for the child. Id.; see also Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). The appropriate inquiry where a parent has been ordered to comply with a court’s reunification orders and is incarcerated is whether the parent utilized those resources available to maintain a close relationship with the child. Malone, supra. 2009 Ark. App. 606, at 12-13, 344 S.W.3d at 677 (emphasis added.) Although.Zglesz-ewski supra, cited above, involved the adoption of a child by a stepparent and was decided under |12prior law, the supreme court in that case characterized abandonment as an indication that the parent deserted, forsook entirely, or relinquished all connection with or concern in the child. In Bradbury v. Arkansas Department of Human Services, 2012 Ark. App. 680, 424 S.W.3d 896, the appellant’s parental- rights were terminated based on the trial, court’s finding that he had abandoned the child. Even though the appellant had been incarcerated during the majority of the case, we stated that whether his incarceration constituted abandonment under the statute was questionable. More importantly, however, we affirmed on the basis that DHS had also alleged the “other factors” statutory ground and that, although the trial court made no specific finding on this ground, it -was nonetheless proved. In holding in our de novo.review that the “other factors” ground was proved, we relied on evidence that the appellant had failed to comply -with the case plan or avail himself of DHS services, and .that he had an .explosive temper and was facing a possible prison sentence-of thirty years. That cannot be said in the present case. In stark contrast to the appellant in Bradbury, Timothy received no services from DHS, nor was he even provided with the case plan or any orders of the court,, so it cannot be said that he failed to avail himself of services or was in willful noncompliance. Furthermore, unlike Bradbury, in this case the only statutory ground alleged by DHS and found by the trial court was that Timothy had abandoned his children. The trial court’s findings in the termination order in support of abandonment were as follows: hsThe father has had no contact with the department during the pendency of this case, and he has not visited with the juveniles during that period. The father had no just cause. No evidence that he ever requested counsel prior to the TPR, or that he requested services at any time. Limiting our analysis to this single ground, as we must, we conclude that the trial court clearly erred in this regard. Timothy testified that, although he was incarcerated during the entire proceedings, he did not abandon his children, and during his incarceration he was not included as a participant in the case despite the fact that DHS had actual knowledge of his location and address. We hold that this does not rise to the level of abandonment under a clear-and-convincing standard as defined by Arkansas Code Annotated section 9-27-303(2)(A), and therefore we reverse the termination of Timothy’s parental rights. Having concluded that there was a sufficient statutory ground to support the termination of -Dorletha’s parental rights, we affirm the trial court’s termination order as to. her. Based on our holding that the trial court clearly erred in finding that the ground of abandonment alleged against Timothy was proved by clear and convincing evidence, we reverse the termination of Timothy’s parental rights. Affirmed in part; reversed and remanded in part. Abramson, Virden, Gladwin, Glover, and Murphy, JJ., agree. Klappenbach, Vaught, and Brown, JJ., dissent. . DHS did not allege in its petition the "imprisonment” ground under Arkansas Code Annotated section 9-27-341 (b)(3)(B)(viii), which allows for termination when the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life. At the termination hearing, DHS moved to allow the pleadings to conform with the evidence to permit it to rely on the unalleged "imprisonment” ground to justify termination. However, the trial court denied the motion. Therefore, our review is limited to the only statutory ground alleged by DHS in the petition and found by the trial court, which was abandonment. . The dissenting opinion suggests that Timothy did receive the emergency-custody order. However, from our review of the record and the briefs, we conclude otherwise. The summons sent to Timothy at the beginning of the case states that “a lawsuit has been filed against you” with proof that he was served with the summons and complaint. The proof of service does not indicate that Timothy received the emergency order, which would typically appear at the "other” section of the document, which was left blank. At trial, Timothy testified that he received the petition. In appellant’s brief, he states that he only received a copy of the petition and not the order. And this does not appear to be disputed by DHS, who states in its brief that "Brinkley’s failure to visit the children occurred despite being on notice that the Department was requesting custody of his children. He was served with a summons and petition on June 2, 2015, which clearly explained that ‘the children were removed from the physical custody of Lambert.’ Brinldey’s own testimony further confirmed that he received the petition.” (emphasis ours). . See footnote 1, . Because we hold that there was insufficient evidence to support the termination, we need not specifically address Timothy’s remaining arguments.

ROBIN F. WYNNE, Associate Justice | , Appellant Thomas C. Ortega was convicted of rape and sentenced as, a habitual offender to life imprisonment. Ortega v. State, 2016 Ark. 372, 501 S.W.3d 824. Ortega timely filed a verified pro se postconviction petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), alleging grounds of prosecutorial misconduct, trial-court error, and ineffective assistance of counsel. The trial court denied relief, and Ortega lodged an appeal in this court from the denial of relief and has now filed a motion for extension of time to file his brief. Because it is clear that Ortega cannot prevail on appeal, we dismiss thé appeal, and Ortega’s motion is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is dear that the" appellant could not prevail. Justus v. State, 2012 Ark. 91, 2012 WL 664259. This court .will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 260 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. I. Prosecutorial Misconduct In his Rule 37.1 petition, Ortega merely used the term “prosecutorial misconduct” without any supporting facts or argument. This courthas held that a claim of- prosecutorial- misconduct is “an issue that could have been raised at trial.” Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006). Therefore, an issue of alleged prosecutorial misconduct is an issue that should have been raised at trial and on direct appeal and is not cognizable in a Rule 37.1 petition. To the extent- Ortega attempted to raise a claim of prosecutorial misconduct in his Rule 37.1, it is not cognizable. II. Trial-Court Error Ortega’s argument that the trial court abused its discretion when it found sufficient evidence.for the case to be presented to the jury under one of two alternative theories for rape — that he engaged in sexual intercourse or deviate sexual activity with another person by forcible compulsion or that the victim was incapable of consent because she was physically helpless — is also not cognizable in. a Rule 37.1 proceeding. Assertions of trial-court error., even those of constitutional , dimension, must be raised at trial and on direct appeal. See Howard, 367 Ark. at 26, 238 S.W.3d at 32; see also Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Furthermore, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or á claim of actual innocence, |ssuch a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott v. State, 2012 Ark. 199, at 6, 406 S.W.3d 1, 4. The trial court properly denied relief, finding that any allegation of an abuse of discretion or trial-court error should have been raised before and was not the basis for Rule 87.1 relief. III. Ineffective Assistance of Counsel Ortega also argued that his trial counsel was .ineffective for failing to prepare or present the affirmative defense of “consen-tual sexes[,]” for failing to argue a specific basis on which the motion for directed verdict “could be so had as a matter of law[,]” and for failing to develop evidence that would have allowed the jury to weigh the reasonable hypothesis consistent with his innocence. These allegations do not support an ineffective-assistance-of-counsel claim. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Howard, 367 Ark. at 31-32, 238 S.W.3d at 35-36. Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming | ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been, different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Although Ortega contends that his trial counsel did not present a defense for consensual sex, his argument fails. Consent may be a defense to a rape by forcible compulsion but cannot be a defense to a rape of a person who is physically helpless because he or she is, by definition, incapable of consent. See State v. Parker, 2010 Ark. 173, 2010 WL 1507232. However, raising the defense of consent is a factual issue in a rape prosecution and should | fibe addressed at trial and on direct appeal. Id. at 5-6 (victim was physically helpless at the time of sexual intercourse making factual issue of consent irrelevant in rape prosecution). During Ortega’s direct appeal, he asked this court to make credibility determinations and argued that “substantial evidenced supported] an act of consensual sexual intercourse.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 827. Specifically, he argued that there was evidence that contraindicated forcible compulsion and that the evidence was insufficient to show that the “victim was too intoxicated to consent to sexual intercourse.” Id. at 4-5, 501 S.W.3d at 827. Trial counsel raised a consensual-sex defense, and the claim was addressed on direct appeal and failed. Although Ortega claims counsel should have argued a specific basis in his motions for directed verdict so as to have them granted as a matter of law, this court noted that “defense counsel made a specific motion for directed verdict at the close of the State’s case, and renewed the motion at the close of all the evidence.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 826-27. Counsel cannot be found to be ineffective for failing to make an argument that is without merit. See Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-63 (2001); see also Noel v. State, 342 Ark. 35, 44, 26 S.W.3d 123, 129 (2000). Trial counsel made the motions for directed verdict, and Ortega has failed to state any additional grounds for the motion that counsel should have or could have advanced to the trial court that would have resulted in a directed verdict for the defense. Trial counsel’s failure to present evidence that would allow the jury to weigh a reasonable hypothesis consistent with his innocence was not ineffective assistance. A | ficonclusory claim without factual substantiation will not support a basis for postconviction relief. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Nevertheless, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or a claim of actual innocence, such a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott, 2012 Ark. 199, at 6, 406 S.W.3d at 4; see Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Regarding Ortega’s generalized claims that trial counsel was ineffective because the consensual-sex defense, directed-verdict motions, and failure-to-establish-evidence-of-actual-innocenee claim did not result in a different outcome at trial, Ortega fails to establish that counsel was ineffective. Where it is asserted that counsel was ineffective for failure to make an argument, the petitioner must show that the argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. Ortega failed to state the nature or scope of any argument that trial counsel should have made or any prejudice suffered. The trial court properly denied relief, and Ortega fails to demonstrate that he was entitled to postconviction relief. Appeal dismissed; motion moot. Wood, J., concurs. Hart, J., dissents. . Ortega was charged and tried under alternate theories of rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5 — 14— 103(a)(1) (Repl. 2013). A person also commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is physically helpless. Ark. Code Ann. § 5 — 14—103(a)(2)(A).

COURTNEY HUDSON GOODSON, Associate Justice | Appellant, Willie Hutcherson, appeals 'the dismissal of a pro se civil complaint and amended complaint, which alleged that the appellees, acting under color of state law, had engaged in discrimination in violation of the Arkansas Civil Rights Act of 1993 (ACRA), codified as Arkansas Code Annotated sections 16-123-101 to -108 (Repl. 2016), had also engaged in a civil conspiracy, and committed the tort of outrage. Appellees filed a motion to dismiss-the appeal based on, among other things, the fact that the claims were barred by | gthe statute of limitations. The circuit court granted the motion and dismissed the complaint without prejudice based on the grounds set forth in appel-lees’ motion to dismiss. We review a circuit court’s decision on a motion to dismiss a complaint by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In order to prevail on a motion to dismiss a complaint on the basis of a statute-of-limitations defense, it. must be barred on its face. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). Viewing the facts alleged in Hutcherson’s complaint as true, it is clear from the face of the complaint that his claims were barred by the statute of limitations. Therefore, we affirm without reaching the other grounds on which Hutcherson’s complaint was dismissed. In 2000, Hutcherson was found guilty by a jury of four counts of aggravated robbery, three counts of misdemeanor theft of property, and one count of felony theft of property. Hutcherson was sentenced as a habitual offender to an aggregate term of 2880 months’ imprisonment. Hutcherson’s convictions and sentences were affirmed by the Arkansas Court of Appeals. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). In support of the claims set forth in the civil complaint, Hutcherson alleged that the statements of two investigating officers had been disclosed to the defense by the prosecution |3during discovery;' that his original public defender, Steven Abed, had not read those statements until Hutcher-son gave him copies of those statements during the course of a pretrial hearing; that Abed ■ disregarded Hutcherson’s request to turn the statements over to the trial judge; and that Hutcherson subsequently observed Abed hand over the two statements to the prosecutor, Terry Bell, outside the courtroom. Hutcherson alleged that this conduct showed that Abed and Bell engaged in a civil conspiracy and 'Committed the tort of outrage by covering up the ethical violations, committed by Abed and by obtaining a conviction despite apparent, flaws in the investigation of the crimes. Although Abed withdrew as Hutcherson’s counsel prior to trial, Hutch-erson further alleged that prosecutor Bell wrongfully influenced his second public defender such that mistakes were made that led to his conviction and the waiver of issues that should have been preserved on direct appeal. Finally, Hutcherson asserted that the appellees had acted under color of state law when they violated his civil 'rights and engaged in tortious conduct. For the reasons explained below, Hutcher-son’s tort claims and civil rights claims are barred by the statute of limitations. Once a defendant. has affirmatively raised a statute-of-limitations defense, and it is clear from the face of the complaint that the action is barred by the applicable limitations | ¿period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996). The statute of limitations begins to run when the injury occurs, not when it is discovered. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759. Affirmative actions of concealment of a cause of action will toll the statute of limitations. Chalmers, 326 Ark. 895, 935 S.W.2d 258. Ignorance of a right to pursue a cause of action, however, does not prevent the operation of the statute of limitations. First Pyramid Life Ins. Co. of Am. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992). The statute is tolled only when the ignorance is produced by affirmative and fraudulent acts of concealment. Id. Therefore, to rebut a limitations defense, a plaintiff must describe specific fraudulent acts committed for the purpose of concealing a cause of action. See id. (holding that mere allegations of fraud are not enough to create an issue of material fact that would avoid summary judgment on a limitations defense). We have traditionally applied a three-year statute of limitations to actions arising under a liability that is imposed by statute. Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225. Moreover, Arkansas Code Annotated section 16-123-105(c) states in pertinent part that, in construing the ACRA, courts must look for guidance to state and federal decisions pertaining to actions filed pursuant to the federal civil rights act, 42 U.S.C. § 1983. Federal courts have typically applied the three-year statute of limitations to § 1983 actions. Jones v. Frost, 770 F.3d 1183 (8th Cir. 2014); Miller v. Norris, 247 F.3d 736 (8th Cir. 2001). [ fiIt has long been the law in this state that a three-year statute of limitations applies to all tort actions hot otherwise limited by law. O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). A civil conspiracy is an intentional tort. Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). We have held that the tort of outrage is governed by the three-year statute of limitations. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). Based on the above, all of Hutcherson’s claims are subject to the three-year statute of limitations found in Arkansas Code Annotated section 16-56-105(3). Treating the facts alleged in the complaint and amended complaint as true, Hutcherson alleged that the actions that gave rise to the claims set forth in his complaint took place in 1999, before and during the timeframe of his trial and conviction. Hutcherson’s allegations further demonstrated that he was aware of the alleged discriminatory and tortious conduct at the time it occurred. Hutcherson filed his civil action in 2016 — over ten years after the three-year statute of limitations had expired. In view of the above, it is clear from the face of Hutcherson’s complaint that his claims were barred by the statute of limitations, and Hutcherson failed to rebut this defense by providing sufficient non-conclusory allegations of fraudulent concealment. Chalmers, 326 Ark. 895, 936 S.W.2d 258. Affirmed. . Appellees also moved to dismiss the complaint as barred by res judicata, sovereign immunity, qualified immunity, and absolute prosecutorial immunity, and because Hutch-erson had failed to . state claims against the named defendants and was otherwise barred from collaterally attacking criminal proceedings through a separate civil action. . Hutcherson asserted in his complaint that these two statements identified three individuals other than Hutcherson as the perpetrators of two of the robberies, .Hutcherson contended that Abed had violated the rules of professional conduct by turning these statements over to the deputy prosecutor and that the prosecutor failed to report the violation and instead used the conduct to influence the public defender’s actions in defending the case. . The United States Supreme Court held that § 1983 claims accruing within a particular state should be governed by that state’s statute of limitations governing personal-injury claims. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded on other grounds by 28 U.S.C. § 1658(a), as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). In Arkansas, the statute of limitations for personal-injury claims is three years. Ark. Code Ann. § 16-56-105(3) (Repl. 2005).

MIKE MURPHY, Judge | ¶ This medical-malpractice case stems from the death of John D. Peters, Jr. (“Mr. Peters”), who was admitted to appellant Turning Point Behavioral Health (“Turning Point”), a unit located at Saint Mary’s Regional Medical Center (“St. Mary’s”), and upon his release, hanged himself ten days later. Appellee James Robertson Peters, as personal representative of the estate, initiated suit. We affirm. |¾1. Facts and Procedural History Mr. Peters was admitted to Turning Point following the death of his wife of 37 years and two resulting suicide attempts. Mr. Peters had long suffered from bipolar disorder with periods of severe anxiety. His second suicide attempt occurred on December 10, 2013, and resulted in an emergency-room visit to St. Mary’s. The inquiry and assessment form that was filled out in the emergency room recognized that Mr. Peters’s son, John D. Peters III (“Jay”), was Mr. Peters’s legal guardian. Notably, both Mr. Peters and Jay signed the consent for voluntary admission on December 10, 2013. On December 13, 2013, a social worker from Turning Point filed a petition to involuntarily admit a person with mental illness, which the Pope County Circuit Court granted on December 16, 2013. Nothing in the petition acknowledged that Mr. Peters had a legal guardian. On December 26, 2013, Mr. Peters was discharged from Turning Point on his own recognizance. The discharge summary revealed that Mr. Peters denied further suicidal ideations; he had engaged in no self-destructive behavior since admission and seemed ready for discharge; he was future oriented and had interacted very positively with staff and peers; and it was felt that he had reached maximal benefit of hospitalization. On January 6, 2014, Mr. Peters hanged himself. Four days after the death of Mr. Peters, appellees’ (Mr. Peters’s estate and heirs) attorney sent a seven-page letter to appellant with the heading “Important Notice Regarding Document and Data Preservation.” This broad letter gave appellant notice that the heirs and estate of Mr. Peters had retained legal counsel tp investigate a potential |3claim, and appellant was noti fied “not to destroy, conceal or alter any paper or electronic files....” At that time, medical records of discharged patients were, kept in two places: (1) copies of the paper portion of the records were scanned to Laserfiche by a third-party vendor and then shredded and (2) the electronic portion of the medical records was maintained 'on a computer program known as Medi-.Tech, . After receipt of the letter, Tim Copeland,'chief'quality officer of Russellville Holdings, LLC (another name for appellant) told the director of the health-information-management department, Paula Page, to sequester the paper portion of Mr. Peters’s records. Subsequently, Turn-, ing Point retained legal counsel. Turning Point responded to the letter on February 7, 2014, requesting a meet-and-confer conference to discuss the breadth and scope of the document-preservation letter. Turning Point sent a follow-up request on February 14, 2014, because counsel had not responded. A few. days later, the. attorneys conducted a telephone conference, and appel-lees’ attorney sent a follow-up one-page letter narrowing down the preservation request. Around the same time* but before the telephone conference occurred, Annette Smith replaced Paula Page as health-information-management director. In an affidavit, Smith explained that she had not been provided a copy of the letter that the hospital received regarding document and data preservation. She said at some point between late January but before February 10, 2014, she discovered, in a drawer of a desk previously used by Paula Page, Mr. Peters’s paper medical records. She explained, as in the ordinary course of business, that she took the complete paper portion to EDCO Health Information Solutions, the third-party vendor that scans medical records into Laserfiche, Uto be scanned. Smith received the paper medical records back once they had been scanned. At some point between February 10, 2014, and February 9, 2015, the paper portion of the'records was shredded in the usual and ordinary course of business; she explained that this was not done maliciously or to destroy evidence. From her point of view, “a superior copy of the paper records existed on Laserfiche at the time the paper portion was shredded.” Appellees eventually filed suit on May 6, 2015. Prior to, and during the course of, litigation, four different'sets of the medical records were produced, for various reasons that were set out in the affidavit by Smith. In February 2015, after the contents of the medical records had changed four times, counsel for appellees made a demand for a physical inspection of Mr. Peters’s original medical■' chart. Of particular importance, appellees sought to document the actual content of the original physical chart as it was on the day of Mr. Peters’s discharge and whether the original chart contained guardianship orders that appellees claimed they had provided to Turning Point, but Turning Point claimed the contrary. It was then that the hospital and the appellees discovered that the original paper medical chart had likely been destroyed by Saint Mary’s. As a result, appellees filed a motion to compel their access to Mr. Peters’s original chart or, in the alternative, to force Saint Mary’s to . admit on the record-that they had intentionally destroyed the original chart. In response, appellant stated that it could not permit inspection of. the original chart because it had been destroyed. Appellees filed a motion to. strike appellant’s answer, arguing that their ability to obtain a full and fair trial had been irretrievably compromised as a result of the evidentiary destruction of the | ¿medical records. After a hearing on the motion, the circuit court found that, after careful consideration, the original medical file in question was so important to the case that its preservation was essential to a just adjudication. In its order, the court recognized that striking an answer is very serious, but it found appellant’s conduct to be most egregious. Appellant filed a motion to reconsider, but the circuit court denied appellant’s motion after a hearing. Appellant timely appealed, and we have jurisdiction per Ark. R. App. P. — Civ. 2(a)(4), which states that an appeal .may be taken from an order that strikes an answer. In Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 319, 820 S.W.2d 444, 445 (1991), the supreme court explained that the general purpose of Ark. R. App. P. — Civ. 2(a)(1) (an appeal may' be taken from a final judgment or decree) is to prevent piecemeal appeals while portions of the litigation remain unresolved but that, quite differently, Ark. R. App. P. — Civ. 2(a)(4) allows a piecemeal approach. On appeal, appellant argues three points: (1) the court erred as a matter of law in finding that spoliation of evidence occurred; (2) the court erred as a matter of law in finding , that appellees’ letters, sent long before any suit was filed, unilaterally imposed a duty to preserve the paper copy of the paper portion of the record; and (3) the court erred in imposing the extraordinary sanction of striking the answer. II. Spoliation of Evidence On appeal from a circuit court’s determination of a purely legal issue, we must decide only if its interpretation of the law was correct, as we give no deference to the circuit court’s conclusion on a question of law. Kraft v. Limestone Partners, LLC, 2017 Ark. App. 315, at 5, 522 S.W.3d 150, 153. When a case is tried by a circuit court sitting | (¡without a jury, the inquiry on appeal is whether the circuit court’s fact-findings are clearly erroneous, or clearly against the preponderance of the evidence. Rial v. Boykin, 95 Ark. App. 404, 408, 237 S.W.3d 489, 492 (2006). Recognition must be given to the circuit court’s superior opportunity to determine credibility of witnesses and the weight to be given to their testimony. Id. Our supreme court has defined “spoliation” as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.” Goff v. Harold Ives Trucking Co., 342 Ark. 143, 146, 27 S.W.3d 387, 388 (2000). However, we must begin our analysis by acknowledging that Arkansas case law on spoliation is sparse. For ■ example, this court has not previously addressed whether spoliation of medical documents occurs when the documents are scanned and converted to another format. The spoliation cases in Arkansas involve tangible evidence, such as a halogen lamp and a water-pipe clamp and bolt. See Bunn Builders, Inc. v. Womack, 2011 Ark. 231, 2011 WL 2062393; see also Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000). Our supreme court held thát a circuit court is not required to make a specific finding of bad faith on the part of the spoliator. Bunn Builders, supra. Unlike the case at hand, the plaintiffs in Bunn Builders sought to implement jury instructions on spoliation rather than striking the answer. Bunn Builders, 2011 Ark. 231, at 2. Regardless, it serves as guidance in our analysis on whether spoliation actually occurred. In Bunn Builders, the circuit court found that the parties had a duty and an agreement to preserve the evidence in the case but that the motive behind the destruction of evidence was unclear and granted |7that the jury be instructed on spoliation. Id. The appellants appealed, arguing that the circuit court erred in instructing the jury on spoliation because there was no initial finding by the court that the destruction was done in bad faith. Id. The supreme court explained that Arkansas courts have never specifically held that a circuit court must find intentional destruction indicating a desire to suppress the truth before a spoliation instruction can be given. Id. at 10. Therefore, the supreme court concluded that a finding of bad faith on behalf of the spoliator is not necessary. Id. at 11. The court in Bunn Builders relied on Rodgers for guidance. Rodgers was injured in a construction-site accident when a section of water pipe that was suspended from the ceiling fell and struck him as he was pulling feeder wires out of an electrical panel in the basement of the Pulaski County Courthouse. Rodgers, swpra. The parties stipulated that the appellee, the contractor, had lost the clamp and bolt that held the water pipe to the ceiling before the accident occurred, and the appellants requested a spoliation instruction. Rodgers, 343 Ark. at 129, 33 S.W.3d at 508. The circuit court rejected a non-AMI jury instruction propounded by the appellants, noting that the clamp and bolt were available at the time the appellants’ lawsuit was initiated and that the appellants had presented no proof that the contractor willfully lost or intentionally destroyed the evidence. Id. On appeal in Rodgers, the appellants argued that the record reflected that the contractor had been in physical possession and control of the pipe, clamp, and bolt involved in the accident. Rodgers, 343 Ark. at 130, 33 S.W.3d at 510-11. The supreme court affirmed the circuit court’s decision to reject, appellants’ spoliation instructions because (1) the circuit court specifically found that the evidence had not been | ^intentionally lost or destroyed; (2) the circuit court had permitted counsel to argue the same points even though the instructions were not submitted to the jury; and (3) the evidence was available shortly after the accident, but no meaningful discovery was commenced until five years following the accident. Id. The supreme court held that “[i]n absence of any intentional misconduct, we cannot say that the circuit court abused its discretion by failing to give the jury an instruction on spoliation of evidence.” Id. One notable difference in Rodgers is that the case had been initiated, yet discovery was not conducted until five years later. Here, the case had not yet been initiated when the evidence was considered destroyed. Appellant first argues that spoliation of the medical records did not occur because the paper portion of Mr. Peters’s medical records was not shredded until after the entire paper portion of the record had been scanned to Laserfiche. However, it is important to appellees that they should have had an opportunity to inspect the physical paper chart as it existed when Mr. Peters was discharged, as appellees contend that Mr. Peters was not adequately assessed by the treating physician, Dr. Stinnett. Additionally, it is important to appellees to know whether copies of the guardianship orders were in the paper file to show that appellant wrongfully discharged Mr. Peters without consulting his guardian. Appellant explained that it is its policy to recognize guardianship orders only if they are located in the patient’s medical chart. Appellant further contends that the electronic version of the record did not contain a guardianship order, so it must not have been in the record because the electronic copy is an exact replica. On the contrary, appellees argue that having the opportunity to inspect the actual chart, as it existed at the time of |fldischarge, could reflect otherwise. Appellees assert that a genuine dispute as. to the actual content of the medical record on the day of discharge exists and that the only way to resolve this issue is to examine the original. We agree and decline to accept appellant’s logic that a duplicate of the evidence was made before it was destroyed. It is appellees’ burden to prove that Mr. Peters was wrongfully discharged, and to do so appellees need to know what the discharge notes revealed the day of Mr. Peters’s release and whether. Dr. Stinnett wrongfully released his patient on his own recognizance, because a guardianship order existed in the file. It is well established that we require the fact-finder to base its decision on proof, and not mere speculation or conjecture. Rodgers, 343 Ark. at 131, 33 S.W.3d at 509-10. Here, the parties and the fact-flnder would be required to speculate as to what was in the stack of documents and what was actually in front of the caregivers when the decision to discharge Mr. Peters was made. Moreover, for our analysis, the manner in which appellant destroyed the records is irrelevant because, as determined in Bunn Builders, a finding of bad faith is not necessary. We distinguish the situation at hand from one in which the letter to preserve the records came after the flies had been converted to an electronic format. Here, we find it notable that appellees sent a letter to preserve the documents before they were destroyed and converted into an electronic format. As in Rodgers, the evidence was available following the death of Mr. Peters, but unlike Rodgers, meaningful discovery had commenced, yet destruction of the evidence still occurred. For these reasons, we must affirm on this point. | mill. Duty to Preserve Other courts have held that whether a duty to preserve evidence exists is a question of law for the court. Cockerline v. Menendez, 411 N.J.Super. 596, 988 A.2d 575, 589 (App. Div. 2010). This court does not defer to the circuit court on a question of law. Clark v. Caughron, 2017 Ark. App. 409, at 2, 526 S.W.3d 867. We review the issue de novo, as on review of any question of law, and simply apply the applicable law. Muhammad v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). Under Ark. R. Civ. P. 37(b)(2), a party risks sanctions if he or she destroys documents or other evidence after the court has issued an order compelling discovery or a protective order, for destruction constitutes an obvious failure to comply with the order. However, the rule does not expressly address the destruction of relevant documents before litigation has commenced or after a complaint has been filed but before the documents are sought via discovery. 2 David Newbern, John J. Watkins, D.P. Marshall Jr, & Brandon J. Harrison, Arkansas Civil Practice & Procedure § 21:16 (5th ed. 2017). In Arkansas, the standard is very clear in criminal cases that the State’s duty to preserve evidence is limited to that which “might be expected to play a significant role in the suspect’s defense” and that the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Lee v. State, 327 Ark. 692, 700, 942 S.W.2d 231, 235 (1997). However, the duty is not so clear in civil cases. Courts in other jurisdictions have held that a party has an obligation to preserve relevant evidence upon receiving notice of being sued and when he or she should know Inthat it may be relevant to future litigation. Newbern' et a!., supra. Further, § 21:16 explains, The scope of the duty to preserve evidence “is not boundless;” and á potential litigant “need do only what is reasonable under the circumstances.” Likewise, the duty to preserve evidence does not extend to every document in one’s possession, for such a responsibility would “cripple large corporations .., that are almost always involved in litigation.” As one U.S. • District Judge has observed, “to hold that a corporation is under a duty, to preserve all e-mail potentially relevant to any future. litigation would be tantamount to holding that the corporation must preserve all e-mail,” a result that would be “especially burdensome where the e-mail system [is] used primarily for routine communication. (Citations omitted.) However, the Eighth Circuit has acknowledged it is less willing to let corporations hide behind their retention policies. The Eighth Circuit in Lewy v. Remington Aims Co. concluded that “a corporation cannot blindly destroy documents and expect to be shielded by a'seemingly innocuous document retention policy.” 836 F.2d 1104, 1112 (8th Cir. 1988). The Lewy court admonished the defendant for negligently failing to preserve the evidence requested and suggested that a court should consider whether the record retention policy is “reasonable considering the facts and circumstances surrounding the relevant documents.” Id. The Eighth Circuit elaborated in Morris v. Union Pacific Railroad, 373 F.3d 896 (8th Cir. 2004), to also look at the intention of the company destroying evidence. Here, appellees argue that a similar standard in criminal eases should apply in civil cases; they argue that appellant was under a duty to preserve all items that “might be material” to a potential claim. Appellees assert that it was reasonably foreseeable that the original paper chart might be material to that potential claim, We agree. ' | i„We rely on Bum Builders, supra, for insight into our policy. There, painters were painting a building late at night, and after they had left, a fire destroyed the building. Days later, the owners of the building and the insurance company (the plaintiffs) retained certain items for preservation and' testing, including a halogen lamp that had been left by the painters; Before filing suit, the painters’ insurance company (the defendant) sent a'letter requesting that it be informed prior to, and present for, any examination or inspection of those items. The plaintiffs sent a letter to defendant claiming that the investigation was a result of the painters’ negligence. Thereafter, the lamp was authorized to be destroyed without inspection or testing by the defendant. The supreme court affirmed the circuit court’s finding that the parties had a duty and an agreement to preserve the evidence in the case; the court therefore granted their request for a spoliation instruction. Similarly, it is undeniable that appellant was on notice of a potential suit. Appellant was put on notice long before litigation commenced that it was to preserve “original dictation related to the intake, discharge, or care of Mr. Peters, whether maintained in digital, cassette tape format or otherwise.” Moreover, appellant acknowledged the request and originally sequestered the paper records. On appeal, appellant asserts that it was in compliance with the obligations under Arkansas law regarding the retention and preservation of medical records. However, that is not sufficient because not only was it reasonably foreseeable that th'e original medical records would be material to a potential claim, but also because the paper records existed at the time the letter was sent, and appellant agreed to retain them. It was not unduly burdensome for appellant to maintain 113the paper records. Unlike the example of the burdensome requirement that a corporation to preserve all e-mail correspondence, appellant was not required to keep all the.patients’ paper records, just Mr. Peters’s. For the foregoing reasons, we find that a duty attached. IV. Sanction of Striking an Answer The imposition of sanctions rests in the circuit court’s discretion. Ramsey v. Dodd, 2015 Ark. App. 122, 456 S.W.3d 790. It is crucial to our judicial system that circuit courts retain the discretion to control their dockets and imposition of discover sanctions. Lake Village Health Care Ctr., LLC v. Hatchett, 2012 Ark. 223, 407 S.W.3d 521. The circuit court is in a superior position to judge the actions and motives of the litigants, and the circuit court’s rulings should not be second-guessed. Id. Accordingly, we review the imposition of sanctions, even severe ones, under an abuse-of-discretion standard. Ramsey, 2015 Ark. App. 122, at 4-5, 456 S.W.3d at 793. A court commits an abuse of discretion when it acts thoughtlessly, improvidently, or without due consideration. Ocwen Loan Servicing, LLC v. Mickna, 2017 Ark. App. 430, at 4, 2017 WL 3882338. Arkansas Rule of Civil - Procedure 37(b)(2)(C) provides that if a party fails' to obey an order to provide or permit discovery, the court in which the action is pending‘may make such orders in regard to the failure as are just, including an order striking out pleadings or rendering a judgment by default against the disobedient party. The Arkansas Supreme Court noted in Goff that the same- sanctions available under the discovery rules are allowed as a spoliation sanction, which includes striking an answer of an offending party. 342 Ark. at 150, 27 S.W.3d at 391. . 114A review-of the record reveals that the circuit court did not reach its decision without due consideration. .The court conducted two hearings' and directed thoughtful questions to both parties.' In 'fact, the court admonished appellees’ counsel for cutting off the court’s questions and input. The circuit court chose to reject appellant’s argument that the electronic copy was an exact replica and therefore considered an “original.” In granting the motion to strike, the court acknowledged that striking the answer of a party is very serious but that the conduct was most egregious as evidenced by the fact that appellant was “clearly placed on notice not to destroy these critical documents,” yet it proceeded to destroy the original file anyway. The circuit court further considered the alternative to instruct the jury on spoliation of evidence, but found that it would be insufficient given the importance of the factual dispute surrounding which documents were in the original file. We recognize that we have never addressed a case in which the sanction was to strike the entire answer, but the option to do so does exist. Because the circuit court clearly found that appellant willfully destroyed the paper medical records and that a curative instruction, would be insufficient, we cannot say that the court abused its discretion by striking the answer. Affirmed. Virden, J., agrees. Glover, J., concurs. . The discharge summary report was dictated six days after Mr. Peters’s death.

KAREN R. BAKER, Associate Justice | íAppellant Myron Newjean Anderson, Jr., filed a pro se motion for appointment of counsel in connection with an appeal from orders entered by the circuit court denying Anderson’s pro se “Motion for Leave to File an Amended Declaratory Judgment” and a petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). Anderson sought a declaratory judgment on the basis that the elements of a terrorist act as set forth in Arkansas Code Annotated section 5-13-310 (Repl, 2006) are internally inconsistent, which Anderson contends renders the statute unconstitutional. In his petition to correct an illegal sentence, Anderson asserted that his sentence is illegal because it was imposed pursuant to an allegedly unconstitutional statute. On appeal, [¡¡Anderson advances the same arguments and allegations contained in the pleadings filed below. For the reasons set forth' below, it is clear from a review of the record that Anderson has failed to allege sufficient facts or to provide authority establishing that the challenged statute is unconstitutional on its face or in its application' and has likewise failed to demonstrate that his sentences are facially illegal. We therefore affirm, which renders his motion for appointment of counsel moot. In 2007, a jury found Anderson guilty of five counts of committing a terroristic act and one count of being a felon in posses: sion of a firearm, which arose out of the shooting of seven persons in a nightclub. The jury imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458, 2009 WL 196315 (Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR 08-458). Anderson contended below and contends on appeal that .the statute under which he was charged and convicted is unconstitutional because there are inconsistencies with respect to the definition of the elements; of the offense. Anderson’s arguments are difficult to discern, but he appears to contend that the statute is inconsistent in that one subsection defines the offense to include shooting with the purpose of causing injury to another person; while another subsection of the act defines the offense narrowly to include shooting with the purpose of causing injury to another person at an • occupiable structure. Anderson asserts-1 ¡¡that he was denied due process because the information failed to provide notice that’ a terror-istic act must be committed against the occupant of, an occupiable structure. Anderson fails to explain or to provide any authority for the proposition that the alleged inconsistency in Arkansas Code Annotated section 5-13-310(a)(l)(A) and section 5-13-310(a)(2) renders the statute unconstitutional on its face or to establish how the alleged inconsistency amounted to a denial of due process. It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality that requires the incompatibility between it and the constitution to be clear before we will hold it unconstitutional. Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, at 7, 401 S.W.3d 466, 470. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality, and the heavy burden of demonstrating the unconstitutionality is on the one attacking it. Id. If possible, this court will construe a statute so that it is constitutional. Id. (citing McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006)). Invalidating a statute on its face is, manifestly, strong medicine that has been employed sparingly and only as a last resort. Nat’l Endowment for the 4Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Furthermore, we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case in the lower court. Drummond v. State, 320 Ark. 385, 389, 897 S.W.2d 553, 555 (1995). In order to sufficiently challenge a statute as unconstitutional on its face, an appellant is required to develop allegations before the circuit court that are supported by sufficient authority that the statute is either void for vagueness or overbroad. See Raymond v. State, 354 Ark. 157, 167, 118 S.W.3d 567, 574 (2003). The facial-overbreadth doctrine is restricted in its application and is not recognized outside the limited context of the First Amendment. Musser v. Mapes, 718 F.3d 996, 1001 (8th Cir. 2013) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also Bailey v. State, 334 Ark. 43, 54, 972 S.W.2d 239, 245 (1998). The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also Cambiano v. Neal, 342 Ark. 691, 704, 35 S.W.3d 792, 799-800 (2000). A person whose actions are clearly proscribed by a- statute cannot assert its potential vagueness as applied to other persons or circumstances unless the law restricts constitutionally protected conduct. Garner v. White, 726 F.2d 1274, 1278 (8th Cir. 1984). We have held that, as a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. Bowker v. State, 363 Ark. 345, 355-56, 214 S.W.3d 243, 249 (2005). When challenging the constitutionality of a statute on grounds of | ^vagueness, the individual challenging • the statute must be one of the “entrapped innocent” who has not received fair warning that certain conduct has been proscribed. Id. However, if, by his or her action, that individual clearly falls within the conduct proscribed by the statute, he or she cannot be heard to complain. Id. Here, Anderson did not argue that the challenged statute was either overbroad or void for vagueness, and there is no authority that would have supported such arguments. Arkansas Code Annotated section 6-13-310 does not. implicate First Amendment rights, and Anderson can hardly be considered an- “entrapped innocent” as his conduct of firing shots inside a crowded nightclub clearly fell within the conduct proscribed by the statute. Bowker, 363 Ark. at 355-56, 214 S.W.3d at 249. Nor does Anderson provide authority or argument demonstrating that he was denied due process in the application of the statute under circumstances that led to his convictions and sentences. This court has said on numerous occasions that it will not consider arguments, even constitutional ones, that are not supported by legal authority or convincing argument and will not address arguments, when it is not apparent -without further research that the argument is well taken. Williams v. State, 371 Ark. 550, 558, 268 S.W.3d 868, 874 (2007). In sum, Anderson does not meet the heavy burden necessary to mount a constitutional challenge to section 5-13-310. Miller, 2012 Ark. 165, at 7, 401 S.W.3d at 470. The allegations set forth in Anderson’s petition to correct an illegal sentence are equally unavailing. Under Arkansas Code Annotated section 16-90-111 (Repl. 2016), a sentence is illegal when it is illegal on its face, and we have explained that a sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant |fiwas convicted. Bell v. State, 2017 Ark. 231, at 3-4, 522 S.W.3d 788, 790 (citing Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999)). Anderson does not contend that the sentences imposed on him exceeded the statutory maximum. Rather, he argues that his sentences are illegal based on his allegation that section 5-13-310 is unconstitutional. A review of the record clearly shows that Anderson’s sentences did not exceed the statutory maximum. The judgment-and-eommitment order reflects that Anderson was convicted of five counts of committing a terroristic act, of which three counts were designated as Class Y felonies, and two counts were designated as Class B felonies under section 5-13-310(b)(1) and (b)(2). Anderson was also convicted of being a felon in possession of a firearm, which is a Class B felony. See Ark. Code Ann. § 5-73-103(c)(1) (Repl. 2006). Moreover, Anderson’s habitual-offender status subjected him to enhanced sentences for Class Y felonies of not less than ten years nor more than sixty years or life, as well as enhanced sentences for Class B felonies of not less than five years nor more than thirty years. Ark. Code Ann. § 5-4-501(a)(2)(A) & (2)(C) (Repl. 2006). Anderson was sentenced to two terms of 240 months’ imprisonment and one term of 480 months’ imprisonment for his convictions for three counts of a Class Y terrorist act; and was sentenced to two terms of 120 months’ imprisonment for his convictions for two counts of a Class B terroristic act; finally, he was sentenced to 360 months’ imprisonment for his conviction for one count of being a felon in possession of a firearm. As stated above, the sentences were imposed consecutively for an aggregate term of 1320 months’ imprisonment for all six convictions. In view of the |7above, Anderson’s sentences do not exceed the statutory maximum and are therefore not illegal sentences pursuant to section 16-90-111. Affirmed; motion moot. . Because both orders denying relief and both notices of appeal from those orders were in-' eluded in one record lodged in this court, the appeal of both orders has been consolidated. . Arkansas' Code Annotated section 5-13-310(a)(1)(A) (Repl, 2006) states in-pertinent part, that a person commits a terroristic act if, while not in the commission of a lawful act, the person shoots at ... an object -with the purpose to cause injury to another person. Arkansas Code Annotated section -5 — 13— 310(a)(2) states in pertinent part that a person commits a terroristic act if ... the person shoots with the purpose to cause injury to a person or damage to property at an occupia-ble structure. . A similar argument was advanced by Anderson’s Codefendant, Michael Anderson, which was rejected by this court in Anderson v. State, 2013 Ark. 332, at 4-5 (per curiam). Anderson also advanced a similar argument in a prior petition to reinvest jurisdiction in ■ the trial court to consider a petition for writ of error coram nobis, which was likewise rejected by this court, in Anderson v. State, 2017 Ark. 44, at 5-6, 510 S.W.3d 755, 759 (per curiam).

KENNETH S. HIXSON, Judge 11 Appellant David Box, a former employee of appellee J.B. Hunt Transport (hereinafter “J.B. Hunt”), brings this interlocutory appeal from the trial court’s order granting J.B. Hunt’s motion for an injunction and temporary restraining order. In the order, the trial court enjoined Box from disclosing confidential information and trade secrets to Hub Group, Inc. (hereinafter “Hub Group”), and from employment with Hub Group for a period of one year from Box’s separation from J.B. Hunt: The temporary order was based on three agreements containing confidentiality, noncompete, and restricted stock provisions executed between the parties during Box’s employment. Box raises six arguments for reversal of the trial court’s order. Box argues that (X) the trial court erroneously relied on recitals in the agreements; (2) J.B, Hunt failed to prove unlikelihood of success of demonstrating that Box breached any agreement; (3) the trial court’s order made no findings that any agreement complied with Arkansas law; (4) the trial court erroneously applied Act 921 of ,2015 retroactively; (5) the trial court improperly awarded J.B. Hunt attorney’s fees and costs; and (6) the trial court made improper and premature rulings ih anticipation of a jury trial. We agree that the trial court erred in granting the preliminary injunction and temporary restraining order because J.B. Hunt failed to demonstrate a likelihood of success on the merits and the trial court made insufficient findings and conclusions to support the injunction and restraining order. Therefore, we reverse and remand. As a threshold matter, we address J.B. Hunt’s motion to dismiss Box’s appeal, which was filed while the appeal was pending and passed until the case was submitted. In its motion to dismiss, J.B. Hunt asserts that it recently exercised its right in the court below to a voluntary 'dismissal of its underlying complaint against Box under Arkansas Rule of Civil Procedure 41(a). J.B. Hunt further asserts that the trial court entered an order dismissing its complaint without prejudice. J.B. Hunt argues that because its original claims have been dismissed without prejudice, the provisional remedy based on the claims, i.e,, the temporary restraining order and preliminary injunction, have been dissolved. That being so, J.B. Hunt- contends that this appeal is moot because any decision rendered would have no practical legal effect on an existing legal controversy. As a general rule, appellate courts will not review issues that are moot. Allison v. Lee Cnty. Election Comm’n, 359 Ark. 388, 198 S.W.3d 113 (2004). Here, however, we cannot agree that the'order of dismissal referenced by-J.B, Hunt in its motion to dismiss rendered lathis appeal moot, At,the time the record was filed with our court, there had been no such order of dismissal entered, and it is therefore not part of the record. We will not consider a document not in the record. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). Therefore, J.B. Hunt’s argument that the appeal should be dismissed because it dismissed its action pursuant to Arkansas Rule of Civil Procedure 41(a) is not before us. We observe that, as an alternative reason to dismiss the appeal, J.B. Hunt asserts that the temporary restraining order expires by its terms on October 27, 2017, and that-this case was submitted to our court with oral arguments scheduled for October 25, 2017, making a5 decision prior to expiration of the temporary order practically impossible. However, we do not agree that the expiration of the temporary order moots our review of the order. In the order being appealed, the trial court awarded attorney’s fees and costs to J.B. Hunt, which is one of the issues Box raises on appeal. In addition, in the temporary restraining order the trial court ordered J.B. Hunt to post security in an amount sufficient to pay the damages sustained by Box should he be found to have been wrongfully enjoined or restrained. This provision in the trial court’s order is expressly authorized by Arkansas Rule of Civil Procedure 65(c). See also Ark. Code Ann. § 16-113-405(a)(1) (Repl. 2016). For these reasons, our decision in this case will likely have practical legal effects. Finally, even were we to ágree that a decision rendered on appeal would not affect the rights of the parties to this appeal, we conclude that this appeal would fall under an exception to the mootness doctrine. One of the recognized exceptions to the mootness doctrine involves issues that are capable of repetition but that evade review. Poland v. Poland, 2017 Ark. App. 178, 518 S.W.3d 98. Any appeal from a temporary order restraining an ^employee from working for a competitor would likely evade review upon expiration of the temporary order before the appeal could be heard by the appellate court. Furthermore, one of the agreements upon which the trial court based its temporary restraining order and preliminary injunction provides that a violation of the agreement could trigger a two-year remedy and hence, J.B. Hunt could refile its motion and receive another temporary restraining order for another year without review. Therefore, the trial court’s action would evade review and the aggrieved party would not receive the appellate review to which it is entitled. For these reasons, we deny J.B. Hunt’s motion to dismiss and reach the merits of Box’s appeal. The record shows that Box was employed by J.B. Hunt from 2000 until he resigned on October 27, 2016. From 2004 to 2011, Box was a regional operations manager in the intermodal division. From 2011 until his separation from employment on October 27, 2016, Box worked as a director of transportation in J.B. Hunt’s integrated capacity solutions division in Memphis, Tennessee. Box’s job as a director of transportation was a brokerage position working with customers in a sales capacity. After leaving his employment with J.B. Hunt, Box accepted a position with another transportation company, Hub Group, as a regional vice president of operations in the Memphis region. This position was in Hub Group’s intermodal division. On November 22, 2016, J.B. Hunt filed a complaint against Box for breach of contract related to the employment, alleging that by accepting employment with Hub | sGroup, Box had violated several agreements executed during his employment with J.B. Hunt. The first of these agreements was a Confidentiality Agreement signed by Box in 2004, which provided in pertinent part: 3. CONFIDENTIAL INFORMATION. Employee recognizes, acknowledges and agrees that- Company operates on a nationwide basis, and that, by ■reason of Employee’s employment with Company, Employee will acquire information concerning Company methods, processes, ■ operations, marketing programs, computer programs, future plans and customers, and other proprietary or otherwise sensitive information. This information (“Confidential Information”) is a valuable asset of Company and affects the1 successful operation of Company’s business. If known to Company’s suppliers, customers or competitors, such Confidential Information would give such parties a competitive advantage. 4. TRADE SECRETS. In general, a Company trade secret is information (including a formula, pattern, compilation, program, device, method, technique or process) that derives independent eco ■nomic value, actual or potential, from being kept secret. Furthermore, Employee recognizes, acknowledges and agrees that some Confidential Information may be trade secret protected by the Arkansas Trade Secrets Act, codified at Ark. Code Ann. § 4-75-601, et seq. 5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee agrees, as a condition of employment and in consideration for continued employment, as well as other consideration conferred on him/her by Company, that, except as necessary to perform Employee’s duties and responsibilities to Company, while employed, Employee will not discuss, disclose, describe, reproduce or use in any manner the Company’s Confidential Information. 6 OBLIGATIONS OF EMPLOYEE AFTER TERMINATION OF EMPLOYMENT. Employee recognizes, acknowledges and agrees that this provision shall survive the termination whether voluntary or involuntary of Employee’s employment. Employee agrees that this Confidentiality Agreement precludes him/her from discussing, disclosing, describing, reproducing or using in any manner the Company’s trade secrets after Employee’s employment with Company has ended for as long as the information is a trade secret. Employee agrees that this Confidentiality Agreement precludes Employee from discussing, disclosing, describing, reproducing or using in any manner the Company’s Confidential Information which is not a trade secret for a period of one (1) year following termination. | <¡7. REMEDIES. It is further understood that a breach of this Agreement shall entitle Company or Employee, in addition to other legal and equitable remedies available, to apply to any court of competent jurisdiction to enjoin any violation of this Agreement. Employee agrees to the entry of a Temporary Restraining Order or a Preliminary Injunction against Employee precluding violation of this provision pending a resolution of any dispute that may arise regarding this Agreement. Employee recognizes, acknowledges and agrees that if Employee’s knowledge and skills are inextricably connected to Company’s trade secrets and his/her subsequent employment poses a substantial risk that Company’s trade secrets will be discussed, disclosed, described, considered, reproduced or otherwise utilized, such inevitable disclosure will justify an injunction against Employee’s competitive employment. Box also signed a Noncompete and Non-solicit Agreement in 2013, which provides in pertinent part: 2. DEFINITIONS. As used herein. b. “Competing Services” are understood to be services, as an employee, officer, director, owner, consultant or otherwise: (i) rendered on behalf of a Competing Business that are the same as or substantially similar in. purpose or function to the services Employee supervised or provided to the Company in the preceding two years, or (ii) rendered in any position or capacity in which he/she may inevitably disclose, utilize or consider Confidential information gained through his/her employment with Company which would give a Competing Business, customer or other business an unfair competitive advantage. d. “Confidential Information” has the same meaning as it does in the Confidential Information and Proprietary Interests Agreement that Employ ee has also agreed to and that is ancillary to this Agreement — namely, an item of information or a compilation of information, in any form (tangible or intangible), related to Company’s business that the Company has not intentionally made public or authorized public disclosure of and that is not readily available to the public through proper means in the same form or compilation, inclusive of but not limited to trade secrets. |?4. NONCOMPETE. During employment with the Company and for a period of one (1) year thereafter, Employee will not, directly or indirectly, provide, supervise, or manage Competing Services in a Prohibited Territory without the advance written consent of the Company in order to help ensure that the Company’s trade secrets and other interests are adequately protected. Finally, Box signed three similar Restricted Stock Agreements in 2013, 2014, and 2015, which provide in pertinent part: 11. PROTECTIVE COVENANTS (a) Noncompete. During employment with the Company and for a period of two (2) years thereafter, regardless of which party ends the employment relationship or why, Recipient shall not directly or indirectly, for himself or herself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder, financer, member, owner, employee or otherwise, perform, or agree to perform, Conflicting Services for a Competing Business operating in the Restricted Area[.] “Competing Business” means Expeditors Int’l of Washington, Inc.; Lands-tar System, Inc.; Ryder System, Inc.; Werner Enterprises, Inc.; CH Robinson Worldwide, Inc.; Hub Group, Inc.; .... “Conflicting Services” are any services similar in nature, purpose, or function to the services that Recipient provided to the Company in the preceding two year period (or such lesser period as Recipient may have been employed), or the supervision or management of any such services. (d) Specific Performance and Injunction. A violation of this Agreement would cause not only actual and compen-sable damage, but also irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if Recipient violates or threatens to violate this Agreement, the Company shall be entitled to an order compelling specific performance, and temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. (Emphasis added.) | sin J.B. Hunt’s complaint, it generally alleged that Box’s employment with Hub Group was the same or substantially similar to his employment with J.B. Hunt, and that performing his responsibilities at Hub Group may result in Box disclosing, or inevitably disclosing, trade secrets or confidential information of J.B. Hunt that would afford Hub Group an unfair competitive advantage. J.B. Hunt requested an order permanently enjoining Box from disclosing any of J.B. Hunt’s confidential information and trade secrets, and temporarily enjoining him from employment with Hub Group. On November 23, 2016, which was one day after it filed its complaint, J.B. Hunt filed a motion for an injunction and tempo rary restraining order. In that motion, J.B. Hunt alleged that it had demonstrated a likelihood of success on the merits and that it would suffer irreparable harm in the absence of an injunction and restraining order. J.B. Hunt requested that Box be enjoined from disclosing confidential information and trade secrets, and be enjoined from employment with Hub Group. On February 2, 2017, the trial court held a hearing on J.B. Hunt’s motion for an injunction and temporary restraining order. J.B. Hunt presented two witnesses at the hearing, and Box testified on his own behalf. Brandon Taylor testified that he is a vice president of J.B. Hunt and has been employed there since 2011. Taylor stated that, during Box’s last two years of employment with J.B. Hunt, Box was in the integrated capacity solutions division, which involved sales. This division has also been referred to as the brokerage division. Taylor indicated that a portion of that division involved sales to intermodal customers. Taylor repeatedly referred to a J.B. Hunt “playbook,” to which Box was privy. However, on further questioning, | ¡/Taylor admitted that there is not a tangible “playbook”; rather, the “playbook” was essentially the accumulation of knowledge and experience gained while working at J.B. Hunt that could be transferred elsewhere. Taylor stated that the “playbook” was confidential and indicated that it was constantly changing. Taylor further testified that Hub Group is J.B. Hunt’s most significant competitor in the intermo-dal transportation market. James Nathan Smith testified that he works for J.B. Hunt and was the senior vice president of intermodal operations between 2010 and 2015. Smith stated that, during Box’s employment in the intermo-dal division between 2004 and 2011, Box gained knowledge of the company’s inter-modal business model, which was confidential. Smith surmised that Hub Group could benefit from the confidential information Box acquired while working in J.B. Hunt’s intermodal division. Smith acknowledged, however, that he had no evidence that Box had disclosed confidential information to any of the drivers at Hub Group and. had no reason to believe that Box would discuss this unspecified confidential information with any of those working under him. At the conclusion of its case, J.B. Hunt stated that it had specific confidential materials that had been disclosed to Box during his employment, which it contemplated introducing into evidence. However, J.B. Hunt elected not to introduce these materials, even under seal. J.B. Hunt’s explanation for not introducing the materials was that it anticipated Box l,0would truthfully testify that he did not remember any of it, and it was not going to refresh his memory. Box testified that, during his work for • J.B. Hunt between 2011 and 2016, he was responsible for all aspects of operation and ‘ business development within the brokerage division. Box stated that, in his employment with Hub Group, he is the regional vice president over the drayage piece of intermodal operations. Box indi cated that at Hub Group he has no interaction with the brokerage division, has no interaction with outside carriers, and is not dealing with customers. Box testified that there were no positions that he managed in his last two years at J.B. Hunt that were substantially similar to the employees or functions he manages at Hub Group. Box further stated that he was not aware of any of J.B. Hunt’s trade secrets, and that he had not disclosed in any manner any of J.B, Hunt’s confidential information. On February 14, 2017, the trial court entered an order granting J.B. Hunt’s motion for an injunction and a temporary restraining order. In the order, the trial court specifically addressed each of the three pertinent agreements: the 2004 Confidentiality Agreement, the 2013 Noncom-pete and Nonsolicit Agreement, and the 2015 Restricted Stock Agreement. Each of these agreements contained language that could be relevant in determining whether a temporary restraining order or preliminary injunction could be entered. The trial court made the following findings and conclusions of law: |nHere, this Court finds that Box presumptively and voluntarily agreed to allow JBH injunctive relief when he signed the October 26, 2004, “Employee Confidentiality Agreement” which states: “Employee agrees to the entry of a temporary restraining order or a preliminary injunction, against Employee ... if Employee’s knowledge and skills are inextricably connected to Company’s trade secrets and his subsequent employment poses a substantial risk that Company’s trade secrets .. disclosure will justify an injunction against Employee’s competitive employment.” Moreover, this Court finds that Box presumptively and voluntarily agreed that a violation of the October 28, 2013; October 28, 2014; and October 21, 2015 “Restrictive Stock Agreements” would result in “irreparable, harm” in that the above agreements state “a violation of this Agreement would cause not only actual and compensable damage, but also irreparable harm and continuing.injury to the Company, for which there would be no adequate remedy at law ... the Company shall be entitled to an order compelling specific performance, and temporary and permanent injunc-tive relief.” Furthermore, this Court finds that the above described “irreparable harm” .is immediate in that Hub Group, Inc; and its subsidiary Hub Trucking, Inc. are substantial competitors to JBH. The October 28, 2013; October 28, 2014; and the October 21, 2015, “Restrictive Stock Agreements” all list Hub Group, Inc. as a “competing business.” Also, Mr. Brandon Taylor, Vice President of Transportation to JBH, stated Hub Group, Inc., is a “significant competitor” in intermo-dal sales to JBH. Box also testified that some of Hub Group, Inc., customers are also JBH.customers, and Box would be in violation of the non-compete agreement if Box had contact with certain JBH customers in Memphis, Tennessee. Also, this Court finds that Box presumptively and voluntarily. agreed that Box’s. position as' Operations Manager and Director of Transportation while an employee at. JBH provided him with access'-to JBH’s confidential information. Box signed the October 26, 2004, “Employee Confidentiality Agreement” which states in part that “Employee ... acknowledges and agrees, that ... Employee will acquire information concerning Company methods, processes, operations, marketing programs, computer programs, future plans, and customers and other proprietary or otherwise sensitive information. This information ... is a valuable asset of Company and affects the successful operation of Company’s business. If known to Company’s ... competitors such confidential information would give such parties a competitive advantage.” Therefore, for the above-stated reasons this Court finds that there is no adequate remedy at law and that in the absence of an injunction or restraining order against Hub Group, Inc., and/or Hub Trucking, Inc., will result in irreparable and immediate harm to JBH by providing an unfair competitive advantage to Hub Group, Inc., and/or Hub Trucking, Inc. | ^Additionally, this Court finds that JBH has demonstrated a likelihood of success on its merits that Box is in breach of his covenant not to compete with JBH. That, although this Court has not made a determination whether JBH has a “protectable business interest” pursuant to Ark. Code Ann. § 14-75-101(b), this Court does find that JBH has presented sufficient evidence that demonstrates a likelihood of success that Box breached his covenant not to compete with JBH. Here, Box presumptively and voluntarily agreed that JBH has a “protectable business interest” when Box signed the October 26, 2004, “Employee Confidentiality Agreement” wherein Box acknowledged that information about JBH’s “method of operation, distribution and customers” was of a “proprietary nature” and that JBH’s “margins of profitability, strategic planning for the future and JBH’s “online reporting database” were “trade secrets.” Moreover, Box promoted himself in his resume that his job experience with JBH included that he was responsible for full profit and loss strategy; budgeting and forecasting, client relationship management, while Box also recognized and acknowledged this as “confidential information” in the October 26, 2004 “Employee Confidentiality Agreement.” (Emphasis added.) Based on these conclusion and findings, the trial court enjoined Box from disclosing confidential information and trade secrets and from employment with Hub Group through October 27, 2017. In this appeal, Box raises several arguments challenging the issuance of the injunction and temporary restraining order. As part of his argument, Box contends that the trial court erroneously relied on the recitals in the agreements, rather than any evidence presented by J.B. Hunt, and further that J.B. Hunt did not demonstrate a likelihood of success of proving Box breached any agreement. To address these arguments, we must examine the standards for issuing a preliminary injunction as well as the relevant law pertaining to noncompete agreements. The supreme court set forth the standard of review for preliminary injunctions in Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006): In determining whether to issue a preliminary injunction pursuant to Rule 65, the trial court' must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving | isparty has demonstrated a likelihood of success on the merits. This court reviews the grant of a preliminary injunction under an abuse-of-discretion standard. The standard of review is the same for the two essential components of a preliminary injunction: irreparable harm, and likelihood of success on the merits. There may be factual findings by a circuit court that lead to conclusions of irreparable harm and likelihood of success on the merits, and those findings shall not be set aside unless clearly erroneous. But a conclusion that irreparable harm will result or that the party requesting the injunction is likely to succeed on the merits is subject to review under an abuse-of-discretion standard. When an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the circuit court exceeded its discretion in granting the injunction. The sole question before the appellate court is whether the circuit court “departed from the rules and principles of equity in making the order,” and not whether the appellate court would have made the order. 365 Ark. at 121-22, 226 S.W.3d at 806-07 (internal citations omitted). The law pertaining to noncompete agreements is now codified at Arkansas Code Annotated section 4-75-101 (Supp. 2015), whieh became effective on July 22, 2015, pursuant to the enactment of Act 921 of 2015. However, in the present case the statutory law arguably applies only to the parties’ third restricted stock agreement executed in October 2015 after Act 921 became effective. The remaining four agreements predated the Act and are subject to common law rules, Arkansas Code Annotated section 4-75-101(a) provides: (a) A covenant not to compete agreement is enforceable if the agreement is ancillary to an employment relationship or part of an otherwise enforceable employment agreement or contract to the extent that: (1) The employer has a protectable business interest; and (2) The covenant not to compete agreement is limited with respect to time and scope in a manner that is not greater than necessary to defend the protectable business interest of the employer, |u(Emphasis added.) Subsection (b) of the above statute provides that the protectable business interest of the employer includes the employer’s trade secrets and confidential business information that is confidential, proprietary, and increases in value from not being known by a competitor. Here, however, the trial court expressly stated in its order that “this Court has not made a determination whether JB Hunt has a ‘protectable business interest’ pursuant to Arkansas Code Annotated § 4-75-101(b)[.]” Therefore, we need not address whether this statute is applicable to any of the agreements herein. Under common-law standards, we have held that in order for a noncompete agreement to be valid, the following three requirements must be met: (1) the cove-nantee must have a valid interest to protect; (2) the geographical restriction must not be overly broad; and (3) a reasonable time limit must be imposed. Burleigh v. Ctr. Point Contractors, Inc., 2015 Ark. App. 615, 474 S.W.3d 887. The test for reasonableness of contracts in restraint of trade is that the restraint imposed upon one party must not be greater than is reasonably necessary for the protection of the other and not so great as to injure a public interest. Id. Where a noncompete agreement grows out of an employment relationship, appellate courts have found an interest sufficient to warrant enforcement of the agreement only in those cases where the employer provided special training or made available trade secrets, confidential business information, or customer lists, and then only if it is found that the employee was able to use the information so obtained to gain an unfair competitive advantage; Id, However, it has also been held that an employee’s experience, knowledge, and skills cannot be erased' from one’s mind: “Our society is extremely mobile and our free economy is based upon competition; one who; has worked in a particular field cannot be [ ^compelled to erase from his mind all of the general skills, knowledge, and expertise acquired through his experience. Restraints cannot be lightly placed upon an employee’s right to compete in the area of his greatest worth.” Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 423, 994 S.W.2d 468, 475 (1999). In Burleigh, supra, we stated that covenants not to compete are not looked upon with favor by the law. In order to determine whether the trial court abused 'its discretion in finding that J.B. Hunt' demonstrated a likelihood of success on the merits, we' must examine each of the three relevant agreements as applied to the facts presented because each of the agreeménts contain differing language that may trigger a violation. We must also analyze the findings and conclusions made by the trial court in support of its decision to enter the injunction and temporary restraining order. I. The 2013 Noncompete and ' Nonsolicit Agreement We begin with the parties’ noncom-pete and nonsolicit agreement executed in 2013, which prohibited Box from providing competing services for a period of one year after his separation from J.B. Hunt. Under that agreement, “competing services” are understood to be services, as an employee “(i) rendered' on behalf of a competing .business that are the same or substantially similar in purpose or function to the services the employee supervised or provided to the company in the preceding two years', or (ii) rendered in any position or capacity in which he may inevitably disclose, utilize or consider confidential information gained through his employment with company which would give the competing business ... an unfair competitive advantage.” Hence, Box could have violated the 2013 noncompete agreement on two independent grounds. Box could have rendered services to Hub Group that were Imthe same or similar to those services provided to J.B, Hunt in the preceding two years; or Box could have disclosed, utilized, or considered J.B. Hunt’s confidential information while working for Hub Group that would have given Hub Group an unfair competitive advantage. Although the trial court concluded that J.B. Hunt had demonstrated a likelihood of success that Box had breached this non-compete agreement, the trial court made no comment on whether Box was performing “the same or substantially similar services” for Hub Group that he had been providing to J.B. Hunt for the preceding two years, which would be' essential for a violation of the first ground of-the “competing services” definition. Therefore, we need not discuss whether Box was performing the same or substantially similar services, and.the first ground fails as justification for the injunction. So, we turn to the second ground. Under the second ground of the definition, Box could have been performing violative competing services at Hub Group if he had actually used confidential information that resulted in an unfair advantage to Hub Group, or if the confidential information Box possessed was of such character that Box would inevitably use the information, giving Hub Group an unfair competitive advantage. The noncompete and nonsolicit agreement defines “confidential information” as “an item of information or a compilation of information, in any form (tangible or intangible), related to company’s business that the company has not intentionally made public or authorized public disclosure of and that is not readily available to the public through proper means in the same form or ■ compilation, inclusive of but not limited to trade secrets.” In the trial court’s order, it is clear that the court did not find or conclude there was a likelihood that Box had actually |17used confidential information to benefit Hub Group. Similarly, the trial court did not specifically , conclude that the confidential information possessed by Box was of such character that Box would “inevitably use” the information. Since, however, the court concluded there was a violation, we are left to infer that the court concluded that the confidential information possessed by Box was of such character that Box. may inevitably disclose the information to Hub Group, giving Hub Group a competitive advantage. We conclude that the trial court erred in finding that J.B. Hunt established a likelihood of success that Box had violated the 2013 noncompete and nonsolicit agreement. A party seeking a preliminary injunction bears the burden to prove a reasonable probability of success on the merits. Muntaqim v. Hobbs, 2017 Ark. 97, 514 S.W.3d 464. Our supreme court has further stated that the court requires proof of facts establishing that a party is entitled to injunctive relief. See Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). In this case, there was testimony indicating that any information obtained by Box while working for J.B. Hunt in the intermodal division between 2004 and 2011 would be dated and less useful due to changed conditions. Moreover, J.B. Hunt produced no evidence of any specific confidential information that Box had obtained during, his employment. And there was an absence of any evidence that any confidential information would be inevitably disclosed by Box or would give Hub Group an unfair advantage. J.B. Hunt’s witnesses merely testified in conclusory fashion that unspecified information obtained by Box during his employment with J.B. Hunt could be used in h’is employment with Hub Group; this was not sufficient to demonstrate a reasonable probability that Box violated the agreement. See, e.g., Echezona v. City of New York, 125 18F.3d 843 (2d Cir. 1997) (holding that, in seeking a preliminary injunction, conclusory allegations are insufficient to establish a likelihood of success on the merits). As such, we conclude that the preliminary injunction cannot be upheld based on the provisions of the 2013 non-compete and nonsolicit agreement as applied to the facts. II. Restricted Stock Agreements We next examine the restricted stock agreement executed by the parties in 2013, 2014, and 2015. Box vested in 40 stock options each year. The restricted stock agreement provides: 11. Protective Covenants a. Noncompete: During employment with the Company and for a period of two years thereafter regardless of which party ends the employment relationship or why Recipient shall not directly or indirectly ... perform, or agree to perform, Conflicting Services for a Competing Business- operating in the Restricted Area[.] “Conflicting Services” are any services similar in nature, purpose or function to the services that Recipient provided to the Company in the preceding two year period ... or the supervision or management of any such services. (Emphasis added.) Because Box agreed not to provide to a competing business services similar in nature, purpose, or function to the services he provided to J.B, Hunt during the preceding two-year period, the issue here is whether the services he performed at Hub Group met that criteria. However, in the trial court’s order, it does not discuss whether Box performed services at Hub Group that were similar in nature, purpose, or function to those he had performed- for J.B. Hunt over the preceding two years. Instead, relying on a separate provision of the restricted stock agreement, the trial court found: _J_iS[T]his Court finds that Box presumptively and voluntarily agreed that a violation of the ... “Restrictive Stock Agreements” would result in “irreparable harm” in that the above agreements state “a violation of this Agreement would cause not only actual and compen-sable damage, but also irreparable harm and continuing injury to the Company, for which there would be no adequate remedy at law ... the Company shall be entitled to an order compelling specific performance, and temporary and permanent injunctive relief.” It is clear to this court that the trial court did not find the necessary facts to trigger the noncompete clause in the restricted stock agreement. The trial court here and in other parts of its order used the phrase “presumptively and voluntarily” to essentially find that, because Box voluntarily signed the agreements, J.B. Hunt is presumptively entitled to injunctive relief regardless of the facts. However, by signing the restricted stock agreement, Box did not agree that J.B. Hunt would automatically be entitled to injunctive relief; he agreed that it would be entitled to injunctive relief only if Box committed a violation of the agreement. This necessarily involves an inquiry into whether Box likely violated the agreement based on the evidence presented. Because the trial court made no findings on that issue, we conclude that it erroneously awarded injunc-tive relief based on the restricted stock agreement. ; III. 200j, Employee Confidentiality Agreement Finally, we address the trial court’s reliance on the 2004 employee confidentiality agreement. That agreement provides: 6. OBLIGATIONS OF EMPLOYEE AFTER TERMINATION OF EMPLOYMENT. Employee recognizes, acknowledges and agrees that this provision shall survive the termination whether voluntary or involuntary of Employee’s employment. Employee agrees that this Confidentiality Agreement precludes him/her from discussing, disclosing, describing, reproducing or using in any manner the Company’s trade secrets after Employee’s employment with Company has ended for as long as the information is a trade secret. Employee agrees that this Confidentiality Agreement precludes Employee from discussing, disclosing, [^describing, reproducing or using in any manner the Company’s Confidential Information which is not a trade secret for a period of one (1) year following termination. 7. REMEDIES, If is further understood that a breach of this Agreement shall entitle Company or Employee, in addition to other legal and equitable remedies available, to apply to any court of competent jurisdiction to enjoin any violation of this Agreement. Employee agrees to the entry of a Temporary Restraining Order or a Preliminary Injunction against Employee precluding violation of this provision pending a resolution of any dispute that may arise regarding this Agreement. Employee recognizes,. acknowledges and agrees that if Employee’s knowledge and skills are inextricably connected to Company’s trade secrets and his/her subsequent employment poses a substantial risk that Company’s trade secrets will be discussed disclosed, described, considered, reproduced or otherwise utilized, such inevitable disclosure will justify an injunction against Employee’s competitive employment. Under paragraph six above, there are two independent sources of protected material, i.e., confidential information and trade secrets. A violation of either source triggers different relief. If information possessed by Box is a trade secret, Box is precluded from discussing, disclosing, considering, reproducing, or otherwise utilizing the information as long as it remains a trade secret. If information possessed by Box is not a trade secret but is other confidential information, paragraph six provides that Box may not disclose the confidential information for a period of one year. Paragraph seven of the agreement describes the differing remedies for trade-secret violations and confidential-information violations. Paragraph seven provides that if Box’s knowledge and skills are inextricably connected to the company’s trade secrets, and his subsequent employment poses a substantial risk that the company’s trade secrets will be disclosed, such inevitable disclosure will justify an injunction against Box’s competitive employment. However, paragraph seven does not provide injunctive relief against Box’s employment with Hub Group for a violation of the confidential information. Therefore, the threshold inquiry into whether Box violated the 2004 Confidentiality 121Agreement to the extent necessary to justify being enjoined from employment by Hub Group is to determine whether Box possessed confidential information or trade secrets. The trial court made the following findings and conclusions with respect to the employee confidentiality agreement: Here, this Court finds that Box presumptively and voluntarily agreed to allow JBH injunctive relief when he signed the October 26, 2004, “Employee Confidentiality Agreement” which states: “Employee agrees to the entry of a temporary restraining order or a preliminary injunction against Employee ... if Employee’s knowledge and skills are inextricably connected to Company’s trade secrets and his subsequent employment poses a substantial risk that Company’s trade secrets ... disclosure will justify an injunction against Employee’s competitive employment.” Also, this Court finds that Box presumptively and voluntarily agreed that Box’s position as Operations Manager and Director of Transportation while an employee at JBH provided him with access to JBH’s confidential information. Box signed the October 26, 2004, “Employee Confidentiality Agreement” which states in part that “Employee ... acknowledges and agrees that ... Employee will acquire information concerning Company methods, processes, operations, marketing programs, computer programs, future plans, and customers and other proprietary or otherwise sensitive information. This information ... is a valuable asset of Company and affects the successful operation of Company’s business. If known to Company’s ... competitors such confidential information would give such parties a competitive advantage.” (Emphasis added.) It is clear that the trial court did not mention trade secrets in its findings and conclusions to explain Box’s violation of the 2004 Confidentiality Agreement. In fact, the language used by the trial court, “information concerning Company methods, processes, operations, marketing programs,” comes directly from the agreement’s definition of “Confidential Information.” Pursuant to paragraph seven of the employee confidentiality agreement, J.B. Hunt could only enjoin Box’s competitive employment with Hub Group if Box possessed strode' secrets and his subsequent employment posed a substantial risk that the trade secrets would be disclosed. Paragraph seven does not prohibit. Box from competitive employment with Hub.Group for possessing confidential information. Here, there was no finding or conclusion by the trial court.that Box possessed or likely possessed trade secrets that would justify an injunction against competitive employment. . . Furthermore, there was an absence of evidence to support the injunction as it related to confidential information under the provisions of the confidentiality agreement. Paragraph six provides that the- employee is precluded from disclosing in any manner the company’s confidential information which is not a trade secret for one year following termination, and paragraph seven provides that a breach of the agreement shall entitle the company to apply to enjoin any violation of the agreement. The trial court’s order makes no specific finding that Box had violated the agreement by disclosing confidential information to Hub Group, nor would the testimony support such a finding. In this case J.B. Hunt’s witnesses could not say whether Box had disclosed confidential information, and Box testified that he had not disclosed in any manner any of J.B. Hunt’s confidential information. Therefore, the trial court’s conclusion that J.B. Hunt would likely succeed on the merits pursuant to the confidentiality agreement was erroneous. Based on the foregoing, we hold that the trial court abused its discretion in granting J.B. Hunt’s motion for an injunction and temporary restraining order because J.B. Hunt failed to demonstrate a likelihood of success on the merits, and the trial court made |minsufficient findings and conclusions to support its order. Because we reverse the order based on these grounds, we need not address the remaining points raised by Box on appeal. Reversed and remanded. Gruber, C.J., and Murphy, J., agree. . The interlocutory order is appealable pursuant to Arkansas Rule of Civil Procedure - Civil 2(a)(6). . Intermodal is an industry term referring to two or more modes of transportation in conveying goods. . We acknowledge that this is a brief synopsis of the testimony of Brandon Taylor and James Nathan Smith. However, because the trial court did not make a finding that Box was performing at Hub Group the same or sub- ' stantially similar services he had performed at J.B. Hunt, it is unnecessary to recite additional testimony of Taylor and Smith regarding the details of Box’s job responsibilities, . Drayage is an industry term describing the transport of goods over a short distance. Here, it refers to transporting containers from a railyard to a warehouse or similar destination. . The 2004 Confidentiality Agreement, the 2013 Noncompete and Nonsolicit Agreement, and the 2013 and 2014 Restricted Stock Agreements. . ' We observe that, under Box’s last point on appeal, he contends that the trial court made improper and premature rulings in anticipation of a jury trial. The trial court’s order granting the injunction provided that all evi- ■ dence admitted at the temporary hearing is admissible at trial, and that the evidence shall become part of the trial record and need not be repeated at trial; Although we reverse the order granting the injunction,- we note that this aspect of the order was consistent with the provisions contained in Arkansas Rule of .Civil Procedure 65(a)(2), Therefore, the evidence received at the temporary hearing should be part of the record if there is a jury trial held on Box’s complaint following our remand. Box has also challenged the trial court’s award of attorney’s fees, and because we are reversing the interlocutory order on appeal, the award of attorney.’s fees was premature and is reversed as well.

BART F. VIRDEN, Judge liThe Faulkner County Circuit Court revoked appellant James Geeslin’s suspended sentence upon finding that he had violated the conditions of his suspension by possessing a firearm. He was sentenced to twenty years’ imprisonment. Geeslin raises two arguments on appeal: (1) the trial court had no authority to revoke his suspended sentence because there was no proof that he had received statutory notice of the conditions, and (2) the trial court should have stayed the revocation proceedings until after the adjudication of the related federal gun charges. We affirm. I. Procedural History On February 2, 2010, Geeslin pleaded guilty to six felonies, including aggravated residential burglary, terroristic act, possession of a firearm by a felon, and three counts of aggravated assault. In a judgment-and-commitment order dated February 2, 2010, Geeslin was sentenced to a total of twenty years in the Arkansas Department of Correction, and he |greceived twenty years’ suspended imposition of sentence (SIS) related to the possession-of-a-firearm- conviction. The record contains a document entitled “Conditions of Suspension,” which is dated February 2,2010, and is signed by both- Geeslin and the circuit judge. On July 7, 2010, the judgment-and-commitment order was amended to allow Geeslin more jail-time credit. The order was amended again on May 6, 2015. A different judgment-and-commitment-order form was used; the order contained minor changes; and a box was marked “no” next to whether “conditions of disposition or probation are attached.” Geeslin was released from prison in June 2015. In January 2016, he was arrested by the North Little Rock Police Department and later charged with being a felon in possession of a firearm. On February 9, 2016, the State filed a petition to revoke, alleging that Geeslin had violated the conditions of his suspension by “re-ceiv[ing] new charges.” On May 10, 2016, the United States District Court of the Eastern District of Arkansas indicted Geeslin for possessing firearms and ammunition. Following a revocation hearing on July 15, 2016, a judgment-and-commitment order was entered on July 19, 2016, revoking Geeslin’s SIS and sentencing him to twenty years’ imprisonment for possessing a firearm. II. Revocation Hearing At the hearing, Geeslin testified that after he had entered his plea on February 2, 2010, he was immediately transported to the Arkansas Department of Correction. He claimed that he had not seen .a probation officer or any other officer of the court before being transported to prison and that no one had visited him in prison to review the conditions of his suspension. Geeslin admitted having signed the “Conditions of Suspension,” but- he insisted that he had not received a copy of those conditions. He | ¡¡acknowledged having received all of the other paperwork “but not [his] suspended imposition of sentence paperwork.” He testified that he was unaware of the amended orders. Deputy Don Fulmer with the Faulkner County Sheriffs Office testified- that he started working as a bailiff part time in 2009 and full time in 2012 for Judge Claw-son and Judge Reynolds. He testified that, although he had no personal recollection of having served Geeslin with a copy of the conditions of suspension, ,([t]hey either get a copy in court of their judgment with all their paperwork when they plead guilty or they’re given a copy at the jail. That’s given to them in every case.” The trial court concluded that Geeslin had received adequate notice of the written conditions of his suspension at the time he entered his plea, as reflected by his signature on the written conditions. The trial court then proceeded with testimony related to Geeslin’s arrest on January 1, 2016. Although Geeslin, does not appear to challenge the sufficiency of the evidence with respect to his revocation, the following is a summary of the testimony regarding the new felon-in-possession-of-a-firearm charge. •Joshua Forney, a patrolman with the North Little Rock Police Department, was dispatched to a residence, based on an anonymous complaint about a possible breaking or entering. He saw Geeslin standing next to the bed of a red Ford truck that had been backed into a driveway, and a pump-action shotgun was in plain view on the front seat of the truck. During a patdown of Geeslin’s person, For-ney found a .25-caliber handgun with a full magazine in Geeslin’s “right rear pocket.” In a front pocket of Geeslin’s pants,. For-ney found 'another full magazine, a baggie containing ammunition for the handgun, and six shotgun shells. Forney said that he did not recall Geeslin’s having worn a jacket that night and did |4not collect any jacket as evidence. Although the truck was not registered to Geeslin, Geeslin claimed that it belonged to him. Geeslin’s brother, Justin Geeslin, testified that he and his brother had come from Conway to gather their father’s belongings at a residence a few blocks away from the residence where they were staying the night with friends. Justin said.that he-had driven the red Ford truck, which belonged to him, and that his brother had driven a white Chevrolet truck. Justin said that the shotgun belonged to their father and that he (Justin) had-taken it from his father’s residence and placed it under the front seat of the red truck. Justin further claimed that he had worn a green Carhartt jacket earlier that night and that he had placed in the jacket’s pockets his mother’s .25-caliber handgun and some shotgun shells from his father’s residence. According to Justin, although his brother had his own jacket, for some unknown reason, Geeslin was wearing his (Justin’s) jacket at the time of his arrest that night. Brandi Wallace, Geeslin’s girlfriend, testified that she did not see Geeslin in possession of any firearms or ammunition, and she denied that Geeslin had worn a green Car-hartt jacket that night. III. Discussion A. Sufficiency of the Evidence To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of the probation or suspension by a preponderance of the evidence. Johnson v. State, 2014 Ark. App. 606, 447 S.W.3d 143. On appellate review, the trial court’s findings will be upheld unless they are clearly against the preponderance of. the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal | ^conviction may be sufficient. for revocation of probation or suspension. Id. Thus, the burden on-the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial court’s superior position. Id. Geeslin states that he “understands the unlikely success of reversing a revocation on a factual argument based on the standard of review.” Geeslin states that, at most, he was in the vicinity of two firearms but was not in actual possession or control of them. He maintains that he was unaware of the presence of the firearms and that his proximity to them was accidental. Even if Geeslin did not possess or control the shotgun, there was ample evidence that Geeslin was nevertheless in possession of the handgun and ammunition for both the handgun and the shotgun. According to Forney, he found the handgun and ammunition in the front and back pockets of Geeslin’s pants. The trial court was not required to believe Justin’s account, especially given the testimony from Forney that he did not recall Geeslin’s having worn a green Carhartt jacket and from Wallace, who flatly denied that Gees-lin had worn that jacket. To the extent that there is a challenge to the sufficiency of the evidence, we cannot say that the trial court’s decision to revoke Geeslin’s SIS was clearly against the preponderance of the evidence. B. Notice of Conditions of Suspension Arkansas Code Annotated section 5-4-303(g) (Supp. 2009) (currently codified at 5-4-303(e)(2) (Supp. 2015)) provides that, if the trial court suspends imposition of sentence, the court shall give the defendant a written statement ■ explicitly setting forth the conditions | r,under which he or she is being released. As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Geeslin argues that he did not receive the required statutory notice of the conditions of his SIS in 2010. Geeslin maintains that, although he signed a document entitled “Conditions of Suspension,” there was no indication that he had been provided with a copy of the document — his signature proves only that the document had been shown to him. He contends that he also did not receive the conditions when the trial court twice amended the sentencing order. In fact, he contends that the second amended order “admits” that he did not receive notice because it .indicates that the conditions were not attached to the order. He asserts that those amended orders superseded the original order and that it was incumbent on the State to serve him with notice of the amended orders and with the terms and conditions applicable to those orders. The State must prove by a preponderance of the evidence that Geeslin received the statutorily required written notice of the conditions of his suspended sentence. See, e.g., Lambert v. State, 2013 Ark. App. 64, 426 S.W.3d 478. In Berry v. State, 2010 Ark. App. 217, 2010 WL 724318, this court held that the appellant’s signature on the documents listing the conditions was sufficient to support the trial court’s determination that the appellant knew, understood, and |7consented to the conditions. Here, Geeslin does not assert that he was unaware of the conditions but only that he did not get a copy of them. Geeslin relies on the holdings in Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980) (“[Cjourts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence.”); Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996) (reversing and remanding a revocation where the trial court had acknowledged that “there was no evidence and nothing in the file to indicate that appellant received any written conditions”); and Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983) (reversing a revocation where the trial court relied on an implied condition of suspension; the State conceded that the appellant had only orally been told that his suspended sentence was conditioned on his good behavior, and the appellant argued on appeal that there was no proof that he had any knowledge of the conditions of his suspension). Those cases are distinguishable in that they did not involve conditions that had been expressly communicated in writing. Here, Geeslin’s signature appears on the conditions of suspension that were expressly communicated in writing. In Fleming v. State, 2013 Ark. App. 551, 2013 WL 5509150, this court recognized that a defendant has a right to a written statement explicitly setting forth the conditions of his or her release, but stated, “[W]hen the ‘twin purposes’ of the notice requirement — assisting the defendant to lead a law-abiding life and preventing confusion on the defendant’s part — are otherwise met, the record need not reflect that defendant actually received written notice.” Fleming, 2013 Ark. App. 551, at 3. | «Here, the document entitled “Conditions of Suspension” has been signed by both the circuit judge and Geeslin, and it is dated February 2, 2010, the same day that Geeslin entered his plea. Geeslin acknowledged having received all of the other paperwork associated with his plea. Further, Geeslin does not contend that he was not aware of the conditions of his suspended sentence. We hold that this was sufficient evidence that Geeslin received conditions of suspension that were expressly communicated in writing. In any event, Deputy Fulmer testified that, in every case, a person who has been placed on probation or suspension gets a copy of his or her paperwork when he or she pleads guilty. Although Deputy Ful-mer did not have any personal recollection of having handed the paperwork to Gees-lin, he had personal knowledge of the standard practices of the Faulkner County Sheriffs Office. In Patterson v. State, 99 Ark. App. 136-A, 257 S.W.3d 921 (2007), a probation officer testified about her routine practice of informing probationers what is expected of them. Patterson argued that the probation officer’s “opinion that [appellant] received written notice because that’s ‘usually’ what happens, is nothing but sheer speculation” because she did not have personal knowledge of the matter. This court disagreed, stating, “Not only did appellant not object to her testimony on that basis at the hearing, it is clear that in discussing the regular business practices of the Lincoln County probation office, she did have personal knowledge of those practices as a representative of that office.” Patterson, 99 Ark. App. at 136-D, 257 S.W.3d at 923. Geeslin asserts that “the record is void of any documentary proof’ that the conditions were served on him and that there is “no documentary evidence” that supports that he was given a copy of the conditions to review and retain. The Patterson court pointed out that |flthere is no requirement that the defendant sign a written acknowledgment when he receives a written statement of conditions or that one be introduced at the revocation hearing. See also Lambert, supra (recognizing that the State does not have to introduce into evidence a piece of paper, which the defendant has signed or initialed, that acknowledges he has, in fact, received written notice of the probationary terms and conditions). Here, Geeslin did not "object to Deputy Fulmer’s testimony and did not refute that testimony. The trial court'could have believed Deputy Fulmer’s testimony about standard practices and could have -disbelieved Geeslin’s claim that he did not receive a copy of the conditions of suspension given that Geeslin’s signature was on the conditions of suspension and he admitted having received a copy 'of all of the other paperwork. We hold that Geeslin had adequate notice of the conditions of his suspension. While Geeslin claims that he was not served with conditions each time the judgment and commitment order was amended, there is no indication from the record that additional conditions had been imposed. The State alleged that Geeslin violated one or more of the conditions he had signed in 2010: he received a new charge related to his commission of possession of a firearm by a felon. See Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001). The' conditions of suspension included a provision that Geeslin “shall not purchase, own, or have firearms or any deadly/dangerous weapons in his possession at any time.” Under these circumstances, we cannot say that the trial court’s decision was clearly against the preponderance of the evidence. C. Staying Revocation Proceedings ImNext, Geeslin argues that, because he had pending federal gun charges stemming from the same facts and circumstances forming the basis for the revocation proceedings in state court, the revocation proceedings should have been stayed. He contends that, if he were to be acquitted of the'federal gun charges, it would be “powerful defense evidence” in the revocation proceedings. Arkansas Code Annotated section 6-4-309(d) (Repl. 2006), which was in effect when the underlying offenses were committed, provides that the trial court may revoke the suspension or probation of a defendant at any time prior to the expiration of the period of his suspension or probation. See Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992) (noting that the supreme court has consistently upheld a trial court’s decision to revoke probation on the-basis of a subsequent crime prior to conviction for that crime). The trial court revoked Geeslin’s SIS long before the period of suspension had expired, Also, the condition of suspension that Geeslin was charged with violating provides that he shall not have firearms in his possession at any time; Geeslin had a loaded firearm in his back pocket. There was no requirement that Geeslin be convicted of being a felon in possession of a firearm before the trial court could revoke his SIS. | , 1 Affirmed. Glover and Murphy, JJ., agree. , Citing a 1999 unpublished opinion, Geeslin argues that the bailiffs testimony about standard practices is insufficient to establish that he received notice of the conditions. Arkansas Supreme Court Rule 5-2(c) (2016) provides that opinions of the Supreme Court and Court of Appeals issued before July 1, 2009, and not designated for publication shall not be cited, quoted, or referred to by any court pr in any argument, brief, or other materials presented to any court. . Geeslin argues that Justice George Rose Smith in Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972), cited with approval the American Bar Association’s "Standards Relating to Probation,” which provided that "a revocation proceeding based solely upon the commission of another crime ordinarily should not be initiated prior to the disposition of that charge.” Geeslin acknowledges, however, that the ABA Standards had not been adopted in Arkansas at that time, citing Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977).

ROBIN F. WYNNE, Associate Justice li Pursuant to Arkansas Supreme Court Rule 6-8, we accepted two certified questions of law from the United States District Court for the Eastern District of Arkansas, Western Division. Petitioner Air Evac EMS, Inc. (Air Evac), has filed suit against respondent USAble Mutual Insurance Company d/b/a Arkansas Blue Cross Blue Shield (Blue Cross) alleging, among other things, violations of the Arkansas Deceptive Trade Practices Act (ADTPA). Blue Cross has filed a motion to dismiss, alleging that it should receive the benefit of the so-called safe-harbor provision of the ADTPA. Because this court has never expressly interpreted the safe-harbor provision of the ADTPA, we are now presented with the following questions of law: 1. Are the rulings in DePriest v. AstraZeneca Pharmaceuticals, L.P., 2009 Ark. 547, 351 S.W.3d 168, and Arloe Designs, LLC v. Arkansas Capital Corp., 2014 Ark. 21, 431 S.W.3d 277, in conflict with one another, and if so, how should that conflict be resolved? 1¾2. Does the safe harbor provision of the Arkansas Deceptive Trade Practices Act, which exempts “[ajctions or transactions permitted under laws administered by” state and federal regulators, Ark, Code Ann. § 4-88-101(3), apply to actions or transactions prohibited under laws administered by state and federal regulators? At issue in both certified questions is the proper interpretation of the safe-harbor provision of the ADTPA, and we exercise our discretion to reformulate the questions and answer the following: Should the ADTPA’s safe-harbor provision, Ark, Code Ann. § 4-88-101(3), be applied according to the specific-conduct rule or the general-activity rule? As explained in this opinion, we hold that Arkansas follows the specific-conduct rule. The ADTPA prohibits a variety of listed practices, including “[k]nowingly making a false representation as to the characteristics ... [or] benefits ... of goods or services,” “[k]nowingly taking advantage of a consumer who is reasonably unable to protect his or her interest because of ... [ijnability to understand the language of the agreement,” and a catchall provision prohibiting “any other unconscionable, false, or deceptive act or practice in business, commerce, or trade.” Ark. Code Ann. § 4-88-107(a)(l), (a)(8), (a)(10) (Repl. 2011). Here, the federal district court’s order outlines Air Evac’s ADTPA claims as follows: Air Evac alleges Blue Cross has unlawful business practices in violation of the ADTPA in two ways. First, Blue Cross’s refusal to contract with ambulance providers violates Arkansas insurance regulations requiring out-of-network costs to have no greater cost than in-network costs when in-network provider list is inadequate. Second, Blue Cross is misleading its customers by informing them they could incur substantial out-of-pocket expenses by using out-of-network providers, except in circumstances involving “Emergency or Imperative Services” provided by out-of-network providers, which in those cases, the out-of-network services would be subject to in-network benefits. Air Evac alleges this creates the false impression that plan members would not suffer the significant expenses associated- with out-of-l ¡¡network care in emergency situations because Blue Cross does not disclose that there is no in-network benefit for emergency ambulance service, and the extent of its advertised benefit for that service is subject to a potentially illegally low cap. Consequently, insureds never realize the benefit of the emergency exception and when they receive a bill for the out-of-network air transport service that potentially saved their life, Blue Cross’s only contribution is ' an unlawfully capped reimbursement. The parties agree that, at the relevant time, the safe-harbor provision provided that the ADTPA does not apply to [ajctions or transactions permitted under laws administered by the Insurance Commissioner, the Securities Commissioner, the State Highway Commission, the Bank Commissioner, or other regulatory body or officer acting under statutory authority of this state or the United States, unless a director of these divisions specifically requests the Attorney General to implement the powers of this ■■chapter. Ark. Code Ann. § 4-88-101(3) (Repl. 2011). Generally, there are two different approaches to the safe-harbor provisions found in deceptive-trade-practices statutes: (1) the majority “specific conduct” rule, which looks to whether state law permits or prohibits the conduct at issue and only exempts permitted conduct from DTPA claims; and (2) the minority “general activity” rule, which looks to whether a state agency regulates the conduct, in which case a regulated party enjoys a full exemption from the DTPA. Nathan Price Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299, 300 (2014). In a widely cited opinion, the Tennessee Court of Appeals wrote the following when it addressed Tennessee’s safe-harbor provision: The purpose of the exemption is to insure that a business is not subjected to a lawsuit under the Act when it does something required by law, or does something that would otherwise be a violation of the Act, but which is allowed under other statutes or regulations. It is intended to avoid conflict between laws, not to exclude from the Act’s coverage every activity that is authorized or regulated by another statute or agency. Virtually every activity is regulated to some degree. The defendant’s [interpretation of the exemption would deprive consumers of a meaningful remedy in many situations. Skinner v. Steele, 730 S.W.2d 335, 337 (Tenn. Ct. App. 1987) (rejecting contention that acts or transactions involving insurance were expressly exempted from the state’s consumer protection act, which exempted acts or transactions “required or specifically authorized” by regulation). We keep this purpose — avoiding a conflict between laws — in mind in answering the question presented. The basic rule of statutory construction is to give effect to the intent of the legislature. Holbrook v. Healthport, Inc., 2014 Ark. 146, at 5, 432 S.W.3d 593, 596. Where the language of a statute is plain'and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Id. The word “permit” is defined as follows: 1. To consent to formally; to allow (something) to happen, esp. by an official ruling, decision, or law < permit the in spection to be carried out>. 2. To give opportunity for; to make (something) happen clax security permitted the escape>. 3. To allow or admit of- <if the law so permits >. Black’s Law Dictionary 1322 (10th ed. 2014). Air Evac contends that for the safe harbor to apply, an action or transaction must be “permitted”—not merely subject to regulation, and certainly not prohibited. This invokes a definition of “permit” in the sense of actively or formally allowing something to happen. Blue Cross, on the other hand, points to the possibility of “permit” meaning to passively allow something to happen, and it argues that this is characteristic of the general-activity rule (i.e., the entity is subject to regulation but the regulator may hot have addressed the action at issue). Thus, the word “permit” could support either interpretation. We turn now to the ADTPA as a whole. Dickinson v. SunTrust Nat’l Mortg. Inc., 2014 Ark. 513, at 4, 451 S.W.3d 576, 579 (“When a statute is ambig uous, this court must interpret it according to legislative intent, and our review becomes an examination of the whole act.”). The preamble to the ADTPA’s enacting legislation reveals that the legislature’s remedial purpose was “to protect the interests of both the consumer public and the legitimate business community[.]” State ex rel. Bryant v. R & A Inv. Co., 336 Ark. 289, 295, 985 S.W.2d 299, 302 (1999). Remedial legislation should be liberally con strued. Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 778, 552 S.W.2d 4, 9 (1977). The general-activity rule would un dermine the ADTPA’s purpose by exempting all conduct subject to regulation by a state or federal regulator; virtually all conduct is regulated in some way, and the general-activity rule would essentially read the ADTPA out of existence. Viewing the ADTPA as a whole, we believe that the specific-conduct rule is consistent with the broad remedial purposes of the act. Finally, in Act 986 of 2017, the General Assembly amended the safe-harbor provision to add the word- “specifically” ■before the word “permitted.” This clarification by the General Assembly followed the federal courts’ interpretation of our decision in Arloe Designs, LLC v. Arkansas Capital Corp., 2014 Ark. 21, 431 S.W.3d 277, as indicating that Arkansas followed the general-activity rule. See Gabriele v. ConAgra Foods, Inc., No. 5:14-CV-05183, 2015 WL 8904386, at *7 (W.D. Ark; June 25, 2015) (citing Arloe and stating: that “[cjonsistent with the plain language Of the ADTPA, it appears that the Arkansas Supreme Court recognizes and applies the so-called general-activity rule. In other words, the safe-harbor provision exempts regulated conduct by regulated actors regardless of whether | (¡substantive state law explicitly authorizes or prohibits the precise conduct at issue.”); Tuohey v. Chenal Healthcare, LLC, 173 F.Supp.3d 804, 809 (E.D. Ark. 2016) (“[T]he Arkansas Supreme Court did not make an inquiry into the specific conduct of the defendants in Arloe.... The safe-harbor provision precludes actions pursuant to the ADTPA against regulated entities engaged in regulated conduct.”). The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees it can amend the statutes. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 281, 984 S.W.2d 1, 5 (1998). Here, the addition of the word “specifically” is a clear indication that the General Assembly intended Arkansas to follow the majority specific-conduct rule. Based on our rules of statutory construction, we hold that the ADTPA’s safe-harbor provision should be applied according to the specific-conduct rule, meaning that it precludes claims only when the actions or transactions at issue have been specifically permitted or authorized under laws administered by a state or federal regulatory body or officer. . Certified questions reformulated and answered. Special Justice Robert M. Veach .joins in this opinion. Baker, J., dissents. Kemp, C.J., not participating. . We decline Blue Cross’s invitation to hold that the certified questions need not be answered because its conduct satisfies even the narrowest reading of the safe-harbor provision.

LARRY D. VAUGHT, Judge 11 This case involves an assessment of 2014 ad valorem taxes on properties of Fayetteville Express Pipeline, LLC (FEP or appellant), by the Tax Division of the Arkansas Public Service Commission (Commission). FEP filed a formal petition asking the Commission for review. An administrative law judge (ALJ), sitting by designation of the Commission, conducted a public hearing and affirmed the Tax Division’s assessment. The assessment was reaffirmed by the Commission. FEP subsequently appealed to the Pulaski County Circuit Court. The circuit court found that the Commission’s decision to affirm the assessment of FEP’s property was supported by substantial evidence in the record. On appeal, FEP argues six points. We affirm. I. Background FEP owns a 185-mile natural gas pipeline that originates in Conway County, Arkansas, and terminates by connecting with another pipeline in Mississippi. FEP entered into long-term contracts with four gas producers in the Fayetteville Shale region reserving 92.5 percent of the •|2pipeline’s capacity. These contracts expire in 2020 and 2021 and pay FEP roughly $55 million a year regardless of the amount of gas carried through the pipeline. The pipeline went into operation in 2012. On March 27, 2014, FEP filed its 2014 ad valorem tax report for the year ending December 31, 2013. Based on the information provided by FEP, the Tax Division prepared FEP’s 2014 ad valorem tax assessment, showing a total unit value of $886,387,572, resulting in an Arkansas-assessed value of $149,580,000. FEP filed a petition for review with the Commission challenging the assessment. In its petition, FEP argued that the Tax Division had failed to consider certain conditions, such as that the market for natural gas had substantially declined, causing FEP’s pipeline to be underutilized. FEP also argued that the Tax Division had failed to consider economic obsolescence. FEP noted that the Federal Energy Regulatory Authority (FERC) had allowed some 770 miles of mainline transmission pipeline to be abandoned, including 725 miles that FEP described as being essential to the original purpose of constructing FEP’s pipeline. FEP further argued that the Tax Division applied an improper capitalization rate. FEP also asserted that the assessment was arbitrary, not supported by substantial evidence, manifestly excessive, clearly erroneous, and confiscatory. The Tax Division filed a response asking that FEP’s petition for review be denied. A hearing was held before the ALJ, who eventually affirmed the Tax Division’s assessment of FEP’s property in Order No. 9. In doing so, the ALJ found that FEP had failed to present sufficient evidence to show that the Tax Division’s treatment of obsolescence in its cost approach resulted in a manifestly excessive, clearly erroneous, or confiscatory assessment. | aThe ALJ further found that the Tax Division had the discretion to consider economic or functional obsolescence in valuing taxable property and that FEP had failed to meet its burden of demonstrating that the Tax Division abused its discretion or that its failure to consider functional or economic obsolescence rendered the assessment incorrect in measuring the fair market value of FEP’s property. The ALJ next addressed the Tax Division’s consideration of FEP’s future income, noting that Arkansas Code Annotated section 26-26-1607 (Supp. 2015) neither specifies how far into the future the Tax Division must consider future income nor requires the Tax Division to project the future income of a company. According to the ALJ, the statute only requires that the Tax Division consider a company’s future income stream and that it did so. Although noting that the Tax Division had a preference for company-specific capitalization rates where possible, the ALJ found that FEP failed to submit information for the Tax Division to calculate a company-specific capitalization rate for FEP and that FEP’s calculation of an individualized capitalization rate was based on comparison companies dissimilar to FEP. The ALJ found that FEP had failed to prove that the Tax Division’s assessment was incorrect in measuring the fair market value of FEP, and FEP had not met its burden to overturn the assessment. The ALJ concluded that the assessment was proper, reasonable, and in the public interest. FEP filed its “Petition for Rehearing” from Order No. 9 with the Commission, arguing that the Tax Division should have considered economic obsolescence; should have developed a specific, individualized capitalization rate; and should have used an average of FEP’s income over a three-year period instead of a two-year average. Lin its response, the Tax Division argued, among other things, that FEP was insulated from the market conditions of the Fayetteville Shale by having guaranteed contracts through 2020 and 2021. It further argued that the methods FEP used to show economic obsolescence — un- derutilization and the income shortfall methods — had previously been rejected by the Commission and by the'Arkansas Supreme Court.' The Tax Division also argued that it did not abuse its discretion by failing to make an adjustment for economic obsolescence. After the Commission had denied FEP’s petition for rehearing in Order No. 11, FEP sought review 'of that order in the circuit court. FEP argued that Order No. 11 was unlawful for many of the same reasons stated in its petition seeking review of the assessment. These included that the Tax Division failed to consider FEP’s undisputed evidence' as to the market conditions in the Fayetteville Shale, including that FEP is entirely dependent on production from the Fayetteville Shale and the underutilization of FEP’s pipeline. FEP further argued that the Tax Division failed to properly consider the imminent termination of contracts that provide over 90 percent of FEP’s revenue. According to FEP, the-Tax Division misapplied section 26-26-1607 by failing- to properly consider economic obsolescence. The Tax Division answered, asking that the petition be denied. Following briefing and oral argument before the circuit court, the court ruled from- the bench. The court affirmed the Commission’s assessment as supported by substantial evidence, |finot clearly erroneous, and that the ad valorem assessment of the FEP natural-gas pipeline of $886,387,572 was not confiscatory or manifestly excessive. This appeal followed. II. Arguments on Appeal On appeal, FEP argues (1) that the Commission violated Ark, Code Ann. § 26-26-1607 by failing to consider the undisputed market evidence that establishes economic obsolescence; (2) that the Commission erred by refusing to make findings based on evidence submitted by FEP and by giving preclusive effect to prior Commission orders where FEP was not a party; ' (3) that the Commission committed errors of law by rejecting generally accepted methods of calculating economic obsolescence; (4) that the Commission erred by concluding that depreciation always accounts for economic obsolescence; (5) that the Commission’s income approach was excessive by using too much income at too high of a capitalization rate; and (6) that the Commission erred by imposing additional requirements that are not prescribed in Arkansas, Code Annotated section 26-26-1610. III. Standard of Review Our standard of review, mandated by the legislature, does not extend any further than’ to determine whether the Commission’s findings are supported by substantial evidence and whether the Commission has regularly pursued its authority. Ozark Gas Pipeline Corp. v. Ark. Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Our supreme court has held that it is not within the province of the courts of this state to assess property, but only to review those assessments. Id. The .burden is on the party protesting the assessment to show that the assessment is manifestly excessive, clearly erroneous, or confiscatory. Id. It is only in the most I «exceptional cases that an appellate court will grant a reassessment. IBM Credit Corp. v. Pulaski Cty., 316 Ark. 580, 873 S.W.2d 161 (1994). IV. Discussion The central issue in this appeal is whether the Tax Division and, ultimately, the Commission, properly considered FEP’s evidence purporting to show that the pipeline was economically obsolete when it reviewed the assessment of FEP’s property. Our supreme court has stated, Economic obsolescence, as used with respect to valuation of property for taxation, is “a loss of value brought about by conditions that environ a structure such as a declining location or down-grading of a neighborhood resulting in reduced business volume.” Black’s Law Dictionary (5th ed. 1979). Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm’n, 307 Ark. 171, 177, 818 S.W.2d 935, 938 (1991). In determining fair market value, Arkansas Code Annotated section 26-26-1607(b)(1) authorizes the Tax Division to use various cost approaches such as the original cost less depreciation and the replacement cost less depreciation. The Tax Division is also allowed to consider functional or economic obsolescence as part of this approach. Id. The decision in Arkansas Electric Cooperative is dispositive on these points and requires that we affirm the assessment. In that case, the supreme court, noted that a 1980 amendment changed section 26-26-1607(b)(l) from mandatory (shall) to directory (may). The court held that the language of the statute vested the Tax Division with both the option and the discretion to consider economic and functional obsolescence in valuing taxable property. In that case, as in the present case, the Tax Division contended that it did consider obsolescence in valuing [ 7the taxpayer’s property because an implicit component of the depreciation subtracted from the original cost is obsolescence. Although FEP cites Arkansas Electric Cooperative in its briefs,, it does not discuss its holding that section 26-26-1607(b)(1) gives the Tax Division the option and discretion to consider economic, obsolescence in its valuations. Instead, FEP argues that the Tax Division violated section 26-26-1607 by failing to consider whát FEP characterizes as its undisputed evidence concerning negative economic conditions in the Fayetteville Shale field as part of its argument that there should be an adjustment for economic obsolescence. The supreme court’s holding in Arkansas Electric Cooperative that consideration of obsolescence is optional and discretionary means that the Tax Division can, but is not required to consider physical or economic obsolescence in valuing a company. Thus, FEP must show that the Tax Division abused its discretion in' failing to consider FEP’s evidence of economic- obsolescence. Here, the Commission found that the Tax Division did not abuse its discretion in not making an additional adjustment for obsolescence, because the Commission had held that depreciation implicitly takes into account factors such as the obsolescence of an asset. The Commission further found that FEP’s FERC forms do not show any obsolescence beyond tlie reported amount of depreciation. FEP does not argue that the Commission erred in these findings or that the Tax Division abused its discretion in not considering obsolescence. It is an appellant’s burden to demonstrate and explain reversible error. See Tri-Eagle Enters. v. Regions Bank, 2010 Ark. App. 64, 373 S.W.3d 399; Parker v. Par ker, 97 Ark. App. 298, 248 S.W.3d 528 (2007). Here, the parties’ experts testified as to their methodologies; however, neither expert testified that the other’s methodology was wrong. To the contrary, both Mark Andrews (FEP’s |^expert) and the Tax Division reached-the same valuation figure using the cost approach before Andrews applied a discount for economic obsolescence. Contrary to FEP’s argument, Jim Paws, Inc. v. Equalization Board of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986), does not require that an adjustment for economic obsolescence be made. Rather, that case stands for the proposition that an assessor cannot simply rely on one method to establish' the fair market value of the property or company being assessed. Here, unlike the assessor in Jim Paws, the Tax Division considered both the replacement cost and income approaches to arrive at its assessment. There is no merit to FEP’s argument that because the Tax Division rejected FEP’s two proposed methods for calculating economic obsolescence (the income-shortfall and the underutilization or utility methods), it was required to provide some alternative method for calculating obsolescence. It did. Brent Eyre testified on behalf of the Tax Division that he tested for obsolescence by performing a market analysis to examine the market-to-book ratio of various companies. The resulting overall ratio was 1.91, which Eyre said indicates no obsolescence. Andrews testified that Eyre did not perform an appropriate test to determine economic obsolescence; however, he did not explain how or why Eyre’s test was not appropriate. It was FEP’s burden to do so. Tri-Eagle Enters., supra. FEP’s main point in support of its argument that there is economic obsolescence is that its firm contracts, which reserve approximately 92 percent of its pipeline capacity, expire in 2020 or 2021; therefore, they need to be considered in making the current assessment. Section 26-26-1607(b)(3)(B) provides that the “utility operating income to be capitalized |flshould be determined by reference to the company’s historical income stream, appropriately weighted, with consideration to the future income stream.” Both experts testified that they considered FEP’s contracts in arriving at their respective valuations. Neither of them could testify about FEP’s future income after the expiration of the contracts because it would be sheer speculation. Tax Division’s Sarah Bradshaw testified that seven years was too far into the future to make accurate predictions of future income. Section 26-26-1607 requires only consideration of the company’s future income stream. All three experts testified that they gave consideration to FEP’s future income stream. I FEP attempts to distinguish the supreme court’s decision in Ozark Gas Pipeline, supra, from the present case on the basis that it was a known fact as of January 1, 2014, that FEP’s contracts would expire in 2020 or 2021. In Ozark Gas Pipeline, it was also known, however, that, as of the dates of the 1995 and 1996 assessments at issue, the capacity payments, like those in the present case, would expire in 1997. 342 Ark. at 594, 29 S.W.3d at 731. The supreme court held that the pipeline company had not shown that the Tax Division had not appropriately considered historical income and future income stream, as section 26-26-1607(b) requires, other than to disagree with the weight given to the income method. Id. at 601-02, 29 S.W.3d at 735-36. The Tax Division’s use of only two years of FEP’s income, as well as its use of an industry-wide capitalization rate, was not error. Both are matters of skill and judgment on the part of the appraiser that go to the weight to be given to the valuation by the Commission. See Ozark Gas Pipeline Corp., 342 Ark. at 601, 29 S.W.3d at 735. hoAs to the use of a two-year average for FEP’s income instead of a three-year average, the Commission found that FEP’s 2012 income did not accurately reflect FEP’s value because FEP was being paid for less than full capacity for the first year, and that would not reflect the remainder of FEP’s contracts. The Commission further found that FEP was guaranteed a stable level of income until the expiration of its contracts. FEP does not challenge these findings. The Commission also found that FEP failed to provide sufficient evidence to enable the Tax Division to calculate an individualized capitalization rate for FEP. Although Andrews testified that FEP provided the Tax Division with more information than in previous years, the Commission found that both he and FEP failed to identify this additional information. The Commission further found that the companies FEP used to determine its capitalization rate were not sufficiently similar to FEP to support their use in calculating the capitalization rate. We cannot say that these findings are clearly wrong. FEP argues that our holding in McDaniel v. Arkansas Public Service Commission, 2014 Ark. App. 529, 444 S.W.3d 380, requires reversal because the Commission did not make findings regarding FEP’s evidence concerning economic obsolescence. We disagree that McDaniel requires reversal. First, the statute at issue in the present case has been interpreted to give the Tax Division both the option and the discretion to consider economic obsolescence. The Commission found that FEP failed to show that the Tax Division had abused its discretion in failing to consider economic obsolescence. FEP does not argue that there was an abuse of discretion. In fact, FEP does not even acknowledge the Tax Division’s broad discretion. _JjjNor has preclusive effect been given to earlier Commission proceedings. Although the Commission relied on an earlier Commission ruling in determining that depreciation implicitly takes into consideration the obsolescence of an asset, it did not give preclusive effect to that ruling. Instead, the Commission relied on the fact that FEP’s FERC form showed no obsolescence beyond the reported depreciation. The Commission’s prior ruling that rejected the income-shortfall method could be seen as having preclusive effect, but the Commission noted that FEP offered no evidence to address the Commission’s concerns with that method. We cannot reach the merits of FEP’s argument that the Tax Division’s failure to consider economic obsolescence violated professional appraisal standards because its abstract does not demonstrate that the argument was raised below. The Tax Division argued that the issue was being raised for the first time on appeal. In its reply brief, FEP cites the transcript of the prefiled surrebuttal testimony of Mark Andrews. However, none of the references appear in Andrews’s abstracted testimony. It is fundamental that the record on appeal is confined to that which is abstracted, and we will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Middleton v. Lockhart, 364 Ark. 32, 216 S.W.3d 98 (2005); Boatmen’s Tr. Co. of Ark. v. Hous. Auth. of N. Little Rock, 346 Ark. 192, 57 S.W.3d 132 (2001); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997). Moreover, we cannot find where either the Commission or the circuit court ruled on the issue. When the appellate court has no ruling on an issue from either the administrative agency or the circuit court, arguments pertaining to that issue are not preserved for our review. See Louisiana v. Joint Pipeline Grp., 2010 Ark. 374, 373 S.W.3d 292; Seiz Co. v. Ark. State Highway 12& Transp. Dep’t, 2009 Ark. 361, 324 S.W.3d 336; Ark. Wildlife Fed’n v. Ark. Soil & Water Conservation Comm’n, 366 Ark. 50, 233 S.W.3d 615 (2006). Affirmed. Virden, Harrison, Klappenbach, Glover, and Brown, JJ., agree. . In its Order No. 11 denying FEP’s petition for rehearing, the Commission did not make any factual findings or Specifically adopt the ALJ’s Order No, 9. Rather, the Commission simply denied FEP’s petition for rehearing. . Section 26-26-1607(b) also provides for consideration of other valuation approaches for the assessment of property. They are the stock-and-debt method and the income method. . Neither FEP nor the Tax Division relied on the stock-and-debt method of valuation. . We cannot consider the Tax Division’s argument that the circuit court never acquired jurisdiction over FEP’s appeal to that court because FEP failed to exhaust its administrative remedies before the Commission by prematurely filing its petition for rehearing from the ALJ's Order No. 9. The Tax Division failed to file a notice of cross-appeal. The failure, to do so left the circuit court’s order denying the motion to dismiss unchallenged on appeal and not preserved for our review, Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 510 S.W.3d 258; Landers v. Stone, 2016 Ark. 272, 496 S.W.3d 370; Gallas v. Alexander, 371 Ark. 106, 263 S.W.3d 494 (2007).

RAYMOND R. ABRAMSON, Judge |!Appellant Gerber Products Company (Gerber) brings this interlocutory appeal from two discovery orders entered by the Sebastian County Circuit Court. Therein, the court denied Gerber’s motion for a protective order and required Gerber to produce certain documents that it had withheld on the grounds of attorney-client and work-product privileges. The court also refused to require appellees CECO Concrete Construction, LLC (CECO), and Alberici Constructors, Inc. (Alberici), to return or destroy privileged documents that Gerber had inadvertently produced during the discovery process. We affirm the circuit court’s rulings. I. Jurisdiction Because it is unusual for our appellate courts to entertain an interlocutory appeal, we | stake this opportunity to explain the basis for our jurisdiction. In 2012, our supreme court adopted Rule 2(f) of the Arkansas Rules of Appellate Procedure — Civil. See In Re Ark. Rules of Civil Procedure, Appellate Procedure, 2012 Ark. 236. Rule 2(f) provides that a party may seek the supreme court’s permission to file an interlocutory appeal from certain designated discovery orders involving the defense of privilege. The rule further provides that in determining whether or not the interlocutory appeal may proceed,' the supreme court will be guided by six factors: the need to prevent irreparable injury; the likelihood that the petitioner’s claim of privilege or protection will be sustained; the likelihood that an immediate appeal will delay a scheduled trial date; the diligence of the parties in seeking or resisting an order compelling the discovery in circuit court; the circuit court’s written statement of reasons supporting or opposing immediate review; and any conflict with precedent or other controlling authority as to which there is substantial ground for difference of opinion. Ark. R. App. P.-Civ. 2(f)(l)(a)-(f) (2016). If the supreme court allows the appeal, the petitioner must file a timely notice of appeal and an appellate record. Ark. R. App. P.-Civ. 2(f)(3). In the present case, Gerber filed a Rule 2(f) petition to appeal from two discovery orders involving a claim of privilege. The supreme court granted the petition and transferred Gerber’s appeal — along with two other Rule 2(f) cases in which permission to appeal had been granted — to our court in August of this year. Our jurisdiction is therefore pursuant to Rule 1 — 2(d) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas (providing that the supreme court may transfer to the court of appeals any case appealed to the supreme court). Our research indicates that this will be the first case that |3addresses the merits of a Rule 2(f) appeal. II. Background This case stems from a construction project at the Gerber plant in Fort Smith. Appellee Alberici served as the general contractor and construction manager on the project, and appellee CECO was hired to perform concrete work. In 2012, a subcontractor on the job, Veejay Cement Contracting Company, Inc., sued Gerber, CECO, and Alberici in Sebastian County Circuit Court. Vee-Jay’s claims were resolved and dismissed, but cross-claims remained among Gerber, CECO, and Alberici. It was in the context of these cross-claims that CECO and Al-berici propounded requests for production of documents (RFPs) to Gerber in early 2013 during the discovery phase of the litigation. The RFPs asked that Gerber produce contracts, reports, emails, and other correspondence and paperwork related to the construction project, along with the personnel files of two employees. Gerber objected to providing the personnel files on grounds of confidentiality and irrelevance but otherwise made no objection to the RFPs. In particular, Gerber made no objection that the requested materials were protected by attorney-client or work-product privileges. Instead, Gerber responded to the RFPs with the statement, “See documents provided on enclosed diskettes.” The diskettes that Gerber provided contained approximately 2,700 pages of documents. Upon reviewing the documents, CECO and Alberici (hereafter, collectively “CECO”) determined that few, if any, emails from the year 2011 had been produced. CECO asked Gerber for the 2011 emails and, after several requests, was told that only two [¿relevant emails existed from that period. CECO also noticed that some of the documents included on the diskettes contained privileged materials. CECO informed Gerber of that fact and returned the documents. Gerber stated that it would provide more material and would work on providing a privilege log. As noted hereafter, the privilege log would not be provided for over two years. In May 2013, CECO filed a motioii to compel further production of documents by Gerber. The circuit court granted the motion in July 2013, ruling that Gerber had not objected to the RFPs but had “unilaterally” redefined the scope of the requests and produced only those documents in line with its “narrowed interpretation” of the requests. The court stated; “Having made no objection .,. Gerber is bound to respond to the requests for production as written.” After the entry of the court’s order, Gerber sent CECO approximately 96,000 pages of additional documents— considerably more than the 2,700 pages it had initially considered responsive to the RFPs. CECO characterized the production as a “document dump” but reviewed the materials and still found them wanting, CECO detailed the perceived deficiencies in a June 2015 letter to Gerber and propounded a,second set of RFPs. Thereafter, Gerber provided several thousand more pages of documents and in July 2015 produced an eight-page privilege log. The log listed several items that Gerber claimed were subject to attorney-client and work-product privileges. In .October 2015, CECO filed a second . motion to compel seeking a more complete | .^response to its RFPs. The motion stated that Gerber had produced additional documents “fitfully and incompletely”; had “peppered” the production with irrelevant materials; and had not filed objections to either the first or second set of RFPs. The circuit court granted the motion to compel in January 2016 and imposed a $2,500 sanction on Gerber, stating that there was reason to believe that Gerber had either intentionally delayed production, withheld production, or produced large amounts of unresponsive material, Soon thereafter, Gerber produced an additional 18,000 pages of documents and a second privilege log. The thirteen-page log contained over 200 entries listing items that Gerber considered to be protected by attorney-client or work-product privilege — ■ some of which had not been identified in ' the previous privilege log. Within. weeks, CECO sent a letter to Gerber asserting that Gerber had waived its claim of privilege by waiting too long to assert it and that, in any event, Gerber had already turned over some of the materials listed in the privilege log without objection in an earlier “document dump.” By this point, Gerber had acquired new counsel who responded that Gerber had not waived attorney-client privilege and asked that CECO return or destroy numerous inadvertently provided materials. CECO refused. In July 2016, Gerber filed a “Motion For Protective Order Seeking Return of Inadvertently Produced Privileged Documents and Protection of Unproduced Privileged Documents Identified On Privilege Logs.” Gerber asserted that it had not waived its right to withhold production of documents based on privilege, nor had it waived its right to seek the return or destruction of privileged documents that it had inadvertently produced. Following a hearing, the circuit court denied Gerber’s motion. The court relied on Dunkin 6v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), for the proposition that failure to object to a discovery request in a timely manner waives all objections, including privilege. The court also stated that it was “particularly taken by the apparent complete lack of precautions in place” to prevent Gerber’s inadvertent disclosures of privileged material.. A second order was entered at Gerber’s request, clarifying that the,court’s ruling governed both of the categories of documents at issue in this case: the materials Gerber had withheld on the ground of privilege and the docu ments that Gerber had inadvertently produced. Gerber appeals from those orders. For its arguments on appeal, Gerber contends that 1) the circuit court erred- in ruling that Gerber waived its right to assert attorney-client and work-product privileges as to the unproduced documents listed in the privilege logs and 2) the court erred in refusing to allow the retrieval or destruction of the privileged documents that Gerber inadvertently provided to CECO during discovery. III. Standard of Review A circuit court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed on appeal absent an abuse of discretion-that is prejudicial'to the appealing party. Hardesty v. Baptist Health, 2013 Ark. App. 731, 431 S.W.3d 327. To have abused its discretion, the circuit court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, or without due consideration. Id. The abuse-of-discretion standard is also applied to a circuit court’s ruling on a protective order. See Nat’l Enters., Inc. v. Lake Hamilton Resort, Inc., 355 Ark. 578, 142 S.W.3d 608 (2004). 17IV. Documents Not Yet Produced Gerber argues first that the circuit court erred in ruling- that it waived attorney-client and work-product privileges with regard to the unproduced documents listed in the privilege logs. We note at the outset that at this interlocutory stage, we need not determine whether those documents are in fact privileged; the only issue before us is whether Gerber waived its right to assert the privileges on which it relies. A. Broad-Subjecfc-Matter Waiver Gerber’s primary argument under this point is that the circuit court incorrectly applied a “broad-subject-matter waiver” to Gerber’s claims of privilege on the as yet unproduced documents, A broad-subject-matter waiver occurs when a court rules that a party has waived the protection of a privilege simply by inadvertently producing other privileged documents during discovery. Gerber cites numerous cases for the proposition that a party’s inadvertent disclosure of privileged materials should not result in a waiver of privilege as to all other materials on the subject. See, e.g., In re Hechinger Inv. Co. of Del., 303 B.R. 18 (D. Del. 2003); Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109 (D.N.J. 2002); Parkway Gallery Furniture, Inc. v. Kittinger/Pa. House Grp., Inc., 116 F.R.D. 46 (M.D.N.C. 1987). We agree with Gerber that the federal courts generally frown on applying a broad-subject-matter waiver to claims of privilege in the context of discovery. However, the circuit court in this case did' not employ a brOad-subject-matter waiver or engage in that line of reasoning in denying Gerber’s motion for a protective order. Rather, as more specifically explained below, the circuit court ruled that Gerber waived its claims of privilege |sby failing-to object to the RFPs in' a timely fashion. Consequently, we decline to consider reversal on the ground of broad-subjeet-mat-ter waiver. See generally Hurst v. Ark. Radiology Affiliates, P.A., 2015 Ark. App. 333, 2015 WL 2438107. • B. Waiver Based on Conduct As mentioned, the circuit court determined that Gerber’s assertion of privilege was not timely in this case. The court’s decision was premised on our supreme court’s holding in Dunkin, supra, that the failure to object to discovery requests in a timely fashion waives all objections to the requests, including objections based on privilege. We see no abuse of discretion in the circuit court’s ruling. Generally, a party may not obtain discovery of privileged matters. See Ark. R. Civ. P. 26(b)(1) (2016). However, the assertion of a privilege is only safeguarded if the proper procedures are followed in a timely fashion. Dunkin, supra. If proper procedures are not followed in a timely fashion, a claim of privilege may be deemed waived. Id.; see also Reed v. Adamec, 2014 Ark. App. 170, 2014 WL 988937. Here, it is beyond dispute that Gerber did not make a privilege objection or ask for a protective order in its 2013 response to the first set of RFPs; in fact, Gerber did not make any cognizable claim of privilege until its privilege logs were provided to CECO in July 2015 and February 2016. By any standards, Gerber’s claims of attorney-client and work-product privileges were woefully overdue at that point. Nevertheless, Gerber argues that the circuit court erred in applying Dunkin to impose a waiver of privilege in this case. In Dunkin, the appellant responded to the appellee’s interrogatories approximately four months after the thirty-day deadline established by Arkansas Rule of Civil Procedure 1933 and objected to some of the interrogatories on the basis of the privilege against self-incrimination. Our supreme court held that the appellant had waived the privilege by failing to timely assert it and therefore could not be excused from providing the requested discovery. Gerber argues that Dunkin is distinguishable, and while it does differ in some respects from the case at bar, that does not diminish its import. Under Dunkin, an objection to discovery based on privilege is subject to waiver if it is asserted too late in the process. In the case at bar, not only did Gerber fail to object on the grounds of attorney-client and work-product privileges in its initial responses to discovery, it waited more than two years to assert those privileges. Moreover, Gerber’s lack of a timely objection persisted, despite its having been informed in the earliest stages of discovery that it had inadvertently delivered privileged materials to CECO; and despite the fact that the circuit court’s July 2013 order to compel pointed out Gerber’s failure to object to the RFPs. Further, Gerber continued to produce over 100,000 pages of documents during discovery while still making no objection on the basis of the attorney-client and work-product privileges. Additionally, Gerber’s untimely claim of privilege was exacerbated by its general lack of compliance during discovery. The circuit court ruled, in granting CECO’s second motion to compel, as follows: The Court notes this is the second occasion on which an order to compel has had to be filed to obtain compliance from Gerber. In the first, Gerber unilaterally redefined the scope of the requests. In this instance, there is reason to believe they have either intentionally delayed production, withheld production, or produced large amounts of unresponsive material. Therefore, the Court herby orders that Gerber pay the sum of $2500.00 toward attorney’s fees for the filing of the present motion, to be paid within thirty (30) days of this Order. While the Court issues no further sanctions at this time, failure to comply with this Order or to cooperate in accordance with the discovery rules in the future almost certainly shall lead to sanctions. | mConsidering the overall circumstances in this case, we decline to hold that the circuit court abused its discretion in ruling that Gerber waived its claims of attorney-client and work-product privileges with regard to the unproduced documents listed on the privilege logs. We therefore affirm on this point. IV. Documents Produced Inadvertently Gerber inadvertently produced a number of documents containing privileged material over the course of its responses to the RFPs. The first instance occurred in Gerber’s initial response to the RFPs in 2013, and Gerber was notified of that fact by CECO. At Gerber’s request, CECO returned the diskette that contained the privileged documents. Much later, after Gerber had provided thousands of additional pages of documents and two privilege logs, CECO informed Gerber in March 2016 that many of the documents listed on the most recent privilege log had already been provided. Gerber responded with a request that the documents be returned, and when CECO refused, Gerber filed a motion for a protective order. The circuit court denied the motion and refused to require the return or destruction of the inadvertently produced documents, citing Gerber’s lack of precautions in protecting the privileged matters. We affirm the. court’s ruling. Rule 26(b)(5) of the Arkansas Rules of Civil Procedure addresses the inadvertent disclosure of privileged materials during discovery. The rule provides, in part, that the producing party is presumed not to have waived the defense of privilege as to inadvertently produced documents if, within fourteen days of discovering the inadvertent disclosure, it notifies the receiving party of the specific documents involved and the privilege to be asserted. Ark. R. Civ. P. 26(b)(5)(A) (2016). However, the circuit court may consider ^whether the surrounding circumstances show waiver. Ark. R. Civ. P. 26(b)(5)(C). Among the factors the court shall consider is the reasonableness of the precautions taken to prevent the inadvertent disclosure. Ark. R. Civ. P. 26(b)(5)(D)®. Gerber argues that it responded to CECO’s March 2016 notification of inadvertent production within fourteen days and was therefore entitled to the presumption of nonwaiver. While that is a matter of some dispute, we hold that, regardless, the circuit court was within its discretion to determine that a waiver occurred in this instance based on Gerber’s lack of precautions to prevent inadvertent disclosure. The record before us shows that the court’s concern about Gerber’s lack of precautions was well-founded. For example, Gerber cites an affidavit from a representative of its former law firm as evidence of precautions taken against the inadvertent disclosure of privileged documents. However, the affidavit is lacking in detail on that subject and would by no means require the circuit court to find that reasonable precautions were taken. Moreover, the series of events throughout the parties’ multiyear history of discovery demonstrates a pattern by Gerber of providing large numbers of documents without objection and without sufficient and diligent screening for privileged materials. Affirmed. Gladwin and Whiteaker, JJ., agree. . A privilege log contains a list of documents that fall within the parameters of a request for production but are not produced because they are claimed to be privileged.

BART F. VIRDEN, Judge JjA group of the natural heirs of Tom Alexander, namely David Neal, Judy Kruse, John Holleman, Cynthia Frazier, Marianne Massey, Kathy Barber, Alice Boyle, and Evelyn (Brooks) House, Martha Breeden, Robert Brooks, and James Brooks appeal the Sebastian County Circuit Court decision to grant Alexander’s estate to Sparks Regional Medical Center. We affirm in part and reverse in part. I. Facts Tom Alexander executed a will in 1966 when he was twenty-one years old. Though he was unmarried and did not have children at the time he executed the will, Alexander set up a testamentary trust for a wife and any children he might have in the future. The will provided that if he was not survived by a wife or children, then his estate would go to his brother Frank and his mother Ruth. Alexander directed that if his brother and mother |2predeceased him, then Edna Brewer, a family employee, would receive an annuity of $400 per month. All of the named beneficiaries predeceased Alexander; however, Alexander also provided that in the event that occurred, I give, devise and bequeath the remainder of my property as follows: To Sparks Hospital, Fort Smith, Arkansas as a memorial gift to permit the hospital to make necessary improvements or to purchase necessary equipment. Over the years, Sparks Memorial Hospital (SMH), the legal entity that owned and operated Sparks Hospital, went through various changes, including changing its name to Sparks Regional Medical Center (SRMC) in 1970, In 2002 SRMC became a part of Sparks Health Systems (SHS), including different entities operating healthcare facilities in the region. SRMC remained a nonprofit hospital that served the Fort Smith area. In 2009 Health Management Associates, Inc. (HMA), a publicly traded for-profit entity, bought SHS, which included SRMC and its “hospital business.” HMA later became a subsidiary of Community Health Systems (CHS), a for-profit, publicly traded corporation based in Tennessee. HMA remained a separate legal entity from CHS; however, HMA was required to comply with certain restrictions placed on it by CHS, When Alexander died in 2015, a petition to submit the will to probate was filed by Elise Alexander, the personal representative of the estate. The circuit court granted the petition and appointed a personal representative of the estate who then filed a petition to determine heirship. Notice of the petition was sent to Alexander’s possible natural heirs and |sto CHS, SHS, and SRMC. An inventory of Alexander’s estate was performed, and the assets were determined to be $5,661,104. In the multiple briefs filed by the appellants, four main arguments surfaced: (1) Sparks Hospital no longer exists, thus Alexander’s devise must fail and the estate passes in accordance with the intestacy statute; (2) Alexander’s charitable bequest to a local, nonprofit hospital intended to assist in the operation and improvement of the hospital could not be effectuated by granting the residuary estate to SRMC or Fort Smith HMA; (3) alternatively, Alexander exhibited no charitable intent in his devise to Sparks Hospital, therefore the doctrine of cy pres could not be used to reform the -will; and (4) the doctrine of cy pres may only be applied to charitable trusts, and Alexander did not set up such a trust in his will. There was extensive testimony at the trial, including that of Thomas Webb, the executive director of SRMC, who testified about the changes SMH had gone through since 1966. Webb explained that, pursuant to the asset-purchase agreement in 2009, SRMC no longer owns the hospital, it does not have a license to operate a hospital, it does not intend to operate a hospital, and SRMC does not provide any medical care directly to patients. Webb stated that SRMC still is a not-for-profit organization and that “[t]he function of Sparks Regional Medical Center is to continue its mission of providing healthcare and healthcare education for the, .surrounding area of,western Arkansas and eastern Oklahoma." Webb explained that this charitable function, was accomplished, through money; specifically, the $40-$50 million SRMC received in profits from the asset-purchase agreement and from the collection of accounts receivable that existed prior to December 1, 2009. Webb testified that $41 million had been given to the Degen Foundation for the development of an I ¿osteopathic school to train physicians to serve the Fort Smith community. Webb stated that the Degen Foundation-will own the building and that Mercy Health Systems, a nonprofit organization, will operate and manage the facility. Webb explained SRMC’s plan to build the school and purchase equipment for the school is.within the parameters of Alexander’s bequest to “make necessary improvements or tó purchase necessary equipment.” In the proposed findings of fact and conclusions of law, SRMC asserted that Alexander intended to leave his estate first to his mother and brother, both of whom predeceased Alexander. In that event, Alexander intended to make a charitable devise to SMH as a memorial gift that would permit the hospital to make improvements and purchase necessary equipment. Appel-lee argued that SRMC is the same legal entity as SMH, and thus the devise stands. Appellee asserted that, alternatively, if SRMC is not the same entity and Alexander’s bequest cannot be effectuated, then Alexander’s charitable intent may be fulfilled by applying the cy pres doctrine and granting the estate to SRMC. By doing so, the circuit court could fulfill Alexander’s charitable intent as closely as possible, and SRMC suggested several ways the court could direct the estate to be used. In an order entered on June 15, 2016, the circuit court concluded: [I]t is clear that the Testator intended to bequeath his residuary estate as a memorial gift to Sparks Memorial Hospital, (hereinafter “SMH”), the legal entity that owned the nonprofit Sparks Hospital at the time he executed his Will, to specifically benefit the Fort Smith area with improved healthcare services. As such, the Testator strove to support care administered in hospitals rather than-the physical structure itself. The circuit court recounted the history of SMH since 1966 when Alexander executed his will, and it made the following findings of fact. In 1966 SMH was a nonprofit hospital with the charitable purpose of providing healthcare in the Fort Smith area. In 1970 hSMH changed its legal name to Sparks Regional Medical Center, but it remained incorporated as the same nonprofit entity. In 2002 SRMC changed from a nonprofit association to a nonprofit corporation and maintained its charitable purpose; however, SRMC added that its purpose was also “to establish, maintain, and operate a vertically integrated, primary care driven, regional.healthcare delivery system designed to enhance the accessibility, quality, and cost-effective healthcare services in the communities served by the corporation.” SRMC’s purpose and function remained the same despite these changes. In 2009, SRMC sold substantially all of its assets, including the hospital and the “Sparks” name to .Fort Smith Regional Healthcare Foundation. SRMC received between $40 and $50 mil lion in this sale, known as the “asset-purchase agreement,” and the purchase was not a merger. SRMC would collect and retain unpaid accounts. As of the date of the trial, the board of directors for SRMC varied only slightly from the board of directors at the time of Alexander’s death, and SRMC’s mission continues to be “providing healthcare and healthcare education” for the surrounding area. From the profits of the asset-purchase agreement, SRMC has pledged up to $50 million to the Arkansas College of Health Education (ACHE), a corporation founded to create and develop an osteopathic medical school, which would educate osteopathie physicians to render patient care to the Fort Smith community. SRMC had already donated $41 million to the Degen Foundation to build the school, and there were plans to build a $4.1 million clinic across the street from: the school. The Degen Foundation will own the clinic, but it will be operated by Mercy Health Systems, a nonprofit organization. The clinic will be a “fully functioning clinic that is staffed with regular physicians, nurses and staff’ providing services to the public. The funds from 1 (Alexander’s residuary estate could be used to complete the medical school building and purchase necessary medical equipment for the school. The building will have several kinds of functioning labs requiring specialized equipment and a state-of-the-art audio-visual system. Medical care had developed over the years, and services that had traditionally been performed in hospitals were now conducted in clipics. SRMC’s clinic would provide “a variety of hospital-like operations” and SRMC’s mission is to “improve the health status of the residents of the community by initiating and supporting programs which are designed to improve the community’s health and well-being,” thus SRMC continues its charitable purpose through education, research, and patient care. Alexander intended to benefit the Fort Smith area “with improved healthcare services. As such, the Testator strove to support care administered in hospitals rather than the physical structure itself.” The circuit court concluded that although SRMC operates under different articles of incorporation and a different name, it remains a nonprofit corporation capable of carrying out the intent of the Testator, and it is entitled to Alexander’s estate. Alternatively, the circuit court found: Even if the Court were to find that the Testator intended Sparks Hospital, the nonprofit hospital, not the nonprofit entity, to be the beneficiary of his residuary estate, the nonprofit hospital no longer exists. Sparks Hospital, the hospital, is being operated today as a for-profit hospital. As such, this Court may look to the doctrine of cy pres. The circuit court found that cy pres may be applied to Alexander’s bequest. Specifically, it determined that cy pres applies to charitable bequests, that Alexander had the necessary charitable intent as evidenced by his specific devise, that Alexander’s intent was the promotion of health, that Sparks Hospital was a charitable organization that had ceased |7to exist in 2009, that it is impossible to carry out Alexander’s charitable purpose for that reason, and that SRMC is the appropriate cy pres beneficiary. • The circuit court ordered that SRMC must use Alexander’s estate “solely in pursuit of its hospital-like services such as providing medical care and community programs at the medical school or in the clinic owned by SRMC” and that SRMC must memorialize Alexander’s bequest as directed in the Will. The day the order was entered the natural heirs filed notices of appeal. II. Issues on Appeal On appeal, appellants raise two main issues: whether the circuit court erred by finding that Alexander intended to give his estate to a specific legal entity, and whether the circuit court erred by applying cy pres to direct the residuary estate to SRMC. We will address these issues as five distinct points: (1) whether the circuit court erred in finding that Alexander intended to leave his estate to a specific legal entity; (2) whether SRMC continued to exist throughout the changes that took place from 1966 to 2014; (3) whether the doctrine of cy pres may be applied to charitable bequests; (4) whether Alexander had charitable intent when he devised his estate to Sparks Hospital; and (5) whether SRMC is similar enough to SMH to be capable of carrying out Alexander’s intent. We reverse the circuit court’s finding that SRMC is the same entity as SMH. On all other points we affirm. A. Whether Alexander Intended to Leave His Estate to a Specific Legal Entity Appellants argue that the circuit court erred in finding that Alexander intended to bequeath his estate to the legal entity that owned and operated Sparks Hospital, rather than to the hospital itself. We disagree, and we affirm. |aThis case is subject to a de novo standard of review. Covenant Presbytery v. First Baptist Church, 2016 Ark. 138, at 4, 489 S.W.3d 153, 156. The circuit court’s decision should not be reversed unless there is a finding that is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is left with a firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the circuit court to review the credibility of the witnesses. Id. The court’s primary objective when construing the language in a will or trust is to ascertain and effectuate the intent of the testator or settlor as long as that intent is not contrary to the law. Id.; See Bailey v. Delta Tr. & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004). Where the language of a will expressly states the testator’s intention, the intent must be gathered from the four corners of the instrument. Covenant, 2016 Ark. 138, at 4, 489 S.W.3d at 156. It is proper to invoke the rules of construction only when the language is ambiguous. Id. In order to determine the intentions of the testator, consideration must be given to every part of the testamentary instrument. Id. Extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will or trust are ambiguous. Burnett v. First Commercial Tr. Co., 327 Ark. 430, 939 S.W.2d 827 (1997). The circuit court found that “it is clear that the Testator intended to bequeath his residuary estate as a memorial gift to Sparks Memorial Hospital (hereinafter, “SMH”) the legal entity that owned the nonprofit Sparks Hospital.” As SRMC points out, a building cannot make improvements or buy equipment. Throughout the arguments of the parties, the status of Sparks Hospital as a nonprofit entity, an institution operated for charitable purposes, is a key fact that reveals the essential role of SMH, the entity that operated Sparks | ¡Hospital at the time the will was executed. With that in mind, it is impossible to say that we have a firm conviction that the circuit court made a mistake in its finding on this issue. Furthermore, the circuit court referred to the possibility that Alexander simply misnamed the entity he intended to receive the residuary estate. At the time Alexander executed his will Sparks Memorial Hospital was popularly known as “Sparks Hospital.” Citing Lowery v. Jones, 272 Ark. 55, 58, 611 S.W.2d 759, 760 (1981), the circuit found that “for over a century it has been held that a bequest or devise will not fail because of a mere inaccuracy in the designation of the beneficiary.” We find no error in the circuit court’s conclusion that the bequest to “Sparks Hospital” rather than “Sparks Memorial Hospital” could have been a simple misnomer. Giving due deference to the circuit court, we are not left with a firm conviction that the circuit court erred when it determined that Alexander intended for his residuary estate to go to the entity that owned and operated Sparks Hospital. It is a logical conclusion, and we hold that the circuit court successfully effectuated the intent of the testator. B. Whether the Function of SRMC Remained the Same Throughout Its Transitions In its order, the circuit court found that “SRMC is the same legal entity as SMH. It is immaterial that the articles of incorporation of the entity were modified and that the name of the entity was changed from SMH to SRMC since the entity’s purposes and functions remained the same.” On appeal appellants argue that the circuit court erred in finding that the purpose and functions of SRMC remained the same throughout its transition from a nonprofit association to a nonprofit corporation, and from a nonprofit corporation to the modern-day SRMC. We agree with the appellants, and we hold that SRMC is not the | msame entity as the “Sparks Hospital” Alexander named in his will, nor does SRMC have the same function as SMH. In 1970, SMH’s articles of association identified “charity care” as its purpose. Appellants assert that in 2002 SMH “exploded into a ‘vertically integrated, primary care driven, regional healthcare delivery system’” and no longer identified “charity care” as one of its purposes. The 1970 articles of incorporation set forth that one purpose of the association is “to provide such [medical] services as a charitable institution and not for profit[.]” The 2002 articles of incorporation identify SRMC as a “public benefit corporation which shall be governed by the provisions of the Arkansas Nonprofit Corporation Act of 1993” and that SRMC “shall be operated exclusively for charitable, scientific, and educational purposes for the benefit of Sparks Health System, an Arkansas nonprofit eor-poration[.]” Appellants argue that even if SRMC remained the same entity, despite the foregoing changes, then the 2009 sale of substantially all of SRMC’s assets in the asset-purchase agreement to HMA, a publicly traded for-profit entity, is the point at which “ ‘Sparks Hospital, Fort Smith, Arkansas’ predeceased Tom Alexander[.]” We agree that the changes that took place in 2009 are transformative. After the asset-purchase agreement, SRMC no longer operated a hospital, held a hospital license, or provided direct medical care. Instead, SRMC mainly collected unpaid accounts using the Sparks name and transferred those assets to other entities, such as the Degen Foundation, to establish an osteopathic medical school. Appellee argues that the present case is similar to Lowery, swpra, in which the testator -devised property to “Shriners Hospital for Crippled Children, Little Rock, Arkansas” which [ndid not exist. In Lowery, our supreme court affirmed the probate court’s decision that the testator clearly intended a bequest to go to Shri-ners Hospital for Crippled Children, A National Organization, and the testator’s des ignation in the will was a simple misnomer. The instant case is distinguishable. We previously held that the circuit court did not err in finding that' Alexander’s bequest to Sparks - Hospital, rather than Sparks Memorial Hospital, could have been a misnomer; however, in light of the testimony and evidence discussed above, Lowery is inapplicable to the issues of whether SRMC was the same entity as SMH, and whether the two entities had the same function. By 2009, the differences between SMH and SRMC were more profound and not a simple difference between the names as discussed in Lowery, Because'SRMC is not the same-entity as SMH’ arid does not serve the same purposes set forth in the 1970 articles of incorporation;- Alexander’s devise fails; therefore, we must address the issues regarding cy pres. C. Whether the Doctrine of Cy Pres Applies to Charitable Bequests First, we address appellants’ argument that cy pres applies only to charitable trusts. We disagree, and we affirm the circuit court’s decision that cy pres may be applied to charitable bequests. Cy pres is a.doctrine of approximation, State ex rel. Att’y Gen. v. Van Buren Sch. Dist. No. 42, 191 Ark. 1096, 1102, 89 S.W.2d 605, 607-08.(1936). The equitable doctrine of cy pres “is the principle that equity will, when, a charity originally or later becomes impossible or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible. Equity has the power to shape a l ^charitable trust to meet emergencies.” Slade v. Gammill, 226 Ark. 244, 262, 289 S.W.2d 176, 181 (1956). In 2005⅛: the General Assembly codified cy pres as it relates to charitable trusts in 'Arkansas Code Annotated section 28-73-413: [I]f a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful: (1) the trust does not fail, in whole or in'part;-"- (2) the trust property does not revert to the settlor or the settlor’s successors in interest; and (3) a court may apply cy pres to modify or terminate’the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor’s charitable purposes. There is no indication in section 28-73-413 that the legislature sought to end the application of cy pres to bequests. A legislative act “will not be construed as overruling a principle of common law ‘unless it is made plain by the act that such a change in the established law is intended.’ ” White v. State, 290 Ark. 130, 136, 717 S.W.2d 784, 787 (1986) (citing Starkey Constr., Inc. v. Elcon, 248 Ark. 958, 457 S.W.2d 509 (1970)). In Lowery, - our supreme court upheld the probate court’s decision that the bequest to “Shriner’s Hospital for Crippled Children, Little Rock, Arkansas” should in fact be read as “Shriners Hospital for Crippled Children, a National Organization[.]” 272 Ark. at 58, 611 S.W.2d at 761. The court also held that the probate court’s decision was sustainable as an application of cy pres doctrine: The bulk of the cases applying cy pres involve charitable trusts, rather than bé-quests, as here, and there is some authority that the doctrine is limited to charitable trusts. But the growing weight of authority, and better reasoned, is that the doctrine of cy pres is equally applicable to charitable bequests and devises. Scott on Trusts, Vol. IV, # 348, # 399; Bogert, 2d Edition, Trusts and Trustees, Vol. 2A, # 431; Miller v. Mercantile-Safe Deposit and Trust Co. (1961) 224 Md. 380, 168 A.2d 184. We can see no reason why the logic of cy pres, which was conceived as a method of achieving |1sthe ultimate aim of the donor “as nearly as possible” where his expressed intent for some reason became unattainable, is not equally sound where the bequest is outright rather than in "trust, and this view is consistent with some of the dicta of our own decisions. Fordyce v. Woman’s Christian Nat’l Library Assn., 79 Ark. 550, 96 S.W. 155 (1906); Bosson v. Woman’s Christian National Library Association, 216 Ark. 334, 225 S.W.2d 336 (1949). Lowery, 272 Ark. at 58-59, 611 S.W.2d at 761. The appellants dismiss this language regarding cy pres and charitable bequests as dicta and immaterial to the issue at hand; howevér, we consider the well-reasoned alternative holding of the Arkansas Supreme Court in Lowery to have greater validity, (Dicta consists of statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in'hand, and lacks the force of an adjudication. Burnette v. Perkins & Assocs., 343 Ark. 237, 242, 33 S.W.3d 145, 150 (2000)). The General Assembly was presumably aware of the Lowery case and the existence of the issue of whether cy pres applied to bequests as well as trusts when the statute was enacted in 2005, yet the legislature did not address bequests in its codification of cy prés. In Bosson, 216 Ark. at 338, 225 S.W.2d at 338, the Arkansas Supreme Court acknowledges that cy pres may be applied to devises and trusts alike: “There are many cases from this and other jurisdictions in which courts of equity have applied the cy pres doctrine-in the execution of a charitable trust or devise.” . Though not binding on our courts, the Uniform Law Comment to Ark. Code Ann. § 28-73-413 also offers some guidance on the issue: The doctrine of cy pres is applied not only to trusts, but also to other types of charitable dispositions, including those to charitable corporations. This section does not control dispositions made in nontrust form. However, in formulating rules for | Usuch dispositions, the courts often refer to the principles governing charitable trusts, which would include this Code. Ark. Code Ann. § 28-73-413 ed. notes (Westlaw through 91st Ark. Gen. Assembly). The commentary supports SRMC’s argument that the legislature had no intention of forbidding the application of cy pres to charitable bequests, and it certainly did not expressly do so. The General Assembly has not removed bequests from the realm of cy pres; thus, the circuit court did not err in applying the doctrine to the charitable' devise at issue here." D. Whether Tom Alexander Had Charitable Intent Having affirmed the circuit court’s finding that cy.pres applies to charitable bequests, we now discuss.appellants’ contention that Alexander did not have charitable intent when he made the devise to Sparks Hospital. Appellants argue that Alexander intended the bequest to be a gift and not a charitable devise when he set forth that the residuary estate should go to SMH “as a memorial gift to permit the hospital to make necessary improvements or to purchase necessary equipment.” Appellants argue that without the testator’s declaration of a specific purpose, “such as fighting a disease or helping a certain class of citizens,” the circuit court found charitable intent where there is none. We disagree. The analysis in Covenant, supra, is relevant to our discussion of the instant case. In Covenant, one issue was whether the testator had charitable intent when he created a testamentary trust intended for the management of property and to pay income to life-estate beneficiaries. |1BOur supreme court held: Although First Presbyterian and First Baptist are charitable organizations, the will neither provided that the devise was to serve a charitable purpose nor restricted the churches from using the farm’s proceeds for noncharitable purposes. Rather, a plain reading of the instrument reveals that the only identifiable purpose of the testamentary trust was to administer the life estates, which are not charities. The will directed the trustee to “give, devise and bequeath” the residue of his property to the churches. It then directed the trustee “to sell all real estate in their discretion as soon as the law permit[s], talcing into consideration the existence of the life estates hereinbefore created, and distribution of the proceeds therefrom in accordance with this bequest.” Giving these plain words their ordinary meaning, we find that the only duty Carpenter gave to the trustee was to hold the farmland as a testamentary trust during the life of the lifetime beneficiaries and to thereafter distribute the proceeds of the property to the churches. It does not direct the bank trustee or the churches to ensure that the use of the property be for a purpose benefiting any charity. Our statute limits the application of cy pres to instances where a “particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful.” Ark. Code Ann. § 28-73-413(a). Since the will identifies no particular charitable purpose, cy pres could not be used to reform the trust. Covenant, 2016 Ark. 138 at 7-8, 489 S.W.3d at 158. In creating a charitable trust the settlor must describe a purpose of substantial public interest. Kohn v. Pearson, 282 Ark. 418, 420, 670 S.W.2d 795, 796 (1984). The finding of Alexander’s charitable intent hinges on the circuit court’s interpretation of his specific bequest that his estate was “a memorial gift to permit the hospital to make necessary improvements or to purchase necessary equipment.” The circuit court found that this bequest fell under the charitable purpose of the “promotion of health.” Arkansas Code Annotated section 28-73-405 identifies “the promotion of health” as a charitable purpose, and the necessity of up-to-date medical equipment and facilities in a hospital for the promotion of health is self-evident. Unlike the testator in Covenant, Alexander set forth a specific use for his estate, and the court’s reasoning concerning the underlying charitable intent of that bequest — to promote public health — is not clearly erroneous. hfiE. Whether SRMC is Capable of Carrying Out Alexander’s Charitable Intent Appellants argue that the circuit court erred when it found that SRMC was the appropriate cy pres beneficiary of Alexander’s bequest because SRMC is not similar to SMH and thus incapable of carrying out any charitable intent. While we agree that SRMC is not the same entity as SMH, we disagree that SRMC is not the appropriate cy pres beneficiary and affirm. Appellants assert that [t]here is nothing in the will that indicates that Tom Alexander intended for his estate to benefit an osteopathic medical school. The circuit court’s decision was heavily based on the circuit court’s conclusion that Tom Alexander intended to support care administered in hospitals rather than the physical structure itself. The circuit court ordered SRMC to use the funds from the estate “solely in pursuit of its hospital-like services such as providing medical care and community programs at the medical school or in the clinic owned by SRMC in Fort Smith, Arkansas, and to memorialize the accomplishments in the name of Tom Alexander!!]” The circuit court referred to the following relevant findings to support its decision that SRMC is the appropriate' cy pres beneficiary. SRMC executive director Thomas Webb testified that SRMC continues SMH’s mission of “promoting healthcare through money.” From the profits of the asset-purchase agreement and SRMC’s collection of past-due accounts, SRMC has pledged up to $50 million to the Degen Foundation to create and develop an osteopathic medical school. The purpose of the osteopathic school is to train physicians who will, in turn, provide healthcare to the Fort Smith community. The clinic will be across the street from the medical school, which will be built and owned by the De-gen Foundation, and will be managed by the nonprofit organization, Mercy Health Systems, will be “a fully | ^functioning clinic that is staffed with regular physicians, nurses, and staff that will be providing services to our public” and will have “full functioning treatment rooms.” SRMC pledged that if the residuary estate is granted to it, SRMC will direct the funds toward completion of the medical school building and purchasing necessary medical equipment for the medical school. SRMC also suggested that the funds could be used to build the clinic to provide healthcare to the community. Clinics now provide care that was once relegated to hospitals, and Alexander “sought to support care administered in hospitals rather than the physical structure itself.” SRMC fulfills a charitable purpose by educating and training doctors, conducting medical research, and providing patient care. We have upheld the circuit court’s decision that the entity that operated Sparks Hospital was the intended object of Alexander’s bequest and that Alexander had the charitable intent to promote public health when he made the devise to Sparks Hospital. It follows that we find no error in the circuit court’s decision that Alexander’s estate should be used to further the patient-care and community programs that a new clinic will provide to the Fort Smith community. The circuit court reasonably surmised that Alexander intended to help provide medical care and promote the good health of the people in the surrounding area with his express direction that the residuary of his estate should be used to purchase necessary equipment and make necessary improvements. The circuit court fashioned a use for the funds as near to Alexander’s intent as possible under the circumstances, and on this point we affirm. Affirmed in part; reversed in part. Gladwin, Glover and Whiteaker, JJ., agree. Hixson and Brown, JJ., dissent. . David Neal replaced Elise Alexander as representative through a joint petition of the parties.

MIKE MURPHY, Judge | Appellant Chavi Stampley appeals the April 25, 2017 order of the Pulaski County Circuit Court terminating her parental rights to her children N.S. and H.A. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6 — 9(i) (2016), Chavi’s counsel has filed a no-merit brief and a motion to withdraw alleging that there are no meritorious grounds for appeal. The clerk of this court sent a certified packet to Chavi notifying her of her right'to file pro se -points; Chavi has filed no points. After a full examination under the proper standards, we hold that counsel provided a compliant no-merit brief demonstrating that an appeal would be wholly without merit and that counsel’s motion to be relieved should be granted. Chavi Stampley gave birth to N.S. on January 8, 2016. At the hospital, Chavi displayed bizarre and irrational behavior that caused, the nurses to be concerned that Chavi 13may not be able to care for a newborn at home. The record ‘demonstrates that, at that time, Chavi was fixated on excessively bathing and lotioning the child, alternating between feeding the child too much or too. little, arguing with the medical staff about treating the child for syphilis, refusing to answer family medical-history questions, displaying emotional volatility, and indicating a belief that someone would come and take her-baby away from her. Chavi’s other child, H.A., was staying with his father. H.A. was-nine at the time of removal. The nurses contacted the Arkansas Department of Human Services (DHS) about their concerns. DHS sent a caseworker to conduct an interview with Chavi. The caseworker explained to Chavi why she was there and attempted to ask Chavi some questions, Chavi became resistant and left many of the caseworker’s questions unanswered. The caseworker attempted a second contact with Chavi, but again Chavi resisted speaking with the caseworker, left questions unanswered, and attempted to record the meeting on her phone. The caseworker -was-concerned about Chavi’s mental stability and DHS exercised an emergency hold on both N.S. and H.A. At the February 1, 2016 probable-cause healing, Chavi testified that she was being falsely accused and that “every time [she] has a child, someone makes a false report on her.” (Chavi testified she has nine children, but that some of them were grown and others had been taken away from her back in Minnesota.) She stated she did not need counseling or medication. The court found probable cause and ordered Chavi to submit to drug screens; I «a drug-and-alcohol assessment; a psychological evaluation; i counseling; and attend parenting classes. Chavi did not attend the March 14, 2016 adjudication hearing. The trial court adjudicated the children dependent-neglected due to parental unfitness based on Chavi’s instability and erratic behavior. Chavi was partially compliant at the July 13, 2016 review hearing but did not stay in contact with DHS thereafter. At the January 11, 2017 permanency-planning hearing, the court found Chavi had made no progress in the case, and that she “shows up long enough-to cause a scene and disrupt proceedings while pot following Court directives.” Chavi was found in contempt at that hearing for repeatedly disrupting the proceedings. When being admonished by the court, Chavi smiled and laughed. The court changed the goal of the case to termination of parental rights and adoption. DHS filed a petition to terminate parental rights on February 7, 2017, alleging the twelve-month-failure-to-remedy, subsequent-factors, abandonment, and aggravated-circumstances grounds. A termination hearing was held on April 5,2017. At the hearing, Chavi testified that she believed the Minnesota DHS and her mother had conspired against her for money, that DHS steals children for money, that DHS lies to gain custody of other people’s children, and that the hospital staff had abused her baby. She testified that she was seeing her own therapist (who she could only identify as “Allen” and worked “off Cantrell”) because she did not trust the DHS. therapist. Chavi said she did not trust the DHS therapist “because they were trying to get me in there to falsely diagnose me Rto fabricate some paperwork so that my kids could be taken and I didn’t want to fall for that.” The. caseworker testified that N.S. and H.A. were removed due to Chavi’s mental instability and erratic behavior at the hospital, and since the beginning of the case Chavi has been noncompliant. She testified-that Chavi had completed parenting classes and a psychological evaluation but had not been to a single visitation with her children in almost a year. The caseworker said that Chavi did not submit to a drug- and-alcohol assessment and did not show up for drug screens after the one positive test for marijuana early in the case. An adoption specialist for DHS testified that both children are adoptable. To reach this conclusion, she had entered their characteristics in the matching tool database and found that, for the children together, there were 144 matches. Individually, N.S. had 382 matches and H.A. had 170. The trial court terminated Chavi’s parental rights on all grounds alleged in the petition in an order dated April 25, 2017. The trial court found that since the initial petition, Chavi had tested positive for drugs, not stayed in contact with DHS for random drug screens, not visited her children since May 24, 2016, and failed to follow the case plan and court orders. Cha-vi timely appeals. We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the children’s best interest to terminate parental rights; these must be proved by Clear and convincing evidence. Ark. Code Ann. § 9—27—341(b)(3) (Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 5S.W.3d 851. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Brown v. Ark. Dep’t of Human Servs., 2017 Ark. App. 303, 521 S.W.3d 183. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In the no-merit brief, Chavi’s counsel correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting termination of Chavi’s parental rights. Although the trial court found four grounds for termination, only one ground is necessary to support the termination. See Draper v. Ark. Dep’t of Human Servs., 2012 Ark. App. 112, 389 S.W.3d 58. The statutory ground of aggravated circumstances means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(S)(B)(i). Here, the court found little likelihood that services to Chavi would result in successful reunification. We agree. Chavi’s children were removed from her care due to concerns about her mental health, because she had displayed emotional volatility and irrational behavior at the hospital. The children were subsequently adjudicated dependent-neglected based on Chavi’s instability and erratic behavior, including her hesitancy to authorize necessary medical treatment for her infant. | ¡¡Services were offered, and those services included a counseling assessment, drug-and-alcohol assessment, psychological evaluation, drug screens, and other family services. Chavi haphazardly participated in some services and refused others. She did not stay in touch with DHS to make herself available for random drug screens and she did not want to attend counseling with any DHS-referred therapists because she did not trust them. She alleged she sought her own counseling but could not provide any evidence thereof or even come up with the full name of her counselor or where she received services. Chavi stopped attending visitation with her children and by the entry of the order had not seen them for almost a year. The caseworker testified there was nothing to prohibit Chavi from doing so. In its termination order, the court specifically noted its observation of Chavi’s erratic demeanor, incongruent behavior, and odd stories at the termination hearing and throughout the case. It further provided that it had “observed no progress or benefit from any service in which [Chavi] may be participating.” On this record, we conclude that the trial court did not clearly err in finding that these statutory grounds existed. We also agree with counsel’s assertion that there can be no meritorious challenge to the trial court’s finding that termination was in the best interest of the children. In determining the best interest of the juvenile, a trial court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep’t of Human Servs., 2011 Ark. 182, 880 S.W.3d 906. Potential harm must be viewed in a forward-looking manner and in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 7S.W.3d 722. The trial court is not required to find that actual harm would result or to identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 387, 285 S.W.3d 277 (2008). Here, the court expressed no confidence that Chavi could consistently and safely provide for the children given her continued displays of paranoia, fixation, combativeness, and emotional volatility. It specifically found that establishing a goal of placement or continued contact with Chavi would result in harm to the children for those reasons. There was also evidence that the children are adoptable. Based on the evidence presented, the trial court’s finding that termination of Chavi’s parental rights was in the best interest of the children was not clearly erroneous. Chavi’s counsel also included in her brief a discussion of two rulings adverse to Chavi and explained why they would not support a meritorious appeal. The first concerned trial counsel’s objection to the introduction of the green card showing proof of service of the petition for termination. Counsel objected because the green card had “not [been] authenticated” by the signing witness; however, at trial Chavi indicated it was her signature on the green card, which is sufficient to satisfy the admissibility requirements of Arkansas Rule of Evidence 901. The second ruling involves an objection by Chavi’s trial counsel when Chavi was asked if she believed DHS was corrupt in some way. Trial counsel objected, because the question called for speculation. The court overruled the objection because it did not think that expressing a currently held belief amounted to speculation. We agree with counsel that this did not constitute reversible error. IsAfter reviewing the record and counsel’s brief, we agree with counsel that an appeal from the trial court’s decision to terminate Chavi’s rights would be wholly without merit. We are satisfied counsel has complied with the requirements of Linker-Flores, supra, and this court’s rules, and none of the adverse rulings provide a meritorious basis for reversal. Affirmed; motion to withdraw granted. Abramson and Brown, JJ., agree. . H.A.’s father’s parental rights were not terminated at this proceeding.

Josephine Linker Hart, Associate Justice | Appellant Rickie Green appeals from an order of the Lonoke County Circuit Court denying his pro se petition to correct an illegal sentence. In addition to asserting that the circuit court’s ruling was error, Green also filed a motion for appointment of counsel. We reverse and remand. Green entered a plea of guilty to conspiracy to commit residential burglary and theft of property. He received identical sentences of 240 months for each offense; 108 months’- imprisonment, with 132 months of the terms suspended. Green alleged in- his petition that his sentence was illegal on its face under section 16-90-111 (Repl. 2016). He reasoned that the sentence stated on the judgment was calculated based on the assumption that he was a habitual offender, but the judgment did not reflect that he was sentenced as a | ghabitual offender. He further asserted that the ADC had erroneously determined that he was required by statute to serve 100 percent of the 108-month term imposed without the possibility of parole. A circuit court’s decision to deny relief under section 16-90-111 will not be overturned unless that decision is clearly . erroneous. Section 16-90-lll(a) allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal presents an issue of subject-matter jurisdiction. Green v. State, 2016 Ark. 386, 502 S.W.3d 524. We note that the felony, information filed in Green’s case, stated that he was charged as a habitual offender with convictions for four or more prior felony offenses. Furthermore, the plea agreement set out-that Green was pleading guilty as a habitual offender. When Green entered his plea, the court asked whether he understood that he was béing “sentenced under a large habitual” and whether he had read, understood, and signed the plea agreement. Green replied in the ■ affirmative. Nevertheless, the judgment that was entered after he pleaded guilty, a copy of which appears in the record in this appeal, did not have a checkmark in the box on the judgment to indicates that he was sentenced as a habitual offender. | sConspiracy to commit residential burglary is a class C felony; See Ark. Code Ann. § 5-39-201(a) (Repl. 2013) (residential burglary is a Class B felony; pui'suant to Ark. Code Ann. § 5-3-404(3); criminal conspiracy is a Class C felony if the object of the conspiracy is a Class B felony). Theft of property valued at between $1000 and $6000 is a Class D felony, A Class D felony carries a maximum penalty of 72 months’ imprisonment. Ark. Code Ann. § 5-4-401(a)(5) (Repl. 2013). As stated, the judgment reflects that Green was sentenced to 240 months’ imprisonment for each offense. We note first that even if Green was sentenced as a habitual offender for the Class D felony, the aggregate sentence imposed for that offense could not exceed 180 months. Ark. Code Ann, § 5-4-501(b)(2)(E) (Repl. 2013). Accordingly, this sentence, by any calculation, exceeded the statutory maximum. Regarding the Class C felony, unless Green was sentenced as-a habitual offender, which the sentencing order failed to indicate, his sentence exceeded the statutory maximum of 120 months’ imprisonment. A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Bell v. State. 2017 Ark. 231, 522 S.W.3d 788. Accordingly, the circuit court clearly erred when it denied Green’s petition to correct his illegal sentence. Because the circuit court clearly erred, we reverse and remand this case to the circuit court for further proceedings consistent with this opinion. Upon remand, the circuit court has full authority to correct Mr. Green’s illegal sentence; Ark. Code Ann. § .16-90-111. The circuit court may either reduce Mr. Green’s sentence to no more than the statutory máximums for each offense, or indicate on the sentencing order that he was sentenced as a | ¿habitual offender and adjust the aggregate sentence for the theft of property conviction. Such fact-finding is outside of this court’s appellate jurisdiction. See Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 227-28, 729 S.W.2d 156. 292 Ark. 225, 729 S.W.2d 156, 157 (1987) (holding “we are an appellate court; we do not retry cases.”) Green argues that the ADC has misapplied certain statutes in calculating whether he is eligible for parole: The claim is not a ground for relief under section 16-90-111 because the ADC’s determination concerning parole eligibility does not call into question the legality of the original judgment in the case. Finally, we deny Green’s motion for appointment of counsel. Reversed and remanded; motion denied. , The time limitations on filing a petition under section 16—90—111(a)(b)(l) alleging that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c) (2016). The portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Gardner v. State, 2017 Ark. 230, 2017 WL 3300528.

PHILLIP T. WHITEAKER, Judge |Appellant Danielle Knight appeals from the order of the Clay County Circuit Court that terminated her parental rights to her son, S.L. On appeal, she challenges the circuit court’s finding as to one of the two statutory grounds for termination; in addition, she argues that the circuit court erred in its finding of potential harm to the child if custody were returned to her. For the reasons set forth below, we affirm. I. Background On January 6, 2016, Knight was arrested following a search of her house that revealed methamphetamine, drug paraphernalia, weapons, and an active pipe bomb. S.L. was present in the home at the time of the arrest. The Arkansas Department of Human Services (DHS) took custody of S.L. based on this arrest and because there was no other caretaker for S.L. at |2the time. S.L. was adjudicated dependent-neglected approximately a month later based on Knight’s parental unfitness due to drug use. After adjudication, the circuit court found that Knight had only partially complied with the case plan. The court found that Knight had not remained drug free. Specifically, she tested positive for methamphetamine in May 2016, failed to submit to drug 'testing in December 2016, and tested positive again for drugs in January 2017. The court further found that Knight did not obtain and maintain stable employment throughout the course of the proceedings, and she failed to submit to a psychological evaluation. Additionally, the court found that Knight had pled guilty to drug charges. The court accordingly authorized DHS to file a petition for termination of parental rights. DHS filed a petition to terminate Knight’s parental rights alleging, as statutory grounds for termination, twelve months failure to remedy, see Ark. Code Ann. § 9-27-341(b)(3)(B)(i)foJ (Repl. 2015), and subsequent other factors,, see Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(W. After a hearing, the circuit court entered an order finding that DHS had proved both grounds and that termination of Knight’s parental rights was in S.L.’s best interest. Knight, filed a timely notice of appeal from that order and now argues that the circuit court erred in finding that DHS proved the “failure to remedy” ground and in finding that S.L. would be at. risk of potential harm if returned to her custody. I all Stmdard of Review We review termination-of-parental-rights cases de novo but will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t of Human Servs., 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court’s personal observations. Jackson v. Ark Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122. The termination of parental rights is an extreme remedy and in derogation of the natural-rights of the parents. Fox v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a heavy burden placed on the party seeking- to terminate the relationship. Id. The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. T.J. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). ¡¿III. Statutory Grounds The circuit court . terminated Knight’s parental rights based on two statutory grounds: subsequent other factors, see Ark. Code Ann. § 9-27-3419(b)(3)(B)(vii)(a), and twelve months failure to remedy, see Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(U). Under Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), DHS must present clear and convincing evidence that a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of. the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. On appeal, Knight argues that the circuit court erred in finding that she failed to remedy the conditions that, caused the removal of S.L.— specifically, her drug usage. It is unnecessary for us to address the merits of her argument, however. Only one ground is necessary to terminate parental rights, and we have held that when an appellant fails to attack the circuit court’s independent, alternative basis for its ruling, we will not reverse. Lowery v. Ark. Dep’t of Human Servs., 2012 Ark. App. 478, at 5-6, 2012 WL 4009601; see also Anderson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 428, at 9, 501 S.W.3d 831, 836 (“When a parent does not challenge all of the circuit court’s findings as to statutory grounds for termination, an unchallenged ground is sufficient to affirm the termination order.”). Knight’s sole argument on appeal addresses only the “failure, to remedy” finding by the circuit court; she fails to separately challenge the circuit court’s findings as to the “subsequent other factors” ground. We therefore affirm on this point. IfilV. Best Interest Knight also challenges the circuit court’s finding that termination was in S.L.’s best interest. The court determines whether termination is in a juvenile’s best interest by considering two factors: (1) the likelihood that the juvenile will be adopted if parental rights are terminated, and (2) the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3) (A)(i) — (ii) , Knight specifically argues that the circuit court erred'in finding that there was a risk of potential harm if the child were returned to her custody. In considering potential harm caused by returning the child to the parent, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Gulley v. Ark. Dep’t of Human Servs., 2016 Ark. App. 367, 498 S.W.3d 754; Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must .be viewed in a forward-looking manner and in broad terms, in-eluding the harm the child suffers from the lack of the stability the child would otherwise receive in a permanent home. Collins v. Ark. Dep’t of Human Servs., 2013 Ark. App. 90, 2013 WL 546940. This court has consistently noted that continuing drug use demonstrates potential harm, to children, See Eldredge v. Ark. Dep’t of Human Servs., 2014 Ark. App, 385, 2014 WL 2807960; Davis v. Ark. Dep’t of Human Servs,, 2009 Ark. App. 815, 370 S.W.3d 283; Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780. (2004). The evidence introduced at the termination hearing supports,the circuit court’s potential-harm finding based on Knight’s continued drug usage. Throughout the course of | Bthis proceeding, Knight never once provided a clean drug screen. She attempted to attribute this failure to her living arrangements. She testified that she chose to move to Illinois after DHS removed her son from her custody in order to attend a thirty-day inpatient treatment program, which she completed. In addition, she maintained that her drug screens were positive only because she was unable to provide a urine sample for testing purposes. Knight attributed this “inability” to provide a sample on travel complications. She said she had to drive three hours from Illinois, where she still lived, had to stop to use the restroom during the drive, and was thus unable to provide a sample. Knight admitted, however, that she had discussed the complications of her move to Illinois with her. caseworker. DHS explained to Knight on multiple occasions how important it was for her to stay in Arkansas and receive services, but she left anyway. With respect to drug-screening services offered by DHS, the department contended that it offered Knight a hair-follicle test in June 2016, but Knight did not respond to the offer. Knight agreed that she did not submit to a ham-follicle test, but she claimed it was because DHS did not give her a date or time for the testing. The court explicitly found that Knight’s testimony about her refusal to submit to drug screens was not credible. This court will not substitute its own judgment or second-guess the credibility determinations made by the circuit court. Hambrick v. Ark. Dep’t of Human Servs., 2016 Ark. App. 458, at 12, 503 S.W.3d 134, 140; Bowie v. Ark. Dep’t of Human Servs., 2013 Ark. App. 279, 427 S.W.3d 728. In its order terminating Knight’s parental rights, the circuit court also found that there was a risk of potential harm if S.L. were returned to Knight’s custody based on her “lack of | knowledge about [S.L.’s] special needs.” Knight acknowledged that her son had behavioral issues, but she said that she did not know that he had special needs or that he attended a specialized daycare to attend to those needs. Based on this acknowledgment, we cannot say that the court was clearly erroneous when it stated, “The court finds that Mrs, Knight lacks stability, which is important due to the special needs of [S.L.].” Accordingly, we affirm the circuit court’s potential-harm finding and its determination that termination of Knight’s parental rights was in S.L.’s best interest. Affirmed. Abramson and Gladwin, JJ., agree. . DHS also pled the "aggravated circumstances” ground, see Ark, Code Ann. § 9-27-341(b)(3)(B)(ix)(aj, in there was little likelihood of successfully reunification. The circuit court did not base termination on this statutory ground, however, finding that DHS had failed to prove it. . Knight does not challenge the circuit court’s finding that S.L. was adoptable,

ROBERT J. GLADWIN, Judge 1 ¶Appellant, Darryl Talley, appeals his convictions by the Pulaski County Circuit Court on charges of robbery, theft of property, and employment of a firearm to commit aggravated robbery, for which he received an aggregate sentence of fourteen years’ imprisonment. Appellant argues that the trial court erred in denying his request to represent himself at trial and, as a procedural matter, that his sentencing order erroneously reflects that he was convicted of a Class B felony rather than a Class C felony, theft of property. We affirm appellant’s convictions and remand the case for the limited purpose of allowing the trial court to correct the error in the sentencing order. On an initial procedural note, the parties agree that there is an error that needs to be corrected on the sentencing order. Appellant was charged with, among other charges, theft of property with a value of $25,000 or more, a Class B felony offense, in violation of Arkansas Code Annotated section 5 — 86—103(b)(1)(A) (Supp. 2011). The trial court found |ahim guilty of the lesser-included offense of theft of property with a value of less than $25,000 but more than $5,000. It is clear from the transcript that appellant was convicted of the lesser-included Class C felony, theft of property, but the sentencing order reflects a checkmark beside the offense classification “B” for the theft-of-property conviction. The ten-year sentence indicated on the sentencing order is consistent with the sentence announced by the trial court in open court and is within the statutory range for a Class C felony offense. Because the checkmark beside classification “B” rather than “C” appears to be simply a clerical error, we hold that this is the type of error that- trial court can correct at any time by entering an amended sentencing order nunc pro tunc. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). We also note that the sentencing order erroneously indicates that appellant was sentenced to an additional term of sus pended imposition of sentence for the theft-of-property conviction. Like the checkmark on offense classification - “B”, this is a clerical error. Accordingly, we remand for the limited purpose of allowing the trial court to correct these errors. See Pascuzzi v. State, 2016 Ark. App. 213, at 1, n.2, 489 S.W.3d 709, 710, n.2. L Facts and Procedural History On May 7, -2013, the State filed an amended felony information against appellant, alleging in relevant part that on or about October 7, 2011, appellant committed against Charleston Brown two felony offenses; (1) the Class Y felony of aggravated robbery; and h(2) Class B felony theft of property. In the information, the State, also alleged that because appellant employed a firearm to commit a felony, any sentence of imprisonment imposed on him for committing that felony should be enhanced pursuant to Ark. Code Ann. § 16-90-120(a)-(b) (Repl. 2015). :■ Appellant’s bench trial was held on May 2, 2016. Appellant preserved the issue now before us by repeatedly asking, at the beginning of his trial, that he be allowed to represent himself and be his own defense counsel. The trial court denied appellant’s repeated requests to represent himself at trial and- act as. his own lawyer, and the trial court found appellant guilty of having committed aggravated robbery, Class C felony theft ■ of property, ■ and of having used a firearm to commit aggravated robbery. At the sentencing hearing held on June 29, 2016, the trial court sentenced appellant to an aggregate sentence of fourteen years’ imprisonment pursuant to sentencing .orders filed on July 6, 2016. Appel- • lant filed a timely notice of appeal on August 6,2016. II, Standard of Review and Applicable Law A defendant in a criminal case has a Sixth and Fourteenth Amendment right to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant.in a criminal case also has the right to represent himself at trial and act as his own lawyer pursuant to article 2, section 10 of the Arkansas Constitution. Ivory v. State, 2017 Ark. App. 269, 520 S.W.3d 729. Whether a trial court erred in denying a defendant’s request to represent himself at trial is an issue of law, State v. Blanchard, 236 Or.App. 472, 236 P.3d 845, 848 (2010). This court reviews issues of law de novo. Howard v. State, 2010 Ark. App. 382, 2010 WL 1790555. IJII. Discussion At the start of appellant’s bench trial, he requested that the trial court allow him to represent himself and act as his own lawyer. After the following colloquy that focused on how much appellant knew about the law and courtroom procedure, the trial court denied appellant’s request; The. Court:. Set for bench trial today. Both sides ready for trial? Defense Counsel: We are, sir. However, the defense, I believe there is a pro se motion my client would like to address to the court before we proceed. The Court: Mr. Talley, good afternoon, sir. Appellant: > I’m revoking him as my public defender— - The Court: On what grounds? Appellant: —and I would like to represent myself. The Court: On what grounds? Appellant: Oh, on what ground? The Court:' Yeah, that’s the question I asked you twice. • Appellant: Because I’m competent to withstand trial. The Court: You aré? Appellant: Yes, I— The Court: Do you know the rules of evidence? Appellant: Yes, sir. The Court: -How far' did you go in school? Appellant: I went — I compl — went all the way in the 12th grade, from 9th to 12th grade, Little Rock Central High. |rThe Court: And what did.you do after school to learn about the law? Appellant: What did I — I’m hot schooled in law. The Court: What do you know about the rules of evidence? Appellant: Yes, sir. The Court: What do you know about the rules of evidence? Appellant: I know that the evidence must be brung forward if it’s requested by law before I proceed in any of my cases or take any pleas; And I asked the gentleman a couple of times — that there was revoked. It’s like they’re using scare tactics trying to get. me to cop pleas and I’m steady telling them no, I’m not waiving any of my rights. The Court: Okay. I’m not asking you about whether you’re waiving any of your rights. I want to know what do you know about the law that governs what is admitted into evidence and what cannot be admitted into evidence. Appellant: I know the basic rule of affidavit. The Court: Okay. Tell — rule of affidavits? ... Appellant: Yes. The Court: Okay. Do you know anything about the rules of chain of custody? , • Appellant: Chain, of custody? The Court: Yes, sir. Appellant: I don’t have any idea 'what— ■ The Court: Okay, Appellant: Okay. The Court: I’m "looking at in these charges, one of them is a Class Y Felo.ny, Do you know what the charge— range of punishment is for a Class Y Felony? ■ Appellant: Yes, sir. The Court: What is it? I (Appellant: Up to forty years or life. The Court: And do you know what other charges you have? Appellant: I think it was for a theffiby receiving for a stolen car, stolen gun, which I had absolutely nothing to do with— The Court: No, no, no, no, no. I’m not asking— Appellant: Oh, okay. The Court: —you to cop a plea: I’m asking you to tell me what you know, okay? Appellant: Oh, that’s what' I — well, yeah, it’s right — as far as right now, Í know they were trying to charge me with a stolen car and a stolen firearm. The Court: What’s the nature of your defense? Appellant: What’s my nature of. defense? The Court: Yeah, what is your defense to these charges? Appellant: What I filed for the chambers to the judge chamber, that’s all— The Court: No, no. Appellant: —that I electronically filed April 29th. And I also filed an affidavit of truth this morning, May 2nd, that I have put on the court’s record. The Court: Okay. Pretend that I just now asked you a question that requires you to tell me what you have in your head as opposed to what I can read. Pretend that I’m waiting for you to answer the question I just asked you. Appellant: You asked me what I’m going to use for my defense? The Court: What is your defense? Appellant: My counsel. The Court: No, no. Your own counsel is what you want. I want to know what is the legal basis for your defense. Appellant: My legal defense is what I filed. | 7The Court: Do you know what alternative defenses you might assert under the law? Appellant: I have a right to my own private counsel. The Court: No. Excuse me. Let me explain to you why I’m having this conversation with you. You have the right in a criminal charge for two things. First of all, you have the right to decide whether to plead guilty or not. Appellant: Right. The Court: Okay. Appellant: Yes. The Court: And secondly, you have the right to choose your lawyer— Appellant: Right, that’s — okay. The Court: If you opt — if you are unable to afford a lawyer, the court has an obligation to appoint a lawyer for you. If you assert that you want to represent yourself, then I have a responsibility to determine whether or not you are competent to defend yourself. Appellant: That’s right. The Court: In order for me to decide that, I’ve got to weigh the charges you face and your knowledge of the law. Appellant: Yes, sir. The Court: So the reason I’m asking you these questions is not to play games with you or try to embarrass you, I’m trying to determine whether or not you are competent to do what a lawyer would have to do in order to provide you with an adequate defense because under the law you have a constitutional right to what we call effective counsel. Appellant: Right. The Court: And I do not have the right to ■ allow you to ineffectively represent yourself— Appellant: Right. |rThe Court: —any more than I have the right to allow a lawyer to provide you with ineffective counsel. If 1 do not believe that you are effect — can mount an effective representation, I do not have to listen to you say you want to revoke your lawyer. I can say, your request to revoke counsel is denied. And that’s why I’m having this inquiry. Appellant: Yes. The Court: Okay. So let’s start over. We can agree that you have no legal training? Appellant: No, I’m not schooled in law. The Court: Okay. That’s what I just told you. Appellant: Yes. The Court: We agree to that, right? Appellant: Yes. The Court: We agree that you are charged with a Class Y felony, which is the highest range of punishment of felo ny short of capital murder, which is life without parole, right? Appellant: Yes. I understand. The Court: Because Class Y is ten to forty or life, right? Appellant: Yes. The Court: We agree that you do not know anything about the alternative defenses that can be asserted to the charges you face? Appellant: Yes, I do. I do have access to my private — my own private attorney or whatever — my own legal counsel. The Court: I’m still trying to wait until you hear — say at least one word that would constitute a defense to these charges. I know you’re pleading not guilty, but what — -as a judge, I have to know and the prosecution is entitled to know the nature of your defense. Appellant: I want you guys to prove their case, bring forth their evidence, which I put in — I filed my motion for discovery and my preservation of evidence, and it — and it needs to be answered. |9The Court: [Defense counsel], are you ready for trial? Defense Counsel: Yes. The Court: Nature of defense? Defense Counsel: Your Honor, it’ll be general denial. The Court: How many witnesses] do you have? Defense Counsel: Only the defendant if he chooses to testify. The Court: Mr. Talley, based upon the inquiry the Court has undertaken, the Court finds that you do not have the requisite knowledge in the law and the nature of defense or in the kind of decision-making that would be necessary in order to assert an adequate representation of yourself. In order to protect your constitutional rights, the Court is going to deny your request to dismiss your counsel. [Defense counsel], you are continually to be engaged and to maintain the defense on behalf of Mr. Talley. Mr. Talley, do you have anything else you need to say before we move on? Appellant: Yes, sir. Out of my due process of law rights, that’s what I was saying, like I need everything that’s been filed into THE COURT, I need a copy of everything that was filed to THE COURT in my possession. I don’t have motions, discoveries or any of this, so that’s why I filed my motion for discovery and my preservation of evidence. The Court: [Defense counsel]? Defense Counsel: Yes. The Court: Has discovery been exchanged? Defense Counsel: Your Honor, I have gone over all the discovery with the defendant, both when he was in G-Unit at the Pulaski County Jail, in my office and in numerous visits here to the courtroom. The Court: Has the State produced discovery requested by the defense? Deputy Prosecuting Attorney: We have. The Court: And when was that done? And I’m doing all this so there will be a record because Mr. Talley, in case you disagree with my decision and you want to |intake an appeal, we’ll have a record so we’ll know that there was a defense motion to produce discovery. There will be a response to the defense motion to produce. And I want to make sure that’s all in the record. Defense Counsel: Your Honor, I may have misstated my answer to your question. If discovery has been exchanged, I received discovery in 1366 in 2013 when I was appointed to represent Mr. Talley at that time. Marion Humphrey was private counsel for the defendant in- 11-3766. He was— The Court: I can-help you. According to my notes, public defender was appointed on November 7, 2011, in case 2011-3766. Public defender was relieved and Marion Humphrey was appointed counsel for the' defendant on February 6, 2012. - Mr. Humphrey represented the defendant until he moved-to withdraw November 5, 2013. A public defender was reappointed on that -date. Public ■ defender has remained appointed counsel for Mr. Talley since November 5, 2013, in 2011-3766. Defense Counsel: Your Honor, I do remember receiving a discovery packet from [former defense counsel] on the date that he was released. The Court: In case 2013-0066, public defender was appointed on April 15, 2013. That’s you, right? Defense Counsel: Yes, sir. The Court: [Deputy prosecuting attorney], when was discovery produced in that case? Deputy Prosecuting Attorney: Your Honor, I don’t have a date that it was actually sent. I have that we scanned it — our case file in electronically on January 9, 2013, and it was provided shortly thereafter, discovery was filed by the defense. The Court: [Defense counsel], is there any defense discovery request that is outstanding at this time? Defense Counsel: Nq, there is not. , The Court: Court’s going to deny the motion — the pro se motion of the defendant to relieve counsel, Mr. Talley, would you, please have a seat at counsel table besidé your lawyer. A trial court'must grant a defendant’s request to represent himself at trial if three circumstances are present: (1) the defendant’s - request to waive his right to counsel and represent himself must be unequivocal and timely asserted; (2) the defendant makes a In knowing and intelligent waiver- of his constitutional right to be represented by counsel; (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of his trial. Reed v. State, 2017 Ark. 246, 524 S.W.3d 929; Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005). The trial court must establish on the record that the defendant is making a knowing and intelligent waiver of his right to counsel by engaging a colloquy with the defendant that is sufficient to show that the defendant is aware of his right to counsel and is aware of the danger in representing himself. Pierce, supra; Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). The trial court must question the defendant to make certain that he or she knows the following information: (1) that the defendant is entitled to an attorney; (2) that the defendant can have an attorney to represent him at trial even if he cannot afford an attorney; (3) the advantages of being represented during trial by an attorney; (4) the drawbacks of not being represented at trial by an attorney. Bledsoe, supra. A defendant’s lack of technical legal knowledge is not relevant to an assessment of whether he has made a knowing and intelligent waiver of his right to-counsel; Whitlow v. State, 2016 Ark. App. 510, 506 S.W.3d 272. If a defendant’s request to represent himself at trial is proper, a trial court’s failure to conduct a sufficient Faretta colloquy is reversible error. Pierce, supra. An erroneous denial of a defendant’s request to represent himself at trial is .not subject to harmless-error review. McKaskle v. Wiggins, 466 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Appellant argues that his request to represent himself at trial was made in a timely manner and was unequivocal. He points out that the trial court made no finding that, if allowed to represent himself at trial, appellant would disrupt the proceedings or that his 112request to represent himself was untimely. Appellant acknowledges that the trial court did have a colloquy with him, but notes that during such, the trial court focused on whether he had the technical legal knowledge to represent himself at trial. At one point, the trial court specifically observed, “[T]he Court finds that you do not have the requisite knowledge in the law and the nature of defense or in the kind of decision-making that would be necessary to assert an adequate representation of yourself.” Because the trial court’s colloquy with appellant focused solely on his inability to act as his own lawyer, appellant urges that the trial court committed reversible error in denying his request to represent himself at trial. Wé agree with appellant’s claim that the trial court erroneously relied on a flawed Faretta inquiry in making its decision; however, that does not end our inquiry. The State discusses two reasons, notwithstanding appellant’s challenge to the trial court’s Faretta inquiry, in support of its argument that the trial court did not err in its determination: (1) appellant’s history of behavior 'aimed at delaying and disrupting the orderly, efficient, and effective administration throughout the proceedings; and (2) appellant’s failure to make an unequivocal request to represent himself. ■ In Faretta, supra, the United States Supreme Court held that an accused generally. has a right to defend himself under the Sixth Amendment, because it is the defendant. who will suffer the consequences if the defense fails. See id at 819-20, 95 S.Ct. 2525. That right is not, however, without some limit. The Faretta court clearly explained that although a defendant need not have the skill and experience of a lawyer to competently and intelligently choose self-representation, he “should be made aware of the dangers and disadvantages of self] -^representation so that the record will establish that he knows what he is doing and his choice is made with open eyes.” Id. at 835, 95 S.Ct. 2525. Additionally, where a defendant seeks to have another attorney represent him, his request to proceed pro se is not unequivocal, and the analysis in Faretta and its progeny does not apply. Whitlow, supra. Our supreme court has held that “the right to counsel may not be manipulated or subverted to obstruct the orderly procedures of THE COURT, or to interfere with the fair, efficient, and effective administration of justice, particularly when a change of counsel is sought on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel.” Whitlow, 2016 Ark. App. 510, at 7-8, 506 S.W.3d at 276. And this court has explained that “[t]he constitutional right to counsel is a shield, not a sword, and a defendant may not manipulate [the] right for the purpose of delaying trial or playing ‘cat-and-mouse’ with THE COURT.” Coakes v. State, 2014 Ark. App. 298, at 5 n.1, 2014 WL 2011804; see also Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525 (noting that the trial court may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct); Brown v. Gibson, 2012 Ark. 285, 423 S.W.3d 34 (holding that a defendant’s pro se status may be terminated if he or she has demonstrated disruptive behavior or used the right as a tactic for delay, disruption, distortion of the system, or manipulation of the trial process); Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989) (stating that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of THE COURT to command an orderly, efficient, and effective administration of justice). |uWe take this opportunity to reiterate that the right to represent oneself “is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525. The record in this case reflects that, on November 11, 2011, the public defender’s office was appointed to represent appellant. On February 6, 2012, the public defender’s office was relieved as counsel, at least as to some charges against appellant, and former Circuit Judge Marion Humphrey entered an appearance on appellant’s behalf. Despite being represented by counsel, appellant filed several pro se filings on November 5, 2013, March 30, 2015, September 14, 2015, January 11, 2016, and May 4, 2016. On November 5, 2013, the date of the first trial setting, Mr. Humphrey brought to the trial court’s attention one such pro se filing. After the trial court stated that it would not entertain a pro se motion unless it was adopted by counsel, and after counsel declined to adopt the pro se filing, appellant stated, “I’ll represent myself. I don’t have a problem.” Mr. Humphrey then moved for and was granted permission to withdraw. The trial court then began to inquire about appellant’s request to represent himself. Appellant stated that he understood that under the Sixth Amendment, he had a right to counsel, but denied that he was waiving that right. He claimed to be a “sovereign citizen” and insisted that he did not understand the charges against him or the State’s right to proceed in the matter. Even after the charges had been read and explained to him, appellant stated that he did not understand “a single charge against him.” | ¾¡After appellant denied waiving his right to counsel and stating that he did not understand the charges against him, the trial court denied appellant’s request to proceed pro se and again appointed the public defender’s office to represent him. Appellant, immediately thereafter, objected to the public defender’s representation, refused to sign his notice sheet, and exploded into an emotional outburst that runs on for eleven pages of the trial transcript and includes the following examples of statements that, among others, appellant expressed during his outburst: Appellant: I swear to God, man. This whole courthouse is going to be— Appellant: He ain’t representing me. Why he trying to represent me? No, no. I’m not a party. Appellant: Man, this is bullshit. All of y’all are going to have charges. Appellant: Yeah, that’s what I’m saying. Now, that’s illegal time I did on this one. That’s what I’m saying, he’s taking me into custody and you ain’t even representing me, brother. That’s what I’m trying to say. I want to try to step in. I don’t matter what you’re talking about, brother. Real talk. I swear to God, y’all better get this sh_in order. Except for me, everybody rules their goddamn charges. That’s what I’m saying, you’re not representing me, Mr. David Sud-duth, so you need to withdraw because I ain’t going into custody. What the f_k am I going into custody for? Appellant: You can’t represent me. What’s your nationality? Are you — you are a European (unintelligible) occupying the land of North America, which is — can you bring your nationality forward for' the record? Your nationality, Ireland. That’s what I’m saying. That needs to be stated for the record. It don’t matter what they charge me with, it’s criminal. They’ve got to produce their victim, you know what I’m saying? This is Penal Code 16.1 know. He’s just an officer of THE COURT, but I know what I’m talking about in the law. So they are violating this. They got you to put me in handcuffs. Really, I consented to it. I ain’t trying to fight, but I have a right to protect myself. I’m saying what are they taking me into custody for? That’s what I’m saying. I’m not trying to — if this is a way to try to get a mental evaluation — I did. Yeah, they taking me into custody illegally. I’m trying to represent myself in court as a prophet of the son. I need to talk to the man, they are trying to take me in for a mental evaluation, which I don’t agree to, so they are violating constitutional law and international law. | ¶f,Based on appellant’s behavior in the courtroom during the hearing, a second Act 3 evaluation was requested. At a hearing on March 30, 2015, appellant’s appointed counsel brought to the trial court’s attention another request by appellant to represent himself. When asked by the trial court whether he wished to represent himself, appellant stated that he “would be proceeding in propria persona.” The charges against him were read, and appellant once again insisted that he did not understand the charges or the penalty ranges. The trial court denied appellant’s request, basing its decision, at least in part, on appellant’s failure to follow court rules and procedure, including being habitually late for court. At a hearing on September 14, 2015, appellant, through his appointed counsel, yet again requested to represent himself. The trial court responded to the request, as follows: The Court: I believe we went — we’ve gone through that. He’s not aware of the process— Defense Counsel: We have. The Court: —and doesn’t know what is going on, if I’m not mistaken, so I’m not going to allow him to practice — practice law. Defense Counsel: Yes, sir. The Court: He doesn’t know how to contain himself or the basis for the allegations or anything, so. At a hearing on January 11, 2016, appellant’s counsel brought to the trial court’s attention yet another pro se motion by appellant — this time, indicating appellant’s intention to hire a private attorney. According to appellant’s appointed counsel, appellant had made allegations that his appointed counsel was involved in human trafficking. The trial court | ^instructed appellant to hire an attorney before the trial date on May 2, 2016, and that he would not be granting another continuance. Appellant appeared with his appointed counsel, Mr. Sudduth, ready for trial on May 2, 2016, and addressed the trial court pro se, stating that he wished to revoke Mr. Sudduth as his public defender and represent himself. During a colloquy between appellant and the trial court, the trial court asked appellant what his defense was, to which appellant, responded, “My counsel.” Appellant also stated that he had “access to my private — my own private attorney or whatever — my own legal counsel.” The trial court ultimately denied appellant’s request to dismiss his appointed counsel, and Mr. Sud-duth represented appellant at trial From the outset and continuing through the pendency of this case, appellant repeatedly displayed an intent to delay and frustrate the orderly and effective administration of justice. As early as his arrest in October 2011, he claimed to be a “sovereign citizen” and refused to provide any identifying information. For more than four years, and throughout the entire pretrial process, he manipulated both his right to counsel and his right to self-representation in order to delay and obstruct the procedures of the trial court. He refused to follow the rules and procedures of the trial court. He filed pro se pleadings despite being represented by counsel, and he continued to do so even after several requests for self-representation had* been denied, and after having been warned by the trial court to follow the rules. He displayed emotional and disrespectful outbursts in the . courtroom. He requested to represent himself, yet denied that he was waiving his right to : counsel. He asked |1Bto hire a private attorney, asserting unfounded allegations that his appointed counsel was involved in human trafficking. We agree with the trial court’s assertion that appellant “[did not] know how to contain himself[.]” As further evidence, even after his trial in May 2016, appellant refused to sign a notice of his sentencing hearing date, claimed he was “a natural person ... not subject to any of your corporate states” and “not a United States Citizen,” and expressed further disrespect to the trial court, interrupting the trial court’s; comments with, “I don’t give a damn, brother.” Because appellant was not “able and willing to abide by the rules of procedure and courtroom protocol,” see Gilbert v. State, 282 Ark. 504, 505-06, 669 S.W.2d 454, 456 (1984), we affirm. Furthermore, we hold that appellant’s request to represent himself was not unequivocal. With-his first request for self-representation, appellant altogether denied that he was waiving the right to counsel. In later requests, he stated only that he was “proceeding in propria persona,” yet not waiving any rights. Shortly before trial, he requested to hire a private attorney, and then on the day of trial, and with regard to a new request to represent himself, he stated that he had access to a private attorney. Because his request to represent himself was' not' unequivocal, Faretta and its progeny do not apply. Whitlow, supra. Affirmed; remanded for correction. Harrison and Klappenbach, JJ., agree. , For the aggravated-robbery conviction, appellant was sentenced to a term of ten years in the' Arkansas Department' of Correction (ADC), With a four-year firearm enhancement, and to - an additional. seven-year suspended imposition of sentence. For the theft-of-property conviction, he was sentenced to a term of ten years in the ADC to run concurrently with the aggravated-robbery sentence. . The public defender’s office apparently remained appointed to represent appellant on charges filed in a separate case number.

PHILLIP T. WHITEAKER, Judge | Appellant Trent Kimbrell contends that the circuit court erred in rejecting his challenges to the constitutionality of Arkansas Code Annotated section 5-73-103 and Arkansas Code Annotated section 16-93-303. We affirm. " I. Procedural Background Kimbrell previously appealed the decision of the Polk County Circuit Court that denied his motion to dismiss a charge of possession of firearms by certain persons. We affirmed the circuit court in Kimbrell v. State, 2016 Ark. App. 17, 480 S.W.3d 206 (Kimbrell I). That opinion sets forth the facts in detail, so we need not recite them in their entirety here. We will provide only a summary for purposes of this opinion. Kimbrell entered a plea of no contest to one count of conspiracy to deliver a controlled substance in January 1995. At that time, he was placed on four years’ probation | pursuant to Act 346 of 1975, which provides for discharge and dismissal opportunities upon fulfillment of the terms and conditions of probation. In October 1996, the State filed a petition to revoke Kimbrell’s probation, but the record does not reflect that a hearing was ever held on the State’s petition. In January 1999, the Polk County Circuit Court entered an “Order to Waive Supervision Pees” in which it found that Kimbrell had “completed his term of probation” on January 18,1999, but still owed supervision fees. The court waived the balance of the fees, but it did not mention the issue of expungement. In January 2014, the State charged Kimbrell with being a felon in possession of a firearm. Kimbrell moved to dismiss the charge, asserting that his record should have been automatically expunged upon his successful completion of probation in 1999 pursuant to Act 346. Kimbrell also filed a petition to dismiss and seal his 1995 case. The circuit court denied Kim-brell’s motion to dismiss the 2014 charges, disagreeing that Act 346 provided for automatic expungement. The circuit court also denied his petition to dismiss and seal the 1995 case, finding that Kimbrell had tested positive for marijuana during his period of probation, which could have resulted in his probation being revoked. Kimbrell appealed that decision to this court, arguing that (1) at the time of his 1995 guilty plea and sentencing, Arkansas Code Annotated section 16-93-303 provided for automatic expungement, and (2) the court erred in denying Kimbrell’s petition to seal and expunge his record. In Kim-brell I, we agreed with Kimbrell’s first argument and held that at lathe time he was sentenced in 1995, expungement should have occurred automatically upon the fulfillment of the terms and conditions of his probation. Kimbrell I, 2016 Ark. App 17, at 8, 480 S.W.3d at 210. We went on to hold, however, that Kimbrell did not “fulfill the terms and conditions of his probation,” and therefore he was not entitled to such automatic expungement. Id. at 9-10, 480 S.W.3d at 211. We thus affirmed the circuit court’s denial of his motion to dismiss the felon-in-possession charge. Id. at 10-11, 480 S.W.3d at 212. Following our decision in Kimbrell I, Kimbrell filed a motion in the Polk County Circuit Court challenging the constitutionality of Arkansas Code Annotated section 5-73-103 and Arkansas Code Annotated section 16-93-303, arguing that as of the date of his guilty plea, a disposition pursuant to Act 346 did not constitute a sufficient predicate felony conviction under section 5-73-103, as that statute was codified in 1995. He noted that in 1995, section 5-73-103 did not specifically address a disposition under Act 346, and language doing so was not added to section 5-73-103 until well after his 1995 plea. Kimbrell thus asserted that the amendment “added a new requirement of dismissal and ex-pungement under § 16-93-303 in order for a defendant to be entitled to relief from a charge of [section] 5-73-103 which is based on [an] Act 346 disposition.” This new requirement, he contended, constituted an unconstitutional retroactive application of the law against him. After a hearing on Kimbrell’s motion, the circuit court entered an order finding that neither section 5-73-103 nor section 16-93-303 was unconstitutional, either facially or as applied. Following the circuit court’s order, Kimbrell entered a conditional no-contest plea pursuant to Arkansas Rule of Criminal Procedure 24.3(b) to the count of being a felon in) ¿possession of a firearm. Thereafter, the circuit court sentenced him to a suspended imposition of sentence to the Arkansas Departments Correction for a term of forty-eight months. Kimbrell filed a timely notice of appeal and now assigns error to the circuit court’s finding that neither statute is unconstitutional. II. Standard of Review Our supreme court has held that it will review both the circuit court’s interpretation of the constitution as well as issues of statutory interpretation de novo, “because it is for this court to determine the meaning of a statute.” Arnold v. State, 2011 Ark. 395, at 4, 384 S.W.3d 488, 493. In considering the constitutionality of a statute, the appellate courts recognize the existence of a strong presumption that every statute is constitutional. Brown v. State, 2015 Ark. 16, at 6, 454 S.W.3d 226, 231. As the party challenging the legislation, Kim-brell bears the burden of rebutting the statute’s constitutionality. See id. An act should be struck down only when there is a clear incompatibility between the act and the constitution. Id. III. Preliminary Matters As noted above, Kimbrell urges that both section 5-73-103 and section 16-93-303 are unconstitutional as applied to him. Before we can address the merits of his arguments, however, we must address several preliminary matters concerning the degree to which his arguments are properly before us. First, we note and reject the State’s argument that the notice of appeal fails to designate the proper order from which the appeal is taken. Kim-brell’s notice of appeal designates “the order of this court in favor of the State of Arkansas, entered |Bin this case on November 14, 2016.” The State correctly points out that the sentencing order was actually entered on November 18, 2016, and the document entered on November 14 was Kimbrell’s conditional plea. We conclude, however, that this is obviously merely a scrivener’s error. When it is clear which order the appellant is appealing from, given the issues raised in the notice of appeal, an inaccurate date listed for the order appealed from in the notice of appeal is merely a scrivener’s error. Edwards v. State, 2014 Ark. 185, 2014 WL 1673751; Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117. The case on which the State relies, Webb v. State, 94 Ark. App. 234, 228 S.W.3d 527 (2006), is inapposite because there, the appellant expressly appealed from his conditional guilty plea, and the record did not indicate that a judgment and commitment order had ever been entered. That is not the case here. Second, we consider whether Kimbrell may challenge both section 5-73-103 and section 16-93-303 in his appeal from a conditional guilty plea. Arkansas Rule of Criminal Procedure 24.3(b)(iii) provides that in certain circumstances, a defendant may enter a conditional plea of guilty. As is pertinent to the instant case, a defendant may seek review of “an adverse determination of a pretrial motion challenging the constitutionality of the statute defining the offense with which the defendant is charged.” We construe court rules “using the same criteria, including canons of construction, that are used to interpret statutes. A court rule is to be construed just as it reads, giving the words their ordinary and usually accepted meaning in common language.” Laymon v. State, 2015 Ark. 485, at 3, 478 S.W.3d 203, 205. The plain language of Rule 24.3(b)(iii) permits an appeal only from an order denying a “ehallengfe to] the constitutionality of the statute defining the offense imth which the defendant is | charged.” (Emphasis added.) Here, the defendant was charged only with violating Arkansas Code Annotated section 5-73-103. We therefore conclude that on appeal, Kimbrell may only challenge the constitutionality of this statute, and we thus do not consider his arguments as they pertain to section 16-93-303. . IV. Constitutional Arguments We turn now to Kimbrell’s arguments regarding the constitutionality of section 5-73-103. Kimbrell raises three arguments concerning this statute: (1) it constitutes an ex post facto violation; (2) it violates his due-process rights; and (3) it violates his rights under the Second Amendment. Kimbrell failed to develop his due-process and second-amendment arguments before the circuit court, and this failure prevents us from reaching the merits of the arguments on appeal. See Gooch v. State, 2015 Ark. 227, 463 S.W.3d 296. In his motion to the circuit court, his due-process and second-amendment arguments were presented in their entirety as follows: This retroactive ex post facto application of the additional requirement under § 5-73-103 is a violation of Defendant’s Due Process Rights under the Fifth and Fourteenth Amendments and. a violation of his Second Amendment Right to Bear Arms. In his brief on appeal, however, he expands considerably on these arguments. Our supreme court has directed that in criminal eases, issues raised,- including constitutional ones, must be presented to the trial court to preserve them for appeal. Standridge v. State, 357 Ark. 105, 118, 161 S.W.3d 815, 822 (2004). Our supreme court ha’s .stated that the circuit court must have -the benefit of the development of the law by the parties in order to rule Inadequately on the issues. Talbert v. State, 367 Ark. 262, 265, 239 S.W.3d 604, 508 (2006). We will not address an issue that is fully developed for the first time on appeal. Raymond v. State, 354 Ark. 157, 168, 118 S.W.3d 567, 574 (2003). In addition, a party is bound on appeal by the scope of arguments made at trial. Smith v. State, 354 Ark. 226, 242, 118 S.W.3d 542, 551 (2003). Because Kimbrell failed to develop these two constitutional arguments at the circuit court level, we will not consider them on appeal. See Gooch, supra. We therefore consider Kimbrell’s sole constitutional argument that is preserved for our review, which is that the application of the 1995 amendment to Act 346 is an ex post facto violation. Kimbrell admits that in 1995 he entered a no-contest plea to a felony offense. He argues, however, that his 1995 Act 346 disposition cannot constitute “a sufficient predicate felony to serve as the basis for a charge under [section] 5-73-103” for the following two reasons. First, at the 'time of his plea in 1995, Act 346 provided for automatic ex-pungement upon the successful completion of probation and declared that an order of expungement “shall completely exonerate the defendant of any criminal purpose and shall not affect any civil rights or liberties of the defendant.” Ark. Code Áiin. § 16-93-303(b) (1987). Second, in 1995, section 5-73-103 did not “specifically- address whether a disposition pursuant to Act 346 constituted a sufficient predicate felony offense, and to hold that [Kimbrell’s] 1995 Act 346 disposition constituted a sufficient predicate felony under the then-applicable version of [section] 5-73-103 would be by implication, which is contrary to ... case law.” We do not address the specifics of Kim-brell’s ex post facto arguments because we | sconclude that he lacks standing to challenge the constitutionality of section 5-73-103(b)(2). Section 5-73-103, as amended in 1995, provides as follows: (a) Except as provided in subsection (d) of this section or unless authorized by and subject to such conditions as prescribed by the Governor, or his or her designee, or the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives, or other bureau or office designated by the United States Department of Justice, no person shall possess or own any firearm who has been; . (1) Convicted of a felony; (2) Adjudicated mentally ill; or (3) Committed involuntarily to any mental institution.' (b)(1) Except as provided in subdivisions (b)(2) and (3) of this section, a determination by a jury or a court that a person committed a felony constitutes a conviction for purposes of subsection (a) of this section even though the court suspended imposition of sentence or placed the defendant on probation. (2) Subdivision (b)(1) of this section does not apply to a person whose case was dismissed and expunged under § 16-93-301 et seq. or § 16-98-303(g). (Emphasis added.) Thus, for Kimbrell to have standing to attack the constitutionality of section 5-73-103(b)(2), he must be “a person whose case was dismissed and expunged under § 16-93-301 et seq. or § 16-98-303(g).” Kimbrell argues that he is a person whose case was dismissed or expunged under section 16-93-301, because at the time of his 1995 disposition the statute mandated an automatic expungement after the successful' completion of his probation. His argument fails, however. In Kimbrell I, we specifically held that the circuit court did not err in denying Kimbrell’s motion to seal and expunge his record because he did not “fulfill the terms and conditions” of his probation; We further held that “Kim-brell’s 1995 conviction was 'a valid |flbasis for the 2014 felon-in-possession charge.” Kimbrell I, 2016 Ark. App. 17, at 10-11, 480 S.W.3d at 212. Because Kimbrell failed to fulfill the terms and conditions of his probation, his disposition was not expunged. As just explained, the amendment to section 5-73-103(b)(2) does not apply to offenders whose cases were not dismissed and expunged. Because KimbreU’s 1995 plea was never' expunged, he is not among the class of people to whom the amendment applies, and he therefore lacks standing to challenge the constitutionality of section 5-73-103(b)(2). See Jester v. State, 367 Ark. 249, 258, 239 S.W.3d 484, 491 (2006) (“A litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant.” (quoting Ghegan v. Weiss, 338 Ark. 9, 14-15, 991 S.W.2d 536, 539 (1999))). Affirmed. Abramson and Gladwin JJ., agree. . The State subsequently nolle pressed the revocation petition in April 2000.

WAYMOND M. BROWN, Judge |,Appellant Ken Swindle appeals the Benton County Circuit Court’s order dismissing his complaint against appellee State Farm. He contends that the court erred in finding that his claim was barred by res judicata. We agree and reverse and remand. Appellant, an attorney, filed a lawsuit (CV-13-1S01-6) on behalf of Dulce Este-vez in the Benton County Circuit Court and subsequently voluntarily dismissed that case in August 2014. Estevez refiled the lawsuit pro se (CV-15-1692-6) on November 6, 2015. She accepted a settlement offer from State Farm on November 11, 2015, in the amount of $2,000, Estevez filed a petition to determine lien on February 4, 2016. In that petition, she asked the court to determine that appellant’s lien was invalid or that the amount claimed was incorrect. Appellant was notified about the petition via hand delivery and an email. [2He advised the court that he would attend the hearing only if he was made a party or was subpoenaed. The hearing on the petition took place on March 29, 2016. The court filed an order on April 15, 2016, stating in pertinent part: 7. That this case was filed previously as Dulce Estevez v. Phyllis Allard, CV-13-1501-6. That in a telephone conference with the Court on August 12, 2014, Ken Swindle represented that he did not represent the plaintiff in the previous case. Ken Swindle then filed a Motion and Brief to Voluntarily Dismiss, representing he had the authority to dismiss the case, and the case was dismissed on August 13,2014. 8. That according to the plaintiff, she did not give anyone authority to dismiss the case.... 9. That the Court finds that Ken Swindle was given notice of the Petition to Determine Lien, and that a hearing-was being scheduled on the Petition, and.Mr, Swindle neither entered an appearance nor appeared at the hearing. 10. That the Court finds that. Mr. Swindle’s [sic] cannot represent to the court that he does not represent the plaintiff, and then claim an attorney’s lien on a settlement entered into by the plaintiff and defendant. The court, finds that Mr. Swindle’s representation that he did not represent the plaintiff serves as a waiver of any claim for an attorney’s lien. 11. The Court hereby finds that any attorney’s lien claim by Ken Swindle on the settlement in this case is invalid, and that State Farm is hereby ordered to issue a settlement payment to the plaintiff in the amount of $2,000. Appellant filed a complaint against State Farm on March 8, 2016, prior to the hearing on Estevez’s petition, regarding attorney’s fees for a separate client. He amended the complaint on March 28, 2016, to include his claim of an attorney’s 'lien of $800 plus $364.44 in costs in, Estevez’s case. In total, he requested $3,696 for litigation costs, attorney’s fees, punitive damages, and interest associated with the Es-tevez, case. State Farm filed an answer | ato the amended complaint on April 5, 2015, seeking to either have the complaint transferred or dismissed. State Farm filed a motion for judgment on the pleadings and supporting brief on May 2, 2016, contending that appellant’s claim concerning Estevez was barred by issue preclusion because appellant’s lien was declared invalid by an order filed on April 15, 2016. Appellant filed a response and affidavit on May 5, 2016, contending that res judicata was inapplicable because none of the elements of res judicata could be satisfied in this case. Appellant and State Farm subsequently settled the claim concerning the initial client, and a partial order of dismissal with prejudice was filed on November 7, 2016, A hearing took place on January 3, 2017, regarding appellant’s rights to a lien in the Estevez case. The court dismissed appellant’s complaint' against State Farm in- an order filed on January 12, 2017, statihgln pertinent part: Upon consideration of the pleadings, the facts and evidence offered in support thereof, including arguments by Mr. Smiley and Mr. Swindle, this Court finds that the Court in Estevez v. Allard, CV-16-1692-6, had jurisdiction pursuant to Arkansas Code Annotated § 16-22-304(e) and invalidated Mr. Swindle’s attorney’s lien. The appropriate avenue for Mr. Swindle to seek redress would have been to appeal the final order in [that case], which was issued on April 15, 2016. However, Mr. Swindle failed. to appeal the final order in [that case]. Additionally, this Court finds that the doctrine of issue preclusion bars the re-litigation of Mr. Swindle’s attorney’s lien, which was invalidated by the court in Estevez v. Allard, CV-15-1692-6, in conjunction with his alleged representation of Dulce Estevez. Specifically, each element of issue preclusion has . been satisfied. As such, the Court doth find that Defendant’s Motion for Judgment on the Pleadings is hereby granted and as a result, Plaintiffs Motion to Compel is moot. Appellant field a timely notice of appeal on January 15, 2017. This appeal followed. |4We generally review a circuit court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. On those occasions where the circuit court is presented with documents outside the pleadings, we treat the case as an appeal from a summary judgment and view the evidence in the light most favorable to the party opposing the motion. However, when the issues on appeal do not involve factual questions but rather the application of a legal doctrine such as res judicata, we simply determine whether the appellee was entitled to judgment as a matter of law. Res judicata means that “a thing or matter has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Res judicata consists of two facets, one being issue preclusion and the other claim preclusion. Under issue preclusion (collateral estoppel), a decision by a court of competent jurisdiction on matters which were at issue, and which were directly and necessarily adjudicated, bars any further litigation on those issues by the plaintiff or his privies against the defendant or his 1 ¿privies on the same issue. Privity exists when two parties are so identified with one another that they represent the same legal right. We have never required strict privity in the application of res judicata, but instead have supported the idea that there must be a “substantial identity of parties” to apply the doctrine. However, there is no privity when the interests of the parties are in conflict. Here, the court found that res judi-cata based on issue preclusion applied and dismissed appellant’s complaint. We hold that this was in error. Although an attorney-client relationship is usually sufficient to satisfy the privity requirement, we hold that this is not the case when the parties’ interests are adversary to each other. Thus, the trial court erred by finding that res judicata supported dismissal of appellant’s claim against State Farm. We. therefore reverse and remand. Reversed and remanded. Virden and Kláppenbach, JJ., agree. . He also requested a jury trial and all other proper relief. . Appellant filed a motion to compel on January 12, 2016, seeking information on all payments State Farm had made on Estevez’s claim. . Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, 373 S.W.3d 907. . See Bayird v. Floyd, 2009 Ark. 455; 344 S.W.3d 80. . Winrock, supra. . Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269; Winrock, supra. . Baptist Health, supra. . Id. . Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000). . Jayel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006). . Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980); Rose v. Jacobs, 231 Ark. 286, 329 S.W.2d 170 (1959). . See Spears v. State Farm Fire and Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987); State Farm Bureau Cas. Ins. Co. v. Jackson, 262 Ark. 152, 555 S.W.2d 4 (1977). . Jayel, supra.

COURTNEY HUDSON GOODSON, Associate Justice 1’iThis is an appeal from the trial court’s denial of a pro se petition for writ of. habeas corpus filed under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2016). Pending before this court is appellant Edmond McClinton’s pro se motion for leave to add to the addendum of his appeal brief in order to provide the complete medical records pertaining to the victim. |2We need not consider the motion to supplement the addendum because there is clearly no merit to the appeal. An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go forward when it is clear that the appellant could not prevail. Marshall v. State, 2017 Ark. 208, 521 S.W.3d 456. Because a review of the habeas petition and the pertinent records related to McClin-ton’s conviction conclusively demonstrate that he could not prevail, we dismiss the appeal, and the motion seeking to supplement the addendum is therefore moot. MeClinton was convicted by a Jefferson County jury of raping a mentally handicapped sixteen-year-old girl, and he was sentenced as a habitual offender to a term of life imprisonment. We affirmed. MeClinton v. State, 2015 Ark. 245, 464 S.W.3d 913, cert. denied, — U.S. -, 136 S.Ct. 367, 193 L.Ed.2d 297 (2015). Thereafter, MeClinton filed in the trial court a pro se petition for a writ of habeas corpus pursuant to Act 1780 and raised the following allegations as a basis for entitlement to scientific testing: that the DNA evidence collected was illegally obtained as there was no probable cause for its collection due to the lack of medical evidence showing that a rape had occurred; that the physical evidence admitted at trial was done so without establishing a proper chain of custody; that the results of any forensic analysis constituted hearsay evidence; that the evidence collected at the crime scene was not | ¡¡subjected to DNA analysis; that the conviction was based on insufficient evidence; and that all of the above-cited errors resulted from ineffective assistance of counsel. MeClinton contended that due to the above-cited defects in the investigative and trial proceedings, he was entitled to scientific testing of evidence collected at the crime scene which had not been subjected to forensic analysis at the time of his trial. In, support of these claims, MeClinton attached to his habeas petition documents generated by the Pine Bluff Police Department, the Arkansas State Crime Lab, and the Jefferson Regional Medical Center. An attached police-department document listed items collected from the crime scene while two documents from the crime lab referenced a sexual-assault kit and a buccal swab taken from MeClinton. MeClinton asserted that, because the sexual-assault kit and the buccal swab were not collected from the crime scene and were not referenced in police-department records, the items lacked a proper foundation and were, therefore, of dubious origin. MeClin-ton also asserted that the attached medical record from the Jefferson County Regional Medical Center did not mention obtaining a sexual-assault kit. Finally, MeClinton alleged that investigators altered the DNA obtained from the buccal swab. In sum, MeClinton asserted that, due to the alleged unreliable nature of the sexual-assault kit and the buccal swab, and based on his bald assertion that this evidence had been falsified, he is entitled to additional forensic testing of the items collected from the crime scene. According to MeClinton, such testing of the evidence collected at the crime scene would prove his innocence. The trial court denied relief and concluded that MeClinton failed to state grounds upon which relief could be granted under Act 1780. We do not reverse a denial of Lpostconviction relief unless the trial court’s findings are clearly erroneous. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. “A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.” State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542, 545 (2007). Here, the trial court did not clearly err when it concluded that the above-cited claims for relief were not cognizable under Act 1780. Petitions under Act 1780 are limited to those claims related to scientific testing of evidence. The Act does not provide an opportunity for the petitioner to raise issues outside the purview of the Act, and a petition under the Act does not serve as a substitute for the pursuit of other remedies. Marshall, 2017 Ark. 208, 521 S.W.3d 456. McClinton’s allegations challenging the credibility of the evidence as either illegally obtained or without proper foundation as well as his claims of trial court error and ineffective assistance of counsel are claims that are clearly outside the purview of Act 1780. Id. A habeas proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for raising an issue at trial or on direct, appeal. Cf. Edwards v. Kelley, 2017 Ark. 254, 526 S.W.3d 825 (regarding habeas petitions filed pursuant to 16-112-101-123). Moreover, the sufficiency of the evidence was not challenged on direct appeal. See McClinton, 2015 Ark. 245, 464 S.W.3d 913 (addressing the one issue raised on direct appeal that evidence of juror bias supported a mistrial). The allegations contained in McClinton’s pro se petition represented an attempt to bootstrap challenges to the sufficiency of the evidence for the purpose of justifying entitlement to scientific testing under Act 1780. As explained below, McClinton’s allegations failed to meet the fundamental requirements for relief under the Act. UThe prerequisite for establishing a pri-ma facie claim under Act 1780 includes demonstrating the existence of evidence or scientific methods of testing that had not been available at the time of trial or could not have been previously discovered through the exercise of due diligence. Ark. Code Ann. § 16-112-201(a)(1)(2). Furthermore, the petitioner is required to demonstrate that the identity of the perpetrator was at issue during the investigation and prosecution of the offense being challenged. Ark. Code Ann. § 16-112-202(7). Finally, the petitioner must also show that the proposed testing of the specific evidence may produce material evidence that would raise a reasonable probability that the person making a motion under this section did not commit the offense. Ark. Code Ann. § 16-112-202(8)(B). Accordingly, we have made clear that under Act 1780 scientific testing is authorized if testing or retesting can provide materially relevant evidence that will significantly advance the defendant’s claim of innocence in light of all the evidence presented to the jury. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151, cert. denied 543 U.S. 932, 125 S.Ct. 326, 160 L.Ed.2d 235 (2004). In his petition for habeas relief, McClinton did not allege that new evidence had come to light or that new methods of forensic testing became available that were not available at the time of his trial. Rather, McClinton contended that he is entitled to testing of items that had been collected at the crime scene and were available for forensic analysis at the time of trial, based on assertions that all other evidence presented at his trial lacked credibility or had been falsified. McClinton’s allegations in this regard are entirely Rconclusory and otherwise represent an attempt to pursue a remedy that was available at trial or on direct appeal. Marshall, 2017 Ark. 208, 521 S.W.3d 456. Furthermore, a review of the trial record reveals that McClinton’s identification was not at issue during the trial because the victim’s sister testified that she had witnessed the rape and called police to the scene. See Ark. Code Ann. § 16-112-202(7). McClinton was therefore identified as the only possible rapist, by a witness who knew him, and his defense at trial consisted of questioning the credibility of the victim’s sister and the physical evidence establishing that the rape had occurred. In such a case, identity is not at issue for purposes of a petition under Act 1780. " Even assuming McClinton met the other prerequisites under’Act 1780, he failed to demonstrate that such testing would have produced material evidence of his innocence when, viewed in light of the evidence as a whole. Ark. Code Ann. § 16—112—201(a)(2); see Johnson, 356 Ark. 534, 157 S.W.3d 151. The trial record reveals that the evidence, as a whole,- included testimony of a witness to the rape and forensic evidence that placed McClinton’s DNA on the vaginal and rectal swabs taken from the victim. Finally, despite McClinton’s allegations to the contrary, there was testimony from the nurse and the physician who attended the victim at the Jefferson Regional Medical Center that a sexual-assault’ kit had been properly obtained and provided to investigators -for forensic analysis. Testimony from the forensic analyst1 established that the vaginal and rectal ’swabs included in this kit contained a mixture of DNA from which neither the victim nor McClin-ton could be excluded. The analyst explained that only one in approximately 16 million individuals would potentially be included as DNA contributors to the mixture ofJjDNA found on those swabs, and 99.99 percent of black males would be excluded. In fact, the record demonstrates that the chief criminologist with the Arkansas State Crime Lab testified on cross-examination that testing the items found at the crime scene, including’bedding and two pairs of male underwear, would have been cumulative in view of the “more intimate” samples collected from the vaginal and -rectal swabs. In sum, McClinton failed to demonstrate entitlement to habeas relief under Act 1780. His allegations challenging the credibility of the evidence, the efficacy of trial court’s rulings, and the effectiveness of counsel are not within the purview of the Act. Finally, McClinton failed to establish a prima facie showing of an entitlement to relief under the Act as he failed to identify new evidence or a new scientific method that was not available at the time of his trial, failed to show that identify was at issue during his trial, and otherwise failed to demonstrate that testing the crime-scene items would significantly advance his claim of innocence in light of all the evidence presented to the jury. Johnson, 356 Ark. 534, 157 S.W.3d 151. Appeal dismissed; motion moot. . McClinton's verifiéd pro se petition was properly filed in Jefferson County where he had been convicted of the offense that is the subject of his claim for relief, See Ark. Code Ann. § 16-112—203(c)(2), However, the circuit clerk erroneously assigned a civil docket number to the Act 1780 habeas proceedings rather than the original criminal docket number. Because the proceedings below were assigned a separate civil docket number, this court likewise assigned a civil docket number to this pending appeal. . We may take judicial notice of the record from McClinton’s direct appeal without need to supplement the record that is now before this court. See Smith v. State, 2017 Ark. 236, 523 S.W.3d 354, reh’g denied (Sept. 14, 2017). . McClinton was convicted in May 2014 and filed his pro se petition for relief pursuant to Act 1780 in March 2017, within 36 months of his conviction, and his petition is presumed timely. Ark. Code Ann. § 16-112-202(10)(B).

JOSEPHINE LINKER HART, Associate Justice hA Garland County jury convicted Samuel L. Conway of capital murder and aggravated robbery stemming from the March 14, 2005 shooting death and robbery of Mary Adams. The State waived the death penalty, and Conway was sentenced to life without parole plus 588 months to be served in the Arkansas Department of Correction. He raises five points on appeal, arguing that the circuit court erred (1) by failing to grant his motion for a directed verdict; (2) by granting the State’s motion in limine; (3) by denying his motion to suppress his statement and thereafter allowing the statement to he read into the record .and introduced into the record and introduced at trial; (4) by failing to grant, a mistrial due to the State’s improper remarks during closing; and (5) by giving a nonmodel and - confusing jury instruction. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2015). We affirm. A substantial part of the State’s case involved a statement, purporting to bear Conway’s signature, that was generated by the Hot Springs police after interviewing I sConway in 2005. Prior to his November 19, 2014 trial, Conway moved to suppress the statement. At a pretrial hearing, retired detective Jerry Cotten testified that, while serving as lead investigator on the case, he interviewed Conway at 1:39 p.m. on December 13, 2005, at the Garland County Sheriffs Department Criminal Investigation Division offices. At the time, Conway was incarcerated on unrelated charges. Cotten claimed that Conway was Mirandized, but the rights declaration form for the case could not be located. Nonetheless, - Cotten stated that giving Miranda warnings was standard procedure. According to Cotten, it was the policy of the Hot Springs Police Department in 2005 to not record interviews. Instead, Cotten produced a-typed'document that memorialized the statement. The detective stated that he composed the document from notes he had taken of Conway’s interview and that it was his “policy” to destroy the notes after a typed statement was produced. Sergeant Tim Smith, who assisted Cotten with Conway’s interview, corroborated Cotten’s testimony. Testifying at the suppression hearing, Conway admitted that he had submitted to an interview with Hot. Springs police. He stated that he was nineteen years old at the time and. claimed to have “pretty good” reading skills. He further testified that after he was told that Dominic Hobson, a suspected accomplice,. had made a full statement, he did tell police “bits and pieces of what happened,” but he did not remember being read his Miranda rights. Likewise, Conway stated .that he did not recall signing the statement. Nonetheless, Conway acknowledged that the written statement recites that he made his statement .after having been “read his Miranda rights and he said he understood them,” and that “he signed and initialed lathe rights form including the waiver and consent section; of the form.” Further, Conway admitted; that it appeared to.be his signature,at the bottom of the document. While he maintained that some of the wording of the statement did not sound like the way he spoke, he conceded that “some of it_appeared] accurate.” The circuit court denied Conway’s motion to suppress the statement. The case proceeded to trial. Conway asserted the affirmative defense of duress, claiming that his older brother, s Detric Conway, forced him to accompany him to the victim’s home. In limine, the State moved to preclude any mention of Detric’s criminal history or his character. The State argued that Detric was not scheduled to be a witness and there was no rule of evidence that would allow the defense to present such evidence. Conway’s trial counsel replied that he had asserted the defense of duress, and “at, least reputation evidence of Detric Conway would be relevant as it goes to the formation of the belief, the reasonableness of the belief that force — unlawful force would be used upon Mr. Samuel Conway’s person. To exclude that would essentially exclude the defense from putting on an element of proof towards their affirmative defense of duress.” The circuit court ruled, I will allow a certain amount of testimony by Mr. Conway of his knowledge as to Detrie' Conway’s propensity for violence and his ability to complete or act upon any threats he may have made. But that would, by definition, preclude any testimony from third parties as to that. It’ll have to come from Mr. Conway before the door is open. If you’re asserting the defense of duress, you’re talking about his state of mind. So when he takes the stand to testify about that, then he can testify to what prior knowledge he had about Detric Conway’s propensity for violence and ability or information to act on any threats he may have made. Conway subsequently made a general objection to the circuit court’s ruling. 14At trial, the State introduced Conway’s statement. It was read into evidence by Cotten over Conway’s hearsay objection. As he had at the suppression hearing, Cotten recounted his interview with Sam Conway. According to Cotten, assisted by Detective Tim Smith, he received a voluntary statement from Conway after he informed him of his Miranda rights. That statement was memorialized in a signed document that Cotten-prepared. According to the statement, Conway accompanied Detric to Dominic Hobson’s house. While there, Detric said he needed money and asked if Conway and Hobson wanted to “hit a lick,” which they understood to mean, rob someone. According to Conway, he and Hobson just looked at each other. Detric then threatened them with a sawed-off .22-caliber rifle. After that, they accompanied him to Eric Adams’s house. Detric told them that no one would be home because Eric was at work. As instructed, he and Hobson went to the door to ask for Eric, while Detric hid in the bushes, carrying the rifle and wearing a ski mask. Mary Adams, who was Conway’s aunt and Eric’s mother, answered the door and explained that Eric was at work. Hobson asked to use the bathroom, and Ms. Adams let them in. As Ms. Adams turned to lock the door, Detric forced it open and shot her in the forehead. She fell back and blood began to run from her nose. As ordered by Detric, Conway and Hobson began searching for money and marijuana, but found none. Detric, however, found a shoe box containing baggies of marijuana and about $80. About that time, a car pulled into the driveway and sounded its horn. The three ran to the rear of the house and exited through a bedroom window. Conway hid in Detric’s car until Detric and RHobson arrived. They drove to Hobson's house, but when they did not hear the police, they returned to the crime scene and went back in. The robbers each took a pillow case and started taking items that they wanted. Conway took a PlayStation 2 and some games. Detric, took some DVDs, Reebok tennis shoes, a piggy bank, and a watch. Hobson took “some girls shops.” They again returned to Hobson’s house , where they divided the money. Detric kept the marijuana. Detric returned lat.er and retrieved the gun that he had thrown into the bushes. Three weeks later, Conway pawned the PlayStation 2. Sergeant Tim Smith testified that he assisted Cotten with .taking Conway’s statement. He corroborated Cotten’s account of how the statement was taken and that Conway had been Mirandized. Lieutenant Lisa King of the Hot Springs Police Department testified that she was sent as a ‘member of the departments crime-scene unit to ■ the scene of' Ms. Adams’s homicide on March 14, 2005. She described the location of the victim’s body and sponsored pictures of the forensic evidence collected at the crime scene. It was apparent to her' that the house had been ransacked. - ■' Eric Adams testified that the victim, his mother, was living with him, his wife, and his two small children at the timé of the murder. On the day in question, he arrived home around 9:45 p.m. and found his two children sitting on a loveseat blocking the door. When he gained entry, he found Ms. Adams lying on the floor, a victim of an apparent gunshot wound.’ The-house had been ransacked. He noted that some of his property was missing, ^including his X-Box, some shoes, some of his wife’s jewelry, and some marijuana.. According to Eric Adams, Sam Conway and Detric Conway are his cousins. Arkansas Chief Medical Examiner, Dr. Charles Kokes, testified that he reviewed the autopsy that was performed on the victim by Dr. Daniel Konzelmann, who had since passed away. Dr. Kokes testified that he agreed with the autopsy findings that Ms. Adams died as the result of a gunshót wound to the upper inner surface of'her right eyelid. 'The presence of stippling indicated that the 'shot was fired at close range — no moré than six inches away. Arkansas State Crime Lab Firearm and Toolmark Examiner James R. Looney identified the bullet retrieved from the victim’s skull as being .22 caliber. He opined that the bullet likely was fired from a rifle. The State concluded its case with the testimony of Hot- Springs police detective Scott Lampinen, who explained how this “cold case” had been reviewed and resubmitted for prosecution after languishing for several years. Conway made a directed-verdict motion, asserting that there-was no proof to establish that he had a purposeful mental state to commit the underlying felony, aggravated "robbery. Further, Conway contended that there was no evidence that he employed force or was armed with a deadly weapon. Additionally,' Conway argued that he had proved his affirmative defense of duress. The State countered by arguing that there was adequate proof of the requisite intent and conduct not only by Conway but also by Conway’s accomplices. The circuit.court denied the-motion. Although Conway relied on the affirmative defense of duress, he relied solely on his statement, as introduced by the State, and he did not put bon any additional evidence. On appeal, Conway first argues that the circuit court erred by failing to grant his motion for a directed verdict. He acknowledges that his statement to the Hot Springs police was admitted into evidence, but argues that it was insufficient. Citing Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914), and Francis v. State, 189 Ark. 288, 71 S.W.2d 469 (1934), he contends that intent cannot be proved by the concession of the defendant unless there is other proof of such specific intent. Additionally, Conway argues that to sustain the charge, the State was required to prove that he, personally, committed armed robbery. He notes that in his statement, he denied being a willing participant and that the remainder of the State’s witnesses “proved no more than that Mary Adams was shot and killed, and items of property were missing from her home.” He asserts that their testimony “in no way tied Sam Conway to the crimes.” Conway also argues that the State failed to prove he was an accomplice of Detric and Hobson because it failed to show that he aided in planning or committing the offense with the purpose of promoting or facilitating the aggravated robbery or murder. He asserts that the proof supported his duress defense. When we review the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See, e.g., Turner v. State, 2014 Ark. 415, 443 S.W.3d 535, That means that we consider only the evidence that supports the verdict and determine whether the verdict is supported by substantial evidence. Id, Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way. or another and pass beyond mere suspicion or conjecture. | nld. Our criminal code , in pertinent part states: ' (a) A person commits capital murder if: (1) Acting alone or with one (1) or more other persons: (A) The person commits or attempts to commit: (vi) Aggravated robbery, § 5-12-103; (B) In the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of a person under circumstances manifesting extreme indifference to the value of human life. ArkCode Ann. § 5-10-101. A person commits aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person and is armed with a deadly weapon or represents by word or conduct that he is armed with a deadly weapon. Ark-Code Ann. §§ 5-12-102 to -103(a)(1), . (2). A firearm is a “deadly weapon.” ArkCode Ann. § 5-1-102(4)(A). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner of the. property. Ark. Code Ann. §■ 5-36-103(a)(l). In cases where the theory of accomplice liability is implicated, we affirm a sufficiency-of-the-evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). A person acts as an accomplice of another person in the com mission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Ark. |aCode Ann. § 5-2-403(a)(2). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opporr tunity, and association with a person involved in the crime in a manner suggestive of joint participation. Purifoy, supra. In the case before us; there is ample proof of Conway’s joint participation with Detric. He accompanied Detric to the residence that the victim shared with Eric Adams, with the express purpose of committing an aggravated robbery. Conway, who was related to the victim, and Hobson, who asked to use the bathroom, persuaded Ms. Adams to open the locked door while Detric hid in the bushes with a firearm. Conway helped search the residence for money and drugs and collected and kept his own share of the personal property that was stolen as well as a share of the stolen money. Contrary to Conway’s assertion, it was not necessary .that he participate in every aspect of the crime so long as he was acting as an accomplice. Id. Conway’s reliance on Davis and Francis is misplaced as neither is an accomplice-liability case. Conway’s general contention is that his confession could not show intent. However, in this case, his intent to commit an armed robbery and murder was inferred from the actions of his accomplice. Conway’s own statement to police provided direct evidence of De-tric’s intent.to commit an aggravated robbery, and Conway’s account of how Detric murdered Ms. Adams — shooting her in the forehead at very close range — was substantial evidence of “caus[ing] the death of a person under circumstances manifesting extreme indifference to the value of human life.” See Ark.Code Ann. § 5-10-101. When a | mdefendant incurs criminal liability as an accomplice, the law draws no distinction between the actions of the principal and those of the accomplice. Purifoy, supra. Finally, Conway’s invitation to this court to consider the evidence tending to prove his affirmative defense of duress does not comport with the standard of review. As noted previously, when we review a challenge to the sufficiency of the evidence, we consider only the evidence that supports the verdict. Turner, supra. Because the evidence supporting Conway’s duress defense does not support the verdict, we do not consider it in our review. Id. For Conway’s second point, he argues that the circuit court erred by granting the State’s motion in -limine limiting proof of,Detric’s propensity for violence to Conway’s testimony. Conway asserts that the circuit court’s ruling violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and that it impaired his right to put on a complete defense. We recognize that duress, when established by the evidence, has potential merit as a defense. However, it cannot be reviewed here because Conway failed to proffer any of the evidence that he now claims was excluded by the circuit court. Failure to proffer this evidence precludes our review of this issue on appeal. Edison v. State, 2015 Ark. 376, 472 S.W.3d 474. : In Conway’s third point on appeal, he challenges the circuit court’s failure to suppress the statement he made to police while he was in custody. . He argues that the circuit court erred by denying his motion to suppress his statement and thereafter by allowing the statement to be read into the record and introduced into the record at trial. He highlights luthe evi- deuce tending to show the unreliability of the police officers’ testimony, including their hazy recollections, missing Miranda-rights form, and destruction of the handwritten notes. Further, he cites his own lack of recollection whether he signed the Miranda-rights form. He does, however, acknowledge- that he recalled speaking with Detectives Cotten and Smith about what had happened and admitted that it appeared to be his signature on the typewritten statement. As noted previously, the statement itself recites that “he was read his Miranda rights” and that “he signed and initialed the rights form.” We review a circuit court’s decision denying a defendant’s motion to suppress a confession by making an independent determination based on the totality of the circumstances. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565. We reverse the circuit court’s ruling only if it is clearly against the preponderance of the evidence. Id. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove’ by a preponderance of the evidence that a custodial statement was given voluntarily. Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. A person subject to a custodial interrogation must first be informed of his right to remain silent and right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id. While Conway challenges whether he was read his Miranda rights, he does not assert, nor present any evidence, that he did not understand what was meant by the phrase “Miranda rights,” or that he did not knowingly and voluntarily waive the rights granted to him by the Fifth, Sixth, and Fourteenth Amendment to the United States Constitution. We cannot ignore that Conway characterized his reading skills as'-“pretty good” and that the |,-¿document recites that Conway made his statement after having been “read his Miranda rights and he said he understood them,” and “he signed and initialed the rights form including the waiver and consent section of the form.” This statement remains ' unchallenged by any evidence. Conway does not dispute that it appeared to be his signature on the statement or that he made a voluntary statement to the Hot- Springs police. While he professed not to recall everything he told them, he acknowledges that at. least portions of the document appeared to be “accurate.” Accordingly, we hold that the circuit court’s decision to not suppress the statement was not clearly against the preponderance of the evidence. Conway next argues that the circuit court erred by- failing to grant a mistrial due to the State’s improper remarks during closing arguments. He asserts that the following ^remarks should have warranted a declaration of a mistrial, sua sponte; As was testified; this investigation took a bunch of different turns over nine months from the time it originally happened ‘til the time Sam Conway came and gave a statement. We could have put on a lot of testimony about what had happened during that mean time, but that’s not really relevant and would just be a waste of your time. Just know the Hot Springs Police Department did a lot of work on this case that was not presented to you. They took it seriously and they worked it very hard, and they got some good breaks there at the end. He acknowledges that his trial counsel failed to object, but asserts that the circuit court should have intervened pursuant to the authority recognized in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Conway assei’ts that reversal is mandated any time a ■ prosecutor goes far beyond the facts in the record to obtain a verdict. The above-quoted language, while.-unnecessary, does little more than try to excuse the amount of time that had elapsed between the commission of the murder and Conway’s | atrial. It was not material to any of the.elements of the crimes charged, and cohtrary to Conway’s assertion, the statement was not actually outside the proof presented at trial inasmuch as the State put" on the testimony of Detective Scott Lampinen to explain'why it took so long to bring the case to trial. We hold that the unobjeeted-to statement was not so prejudicial as to fall within a Wicks exception. For his final point on appeal, Conway argues that the circuit court erred by giving a nonmodel and confusing jury instruction. At trial, the circuit court granted the State’s request to insert accomplice-liability language, “acting alone or 'with one or more other persons” into the model-jury instruction for aggravated robbery. He asserts that it was an incorrect statement of the law, and it duplicated the model accomplice-liability instruction. Conway notes that he was the only defendant in the case. Nonmodel jury instructions should be given only when the circuit court finds that the model instruction does not state the law or does not contain a needed instruction on a subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). When reviewing whether a jury instruction is ambiguous, this court never considers it in artificial isolation; it must be judged in the context of the instructions as a whole. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Here, Conway undercuts his own argument by noting that the inserted language duplicated the accomplice-liability instruction that was also given to the jury. At worst, the nonmodel instruction merely emphasizes the fact that Conway could be ■liable for-the .crime without committing every aspect of it. This is not an incorrect statement of the law. See Purifoy, supra. Pursuant to Arkansas .Supreme Court Rule 4 — 3(i) (2015), the record has been reviewed for all objections, motions, and requests that were decided adversely to Conway and no prejudicial error has been found, . Affirmed. .' . Conway stated-that the gaming system that - he stole Was a PlayStation 2.

JOSEPHINE LINKER HART, Associate Justice |; Isaac Elisha Evans was convicted by a Pulaski County jury of aggravated robbery and theft of properly. He waived jury sentencing and was sentenced by the court as a habitual offender to a term of life imprisonment in the Arkansas Department of Correction. On appeal, he argues that the circuit court clearly erred in denying his motion to suppress evidence seized' when the police, relying solely on an arrest warrant and an anonymous tip, entered his motel room using a key card and executed an arrest warrant. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2)(2014). We affirm. On February 22, 2013, a Simmons Bank in Little Rock was robbed by a Caucasian man. He presented Garianne Smith, who was working as a teller, a note that read, “Give me all the money from the highest bills to the smallest. No GPS, no tracking. Your cooperation depends on your safety.” When Ms. Smith hesitated, the robber pulled up his shirt revealing that he had a hand in one of his pockets. The teller handed him nearly $4000. Shortly after the robbery, appellant’s brother-in-law, Louis Martin, recognized Evans in pictures from the robbery that had been posted on a local TV station’s website. He | {.contacted police and informed them that the suspect they were seeking was Evans. Two bank employees, Garianne Smith and Sarah Lane, confirmed that Evans was the robber by picking his picture out of a photo array. The police secured an arrest warrant. On February 26, 2013, Evans was apprehended in a North Little Rock motel room. In the room, police found a pair of Coogi jeans like those that the suspect was wearing in bank-surveillance photos; some “loose” money; Evans’s state-issued identification card, issued the day of the robbery, which showed him clean shaven and with close-cropped hair; and hair clippers and shaving supplies. Evans moved to suppress the evidence that was seized as a result of his arrest. At the suppression hearing, the arresting officer, Little Rock Police Detective Barry Flannery, testified that at approximately 8:00 p.m. on February 26, he and Sergeant Bruce Maxwell were working in downtown Little Rock when they received information via radio transmission that Detective Terrell Vaughn had received an anonymous tip that Evans was in room 123 at America’s Best Value Inn on J.F.K. Boulevard in North Little Rock. Flannery testified that he believed that the anony mous caller had also notified North Little Rock police that Evans was at the motel. According to Flannery, he, Maxwell, and Sergeant Calvin Grogan proceeded directly to the motel. He further testified that they obtained a key card from the motel office, and as they approached the room, they noted that a light was on and they could hear the sounds of a television. According to Detective Flannery, the light and the sound of the television was the basis for their belief that Evans was present in the room. laWhen their knock on the door was not answered, they used the key card to gain entrance to the motel room where they encountered Evans, sitting on a bed. After arresting him, they impounded his belongings in accordance with department policy. According to Flannery, all of the items seized in the motel room were in plain sight. On cross-examination, Flan-nery admitted that he did not know how the key card was obtained from the desk clerk, recalling only that Sergeant Maxwell had brought it to him while he watched the room identified by the anonymous caller. The other two police officers were called as witnesses at the hearing. Little Rock Police Sergeant Calvin Grogan likewise testified that he and other officers went to the North Little Rock motel with the sole purpose of arresting Evans. He did not provide any information concerning how the key card was obtained, remembering only that “Detective Flannery had one.” Little Rock Police Sergeant Bruce Maxwell confirmed that he participated in Evans’s arrest, along with Detectives Flan-nery and Grogan. Like Grogan, Maxwell could not recall how the key card was obtained. Both detectives stated that the items seized were close to Evans at the time of his arrest. Relying on Alabama v. White, 496 U.S. 825, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982), Evans acknowledged to the circuit court that when the police have an arrest warrant, they may enter a person’s home or motel room if the police officer has reason to believe that it is his home and he is present. He further asserted that “reason to believe means that the police serving the warrant must believe two things: One, that the person arrested lives in the residence, and two, that |4the person is actually in the residence.” Evans argued further that an anonymous tip that was not corroborated or verified does not establish a reasonable belief. After arguments of counsel, the circuit court denied Evans’s motion to suppress. Evans timely filed a notice of appeal. On appeal, Evans argues that the circuit court clearly erred in denying his motion to suppress evidence because the Little Rock Police officers who entered his motel room to serve an arrest warrant did so based on nothing more than an uncorroborated anonymous tip that he was present in the room. He notes further that the police entered the room without a search warrant, without consent, and without exigent circumstances. Evans asserts that police officers may only enter a residence to serve an arrest warrant if they have reason to believe that the person to be arrested lives in the residence. Further, Evans contends that for police officers to lawfully serve an arrest warrant on a suspect living in a residence, they must have a reasonable belief that (1) the suspect lives in the residence to be entered and (2) the suspect is present when the police enter the residence. He further contends that, as a matter of Arkansas law, a “reasonable belief’ is a belief that an ordinary prudent person would form under the cir cumstances, not a belief that was recklessly or negligently formed. Accordingly, Evans argues, the entry into his motel room was illegal because it was based on an uncorroborated anonymous tip without any exigent circumstances that justified their entry. He also asserts that he was prejudiced because the evidence seized in the arrest corroborated an eyewitness account that he was wearing a particularly distinctive brand of jeans and that he had undertaken an effort to change his appearance. |sEvans’s argument presents an issue of first impression as to whether officers executing a valid arrest warrant can form a reasonable belief that the person to be arrested is residing in a motel room based solely on an anonymous uncorroborated tip. Even though the police had secured an arrest warrant for Evans, absent exigent circumstances or consent, the arresting officer could not enter the dwelling of a third party without a search warrant. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In Payton, however, the Supreme Court stated that an arrest warrant was sufficient to satisfy the Fourth Amendment where the entry of a suspect’s dwelling was concerned. 445 U.S. at 603, 100 S.Ct. 1371. It stated: It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. 445 U.S. at 602-03, 100 S.Ct. 1371. The United States Court of Appeals for the Eighth Circuit has held that under Pay-ton, officers executing an arrest warrant at a residence must have (1) a reasonable belief that the suspect resides at the place to be entered and (2) reason to believe the suspect is present. United States v. Risse, 83 F.3d 212 (8th Cir.1996). In Risse, the police discovered marijuana and drug paraphernalia when they entered Risse’s home to execute an arrest warrant on Risse’s girlfriend, Rhoads. The police knew that Rhoads maintained a separate residence, but learned from Rhoads that she was “staying” with Risse. The Eighth Circuit held that Rhoads’s information provided police with a reasonable belief that Rhoads | (¡resided with Risse. When we review a circuit court’s denial of a motion to suppress evidence, we conduct an independent inquiry based on the totality of the circumstances, evaluating findings of historical facts for clear error. Villanueva v. State, 2013 Ark. 70, 426 S.W.3d 399. We give due weight to inferences drawn by the circuit court, and we will reverse the circuit court only if the ruling is clearly against the preponderance of the evidence. Id. We also defer to the trial court’s superior position to judge the credibility of witnesses. Id. In the case before us, the police based their decision to enter Evans’s room solely on the anonymous tip, which was received by someone other than the arresting officers. They could relate no details regarding the tip. Likewise, the police did not provide any information to establish any other basis for a reasonable belief that Evans was residing in the room. The police were unable to recall how they ob tained a key card to room 123, or even which of the three officers actually procured it. Regarding whether the police had reason to believe that Evans was present in the motel room, the police again relied exclusively on the anonymous tip. Although their testimony that the lights and television were on might support a reasonable belief that someone was in the room, nothing but the anonymous tip indicated that the occupant, if any, was Evans. Additionally, the officers observed no activity, and no one answered when they knocked on the door. Accordingly, we cannot say that under these facts the police had a reasonable belief that it was Evans’s motel room and that Evans was present. The Supreme Court held in Navarette v. California, — U.S. -, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), that an 17anonymous tip, without a sufficient indi-cia of reliability, cannot provide a basis for finding reasonable suspicion to make a traffic stop. It stated, “[A]n anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at 1688 (citing White v. Alabama, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). Here, the uncorroborated anonymous tip, standing alone, did not provide sufficient detail for a reasonable belief that the motel room was Evans’s room or that Evans was present. Payton, supra. Thus, the circuit court erred in admitting the evidence seized incident to Evans’s arrest. However, our inquiry does not end there. The denial of a motion to suppress can be harmless error when the evidence of guilt is overwhelming and the error is slight, or this court concludes beyond a reasonable doubt that the error did not contribute to the verdict. Livingston v. State, 2013 Ark. 264, 428 S.W.3d 474. In applying this doctrine, we must exclude the improperly admitted evidence and examine the remaining evidence. Id. . As noted previously, the evidence seized in Evans’s motel room was relevant because it tended to corroborate Evans’s identity as the bank robber. However, Evans’s identity as 18the person who robbed the bank was established at trial by more than two dozen surveillance photos; identification of Evans by bank employees Garianne Smith and Sarah Lane; and testimony of Louis Martin, Evans’s brother-in-law, that Evans was the person depicted in the surveillance photos. The foregoing constitutes overwhelming evidence of Evans’s identity; therefore, we hold that the circuit court’s error in denying Evans’s motion to suppress was harmless beyond a reasonable doubt. Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2014), the record has been reviewed for all objections, motions, and requests that were decided adversely to Evans, and no prejudicial error has been found. Affirmed. Hannah, C.J., and Danielson and Goodson, JJ., concur. . The concurring opinion’s attack on our citation of Navarette bears some explaining. The Navarette Court stated: The indicia of the 911 caller's reliability here are stronger than those in [Florida v.] J.L. where we held that a bare-bones tip was unreliable. 529 U.S. [266] at 271 [120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)]. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate "a particularized and objective basis for suspecting the particular person stopped of criminal activity.” [United States v.] Cortez, 449 U.S. 411, 417-418 [101 S.Ct. 690, 66 L.Ed.2d 621 (1981)]. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the repotted vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. Accordingly, the Navarette Court stated that more was required than a "bare-bones tip.”

PHILLIP T. WHITEAKER, Judge 1 Appellants Dannie and Ruth Ogden challenge an order of the Washington County Circuit Court dismissing their complaint with prejudice. On appeal, the Ogdens contend that the second dismissal of their complaint should have been without prejudice because a literal application of Arkansas Rule of Civil Procedure 41(b) leads to a “harsh and absurd” result. We find no error and affirm. I. Procedural History The Ogdens filed their first complaint against appellee Randall Hughes in 2012, alleging that Hughes owed them $97,734.58 pursuant to a promissory note. Hughes moved to dismiss the complaint against him on the basis that the Ogdens failed to make proper service of summons on him within 120 days of the filing of the complaint. The circuit court |2agreed and granted Hughes’s motion, dismissing the Ogdens’ complaint without prejudice. On July 30, 2013, the Ogdens refiled their complaint. On December 2, 2013, the Og-dens filed a motion to extend the time for service and for warning order. The circuit court entered an order the same day, granting the request. Hughes subsequently moved to dismiss the Ogdens’ second complaint, asserting that their motion for extension of time to obtain service had to have been filed within 120 days of the July 30, 2013 filing of the complaint, or by November 27, 2013. Because the motion for extension was untimely filed on December 2, 2013, Hughes argued that their motion failed to comply with Arkansas Rule of Civil Procedure 4(i) and that the complaint should therefore be dismissed. Moreover, because any dismissal would be a second dismissal under Rule 41, Hughes contended that the dismissal. should be with prejudice. Thé Ogdens responded that their complaint should not be dismissed with prejudice due to the “unique” nature of the case. The Ogdens raised three matters to support the case’s “uniqueness.” First, the Ogdens argued that Hughes had been “refusing and evading service,” and for that reason, public policy dictated that the complaint should not be dismissed with prejudice “due to a small technical violation that has nothing to do -with the merits.” Second, they argued that their attorney’s mother had been killed in a plane crash on November 1, 2013. While the motion for extension of time to obtain service had been ^prepared on October 26, 2013, the “sudden and unexpected nature” of the death was a contributing factor in the failure to file the motion to extend time for service within the 120 days, which ended on November 27, 2013, the day before Thanksgiving. Third, the Ogdens noted that the extension motion had been filed on Monday, December 2, 2013, the next day that the courthouse was open after the holiday. Following a hearing, the circuit court entered an order rejecting the Ogdens’ arguments and dismissing their second complaint with prejudice. The court found that the first complaint had been dismissed for failure to comply with the Rules of Civil Procedure (i.e., failure to effectuate proper service). The court further determined that the second complaint was being dismissed due to the failure of service. Accordingly, the court concluded that Rule 41(b) required that the second dismissal be with prejudice. The Ogdens filed a timely notice of appeal. II. Analysis As noted above, the issue on appeal is whether the circuit court erred in dismissing the Ogdens’ complaint with prejudice pursuant to Rule 41(b). The Ogdens argue that a “literal” application of Rule 41(b) leads to “a harsh and absurd result that does not serve the intended purpose of the rule.” Our standard of review is twofold. In general, a Rule 41 dismissal is reviewed under an abuse-of-discretion standard. See Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., 2011 Ark. 501, 385 S.W.3d 797. When this court must construe the meaning of a [4court rule, however, our review is de novo. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, 388 S.W.3d 422. Rule 41 sets forth what is commonly referred to as the “two-dismissal rule.” This rule essentially mandates that a second dismissal of a lawsuit operates as an adjudication on the merits and must be with prejudice if the previous dismissal was a result of the plaintiffs failure to comply with the rules. The purpose behind .the two-dismissal rule is “to prevent unreasonable use of the plaintiffs unilateral rights to dismiss an action prior to the filing of the defendant’s responsive pleading” and “to prevent delays and harassment by plaintiffs securing numerous dismissals without prejudice.” Richard, 2012 Ark. 129, at 7-8, 388 S.W.3d at 426. Rule 41 provides, in pertinent part, as follows: (b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits. (Emphasis added.) In this case, the Ogdens’ first dismissal — which was without prejudice— was occasioned by their failure to comply with Rule 4; that is, they failed to effectuate proper service on Hughes within 120 days, as required by Rule 4(i). Thus, this first dismissal, though without prejudice, was a dismissal for “failure of the plaintiff to comply with these rules” ^pursuant to Rule 41(b). See Bakker v. Ralston, 826 Ark. 575, 932 S.W.2d 325 (1996); Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994). The second dismissal was also brought about by the Ogdens’ failure to timely obtain an extension of time to serve their complaint. Under Rule 4(i), service of summons must be made upon a defendant within 120 days after the filing of the complaint. To obtain an extension of the 120-day period in Rule 4(i), a plaintiff must file the motion for extension prior to the expiration of that 120-day period. Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004); King v. Carney, 341 Ark. 955, 20 S.W.3d 341 (2000). If service is not obtained within that time and no timely motion to extend is made, dismissal of the action is mandatory. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). The Ogdens’ failure to either obtain service or file a motion to extend within 120 days resulted in the mandatory dismissal of the second complaint. See Ark. R. Civ. P. 41(b). Because the action had previously been dismissed, the plain language of the rule dictates that the second dismissal operated as an adjudication on the merits. Bakker, 326 Ark. at 579, 932 S.W.2d at 327. The Ogdens nonetheless argue that the supreme court has chosen not to give the rule a literal interpretation and application in situations where the policy behind the rule is not served. They contend that the supreme court has held that, where the purpose behind the two-dismissal rule would not be served by its literal application, “a court should be most careful not to construe or apply the [rule] too broadly.” Jonesboro Healthcare, 2011 Ark. 501, at 10, 385 S.W.3d at 803. The Ogdens note the circumstances behind their failure to timely file the motion for extension of time, explaining that counsel had prepared the motion on | (¡October 26, 2013, but did not file it until after the 120-day period had expired because his mother had been unexpectedly killed in a plane crash. Therefore, they urge, this court should not “blindly and literally apply” Rule 41(b) “in the interests of justice.” In making their arguments, the Ogdens rely on three cases in which the supreme court did not hew to the literal language of the rule: Richard v. Union Pac. R.R. Co., supra; Jonesboro Healthcare, supra; and Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995). Each of these cases is distinguishable, however, as will be discussed. In Richard and Jonesboro Healthcare, the focus was on the nature of the first dismissal. In Richard, the plaintiffs first dismissal was taken at the request, and for the benefit, of the defendant. Because the first dismissal was obtained at the defendant’s request and not by unilateral action of the plaintiff, the supreme court held that it was not “an unreasonable exercise of [the plaintiffs] unilateral right to dismiss his case” and that the purpose of the rule would not be satisfied by dismissing the second case with prejudice. Richard, 2012 Ark. 129, at 12, 388 S.W.3d at 429. In Jonesboro Healthcare, the first dismissal was from district court for lack of subject-matter jurisdiction. Because the district court lacked subject-matter jurisdiction, the plaintiff had “no choice and certainly no unilateral right to allow the case to proceed in district court.” Jonesboro Healthcare, 2011 Ark. 501, at 8, 385 S.W.3d at 801-02. The supreme court concluded that the first dismissal from district court for lack of jurisdiction was not a voluntary nonsuit or voluntary dismissal under Rule 41(a) and thus did 17not trigger the two-dismissal rule. Unlike Richard and Jonesboro Healthcare, the first dismissal here was for failure to comply with Rule 4, a matter within the Ogdens’ control. Likewise, Davis, supra, is also distinguishable. Davis involved an action for child support and paternity. The Office of Child Support Enforcement’s (OCSE) first proceeding against Davis was dismissed without prejudice on OCSE’s own motion; the second proceeding resulted in a settlement between the parties and a dismissal with prejudice. When OCSE later brought a third suit against Davis, Davis sought dismissal. The circuit court, however, denied the motion because the second order had been entered without consideration of whether the settlement was in the child’s best interest and was thus void as against public policy. The supreme court affirmed, holding that the second dismissal was void on its face and therefore could not operate as a bar to subsequent proceedings under Rule 41. Davis, 322 Ark. at 356, 908 S.W.2d at 652. The Ogdens cite Davis as support that, in some instances, public policy demands consideration of the individual facts of a given case, rather than a strict application of the two-dismissal rule. We find this unpersuasive given the fact that both of the Ogdens’ dismissals resulted from a failure to comply with the service requirements of Rule 4.' Affirmed. Vaught and Hoofman, JJ., agree. . After the Ogdens filed their first complaint, a summons was issued and a return of service was subsequently filed. The return of service, however, did not comply with Rule 4(g) because the person effecting service was a person other than a sheriff or his deputy, and that person failed to make an affidavit thereof. The circuit court therefore found that no valid service of summons had been made within 120 days of the filing of the complaint. . There, the lawsuit had originally been filed in federal court in Texas; however, the defendant subsequently discovered that it had potential third-party claims against an Arkansas company over whom the Texas court would not have personal jurisdiction.

LARRY D. VAUGHT, Judge hAppellant Vijay Patel appeals the Garland County Circuit Court’s judgment awarding appellee Yogin Patel $130,000 on an unpaid promissory note, post judgment interest, and attorney’s fees. On appeal, Vijay argues that the circuit court erred by (1) finding that the handwritten agreement represented a binding contract, (2) applying a five-year statute of limitations, (3) failing to give Vijay credit for loans paid to Yogin throughout the 1990s, and (4) granting attorney’s fees. We affirm the judgment. Vijay is a . doctor who lives in Chicago. He also owns several hotels across the country. In the 1980s, Vijay helped his friend Yogin immigrate to the U.S. from India. Vijay gave Yogin a job as a manager of one of his hotels. Vijay claims that, throughout the 1990s, he made numerous loans to Yogin totalling $227,500. Yogin used some of this money to purchase minority interests in some of Vijay’s hotels: Vijay also made loans to Yogin’s brother, Atul, and Atul also used the money to purchase, minority interests in Vijay’s hotels. [2In 2003, in order for Vijay to be able to sell two of his hotels in Hot Springs, he entered into agreements with Yogin and Atul to buy back their minority interests in those hotels. Vijay executed hand-written “agreements” with both brothers. The agreement that Vijay executed with Yogin stated that Yogin Patel agrees to sell assets of 5% shares he holds in Hot Springs Host, Inc. and 5% shares of Hot Springs Express Host, Inc. for consideration of $130,000, to Vijay Patel. Vijay shall give promissory note of $130,000.00 to Yogin Patel. Vijay’s agreement with Atul provided that he would give Atul a promissory note of $120,000, but it also acknowledged Atul’s debt from the loans Vijay gave him throughout the 1990s. Yogin filed a complaint against Vijay on April 2, 2008, alleging that Vijay had never paid the promissory note and owed him $130,000 plus interest. Vijay answered, denying the allegations and counterclaiming for the money he had loaned Yogin throughout the 1990s. After a bench trial on November 14, 2014, the Garland County Circuit Court ruled in favor of Yogin. The court granted judgment in favor of Yogin for $130,000, ten percent post judgment interest, and attorney’s fees. Vijay filed a timely appeal. , In civil bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. . Tadlock v. Moncus, 2013 Ark. App. 363, at 3, 428 S.W.3d 526, 529 (citing Rooke v. Spickelmier, 2009 Ark. App. 155, 314 S.W.3d 718). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. Vijay first argues that'the circuit court erred in finding that the agreement was a binding contract obligating Vijay to pay Yogin $Í30,000. Vijay argues' that the written [¡¡document was missing key elements necessary to form a contract and that he never intended to be bound by the document. Vijay argues that, because the terms of the agreement simply stated that he “shall give a promissory note” to Yogin, the contract lacked any obligation to pay or any terms of payment and therefore was insufficient to form a binding contract. We disagree. The agreement stated that ‘Yogin Patel agrees to sell assets of 5% shares he holds ... for consideration of $130,000, to Vijay Patel.” It is clear that the contract con templated the sale of- shares for a specific monetary amount. It is undisputed that Yogin transferred his interest in the shares to Vijay, and-it is undisputed that Vijay never executed the promissory note or paid Yogin. Vijay argues that our case law recognizes that parties may enter into preliminary agreements with the understanding that they would not be bound until a more formal contract was later executed. However, this case does not fall within that category. There is no indication that the written “agreement” was intended to be a preliminary negotiation rather than a final, binding contract. Supporting Yogin’s position is the fact that Vijay executed a similar agreement with Atul, but that agreement referenced the fact that Atul owed Vijay a debt for the loans he had extended to Atul throughout the 1990s. Vijay’s agreement with Yogin does not mention the loans or. any debt. The terms of Vijay’s agreement with Yogin were clear: a sale of Yogin’s shares in exchange for $130,000. We . therefore affirm the circuit court’s finding that the “agreement” represented a binding contract. Vijay next argues that the circuit court applied the wrong statute of limitations. As discussed above, Vijay argues that the written agreement does not contain all the terms that | ¿would be néces-sary for a written agreement, making it essentially an oral agreement to which the three-year statute of limitations found in Arkansas Code Annotated section 16-56-105 should have applied. The circuit court applied the five-year' statute of limitations applicable to breach-of-contract claims, pursuant to Arkansas Code Annotated section 16-56-111. Because we disagree with Vijay’s contention that the written agreement lacked necessary terms and merely contemplated a future contract, we also disagree with his argument that the statute of limitations applicable to oral agreements was controlling. Here, there was a clear, binding, written contract, and the circuit court properly applied the five-year limitations period. Vijay also argues that the circuit court erroneously ruled that his claims for offset based on repayment of thé loans he made to Yogin during the 1990s were barred by the' statute of limitations. He argues that, because the parties agreed that repayment of the loans would come out of the 2003 agreement to buy back Yogin’s minority interest in the hotels, the Statute had not run. He also cites Little Rock Crate and Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984) for the rule that the statute of limitations does not apply to the affirmative defense of offset. In addition to ruling that Vijay’s offset defense was barred by the statute of limitations, the circuit court also found’ that Vijay failed to prove what, if anything, Yogin owed him pursuant to the loans and was therefore not entitled to any offset. Vijay has not challenged the circuit court’s finding as to failure of proof. When a circuit court bases its decision on more than one independent ground and the appellant challenges fewer than all of those grounds on appeal, we will, affirm without addressing any of the grounds. Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009). | ¡Vijay’s final point on appeal is that the..circuit court incorrectly granted Yogin attorney’s fees without stating why the fees were reasonable or providing a calculation for how the fees were determined. He also claims that the fees were granted without a proper motion under Rule 54(b). However, we cannot reach these issues because Vijay failed to raise an objection below, so they have not been preserved for appeal. Yogin requested attorney’s fees in his complaint. The circuit court stated that it -was awarding fees in its letter order and directed counsel to file a statement of services provided. Counsel did so, and the circuit court incorporated that information into the final order. At no point in this process did Vijay raise any objection to the circuit court related to the fee award. It is well settled that this court will not consider arguments raised for the first time on appeal. Millsap v. Williams, 2014 Ark. 469, 449 S.W.3d 291; Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817. Unless a party has no opportunity to object to a ruling of the circuit court, an objection must be made at the time of the ruling, and the objecting party must make known to the court the action desired and the grounds of the objection. Olson v, Olson, 2014 Ark. 537, at 7, 453 S.W.3d 128, 132-33; In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307; Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Vijay does not argue that he was denied an opportunity to object. Therefore, we cannot address his challenge to the fee award due to hi$ failure to raise it below. Affirmed. Gladwin, C.J., and Glover, J., agree. . Vijay Patel is not related to Yogin Patel or Atul Patel.

RAYMOND R. ABRAMSON, Judge 11 This appeal stems from divorce proceedings of Stephanie (Quinn) Branch and James (Jimmy) Branch. On appeal, we are tasked with resolving issues related to the validity and enforceability of the parties’ premarital agreement, as well as issues regarding property division. However, we cannot reach the merits of this appeal because of a deficient Rule 54(b) certificate.J Quinn and Jimmy Branch were married on July 25, 2003. They executed a premarital agreement prior to the marriage. In January 2014, Quinn filed a complaint for divorce. In her complaint, she sought to have the premarital agreement declared unconscionable and void pursuant to Arkansas Code Annotated section 9-11-406. Jimmy answered Quinn’s complaint for divorce denying that the premarital agreement was void; he also counterclaimed for divorce. The trial court held a final divorce hearing in September 2014. Following the hearing Land post trial briefing, the court issued a letter opinion in October 2014 outlining its ruling. On November 19, 2014, a decree of divorce memorializing the trial court’s findings was entered. The divorce decree was not a final order for appellate purposes. The parties recognized this fact and the effect it had on their ability to appeal. Consequently, the trial court executed a Rule 54(b) certificate on December 11, 2014, so that an immediate appeal could commence. The 54(b) certificate was filed separately from the divorce decree and more than three weeks after the decree had been entered of ren-ord. Jimmy appealed the trial court’s divorce decree- in a notice of appeal filed on December 17,2014. Although neither party raises the issue of finality, the court must necessarily address it because it affects our jurisdiction over the appeal. Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90, 361 S.W.3d 262. The presence of a Rule 54(b) certificate is necessary to grant finality to a judgment that otherwise would not be final under our rules. In order for this court to acquire jurisdiction over an appeal, a trial court’s certificate must comply with the requirements of Rule 54, and in the present appeal, we cannot reach the merits because of noneompliance. Rule 54(b)(1) provides,-in pertinent part, that the certificate “shall appear immediately after the court’s signature on the judgment.” Here, the certificate does not immediately follow the court’s signature. Instead, it was filed independent of the trial court’s divorce decree and several weeks after the decree was entered. While we recognize that this | ^deficiency may seem minor, we are nevertheless constrained to .dismiss because the plain language of Rule 54(b) requires that the certificate shall be located on the judgment immediately after the court’s signature, and our supreme court has construed the word “shall” when" used 'in' our Rules of Civil Procedure to mean that compliance is mandatory. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). Additionally, this type of deficiency is significant and poten tially problematic because the certifícate establishes the identity of the order appealed from and the date from which to calculate the , deadline for filing the notice of appeal. See Watkins v. City of Paragould, 2013 Ark. App. 539, 2013 WL 5512831. We conclude that this appeal must be dismissed for lack .of a final and appealable order because the 54(b) certificate is deficient. Dismissed without prejudice. Virden and Whiteaker,. JJ., agree. . Jimmy later filed an amended notice of appeal on February 2, 2015, challenging the divorce decree and the denial of his motion to reconsider. . In the present appeal, the notice of appeal was timely filed within thirty days of both the entry of the decree of divorce and the 54(b) certificate. Thus, any procedural defect created by the noncompliant 54(b) certificate is arguably harmless. Nevertheless, this court "must be consistent in our application of our rules to every case and every litigant ... and must enforce those rules in a consistent fashion to achieve the order and predictability that the appellate process requires.” Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234.

BRANDON J. HARRISON, Judge bin February 2015 the White County Circuit Court found Jeff Van Runsick and Tonya Runsick to be the owners of a certain mineral interest, granted reformation of a correction deed, and awarded attorney fees following a bench trial. Kenneth and Gloria Elsleger appeal the circuit court’s decision. Because we hold that the circuit court erred by .going beyond the scope of the legal purpose, that a correction deed serves by-adding a mineral reservation or exception, we reverse and remand for further proceedings consistent with this opinion. I. Background and Procedural History Jeff Van Runsick and -Tonya Runsick sold Kenneth and Gloria Elsleger a home and five acres near Searcy, Arkansas in 2007. A deed was recorded in White County on. 11 December 2007 (Deed I). Deed I contained the following language: ^RESERVING AND RETAINING, HOWEVER, unto the GRANTORS all oil, gas and minerals and all óil, gas and mineral rights and interests, and subject to all prior and/or existing oil and' gas leases, if any, and subject to all prior reservations and conveyances of oil, gas or minerals or right or interests therein. This conveyance conveys unto the GRANTEES no oil, gas or minerals and no oil, gas or mineral rights or intérests. The Runsicks executed two more deeds several months later at the request of White County Title Company.' Although it appears from the trial testimony that the two additional deeds .(Deeds II and III) were executed by the. Runsicks on the same day, the deeds wére recorded at different times. What we call Deed II is titled “Warranty Deed” and was recorded on 26 February 2008. In it, Tonya Run-sick’s name was correctly stated as. “Tonya Runsick” and the grantors (the Runsicks) purportedly conveyed all the interest they owned in the property (what we call Black-acre in this opinion) to the Elslegers, After the granting clause, Deed II contained this statement:., ★ ★GRANTORS shall retain and reserve all oil, gaS, and mineral rights they hold on the above described property, less and except any previous reservations of oil, gas, -and minerals, if any. The Elslegers did not sign Deed ÍI; it was signed only by the Runsicks. .A few weeks later, on 14 March 2008, what we call Deed III was recorded. It is titled “Correction Deed.’’ Deed III did not contain .any language about any mineral interest, and it was signed by Jeff Van Runsick and Tonya Runsick as grantors. Deed III was also signed by the Elslegers as grantees. ' On 2 December 2008, Fatima Hoggard, an employee of White County Title,'filed a Scrivener’s Affidavit. Her affidavit stated that the correction deed (Deed III) “contain[ed] an unintentional scrivener’s error in the absence of the mineral reservation.” According to |aHoggard’s affidavit, this “mineral reservation” was intended to appear after the legal description in Deed III: ★ GRANTORS shall retain and reserve any oil, gas, and mineral, rights they hold on the above described property, less and except any previous reservations of oil, gas, and minerals, if any. In January 2009, shortly after the Scrivener’s Affidavit' was filed, the Elslegers requested royalty payments from Chesapeake Operating, Inc. (Chesapeake). But Chesapeake objected to making royalty payments to either the Elslegers or the Runsicks. A 2010'létter from Chesapeake, which the court accepted as evidence during the bench trial, asked the parties to stipulate What intérest each was claiming. Chesapeake noted that Deed I conveyed an undivided ⅜ surface interest to the El-slegers. It' also observed that Deed II was a warrarity deed and that it covered the property. In Chesapeake’s view, Deed II’s language dealing with the mineral-reservation language could be construed in two ways: either (1) a reservation of all minerals; or (2) a reservation of only ½ of the minerals and conveyance of the ½ of the minerals previously reserved. Chesapeake then noted that Deed III provided that the “conveyance is subject to all reservations of record, although it does not contain a reservation of minerals itself nor is it limited to an undivided ½ interest.” It remarked that both the grantors (Run-sicks) and the grantees (Elslegers) executed the correction deed. And, for its own limited purposes, the letter showed the property’s mineral interest to be vested in the Elslegers. If the Runsicks claimed no mineral interest in the property, Chesapeake asked that they execute a quitclaim deed to the Elslegers covering the disputed mineral interest and oil-and-gas rights. |4The Runsicks filed their complaint in September 2010 against the Elslegers and Chesapeake seeking reformation of Deed III, which contained no mineral-rights language. The Runsicks alleged that it was by mutual mistake that the correction deed (Deed III) failed to include an exclusion or reservation of the mineral interest, because the correction deed was “only and solely for the purpose” of. correcting Tonya Runsick’s name, as evidenced by the Scrivener’s Affidavit. The Elslegers, in turn, filed a third-party complaint for slander of title against White County Title Company. Chesapeake stipulated that it would cause all past and’ future royalty payments to be paid -to whichever party prevailed after entry of a final order disposing - of the proceeding. A bench trial occurred in February 2015. The 2007 operative real-estate contract was entered into evidence during trial. The contract had three possible provisions that relate to mineral rights: Paragraph 8, Paragraph 12, and Paragraph 27. Paragraph 8 stated that “SUCH CONVEYANCE SHALL INCLUDE ALL MINERAL RIGHTS OWNED BY SELLER CONCERNING AND LOCATED ON THE PROPERTY, IF ANY, UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 27.” (emphasis in original). The referenced paragraph, Paragraph 27, contained no statement about mineral rights and stated that the real estate contract supersedes any other contract or agreement. In contrast, Paragraph 12 stated, “Mineral Rights do not convey with this property.” Paragraph 12 was titled “Fixtures And Attached Equipment.” During the bench trial, the Runsicks testified that it was always their understanding and intention to retain all the mineral interest in the property, and they had never spoken | Bto the Elslegers directly regarding the minerals. Phyllis Fitzgerald, the real-estate agent who had represented both parties in the transaction, testified that she felt that it was “clear from all communication, all documents” that it was the intent of the Runsicks to retain the minerals and the intent of the Elslegers to not, get the minerals. A co-owner of White County Title, Mitzi Hannah, also testified for ■ the Runsicks. Hannah testified that White County Title became involved at the request, of ENG Lending to do a refinance of the property for the Elslegers. The Elslegers apparently realized there were issues with Deed I when they tried to refinance the property in early 2008, and .White County Title Company received a work order from the Elslegers’ lender for the purpose of. clearing up title to the property. The title problem was two-fold: (1) Deed I reflected one of the grantor’s names (Tonya Run-sick) as Tonya Van Runsick, not Tonya Runsick, and (2) it reflected that the grantors (the Runsicks) had conveyed only a one-half interest in Blackacre to the grantees (the Elslegers). She explained that White County Title prepared Deed II (warranty deed) with the purpose of conveying “all the interest in the property” and prepared Deed III (correction deed) “to correct the last name from Van Run-sick- to Runsick.” Hannah agreed that the Runsicks signed the deeds “to help -the Elslegers clear their title so ... the chain of title could be very clear.” Hannah testified that Jeff Runsick later called and complained that the deed had done away with his mineral rights. Hannah also said that she felt that “Mr. Runsick has his mineral rights,” but she agreed that they tried to help him. White County Title, Hannah explained, tried .to “help out” the Runsicks by filing the December 2008 Scrivener’s Affidavit. It also tried to get the Elslegers to sign | f,another correction deed containing a mineral reservation in favor of the Runsicks, but the Elslegers refused to sign the proposed correction deed. The Elslegers moved to dismiss the Runsicks’ complaint, arguing that the Run-sicks had failed to show mutual mistake by clear and convincing evidence and that “all prior negotiations are merged into a deed and that warranty deed and the subsequent correction deed make it very clear ... that the deed on its face, the correction deed, shows the minerals were'not reserved.” The court denied the Elsleg-ers’ motion. The Elslegers then presented their side of the story. They testified that Fitzgerald, who had represented them (and the Runsicks) during the real-estate transaction, told them that the minerals conveyed with the. house and that it was always their understanding that they were the owners of the property’s mineral interest. They also called several other witnesses, whose testimony supported .the. Elslegers’ or whose testimony was cumulative and reflected what had already been said during the Runsicks’ case in chief. At the close of the evidence the Elslegers renewed their motion to dismiss, and the court denied it. The circuit court took proposed findings of fact and conclusions of law in lieu of closing arguments, eventually adopting the Runsicks’ proposed order. An 18 February 2015 judgment was entered, and it disposed of the Runsicks’ claims against the Elslegers and Chesapeake. The judgment specifically granted the Runsicks’ request for reformation, stating in part: 19. The case in hand the testimony of both parties was that they signed the real estate agreement and that it was the agreement of the parties. 20. That the first two deeds included the mineral reservation, and that due to an error by the scrivener, a mineral reservation was not included in the correction deed. Ji- • • 26. That a similar factual case has already been tided in Van Burén County Arkansas, the case is cited as Lawrence v. Barnes, 2010 Ark, App. 231, 374 S.W.3d 224 (2010), wherein the outcome was favorable to the party who was identically positioned as [the Run-sicks][.] 28. The Court concludes that'the intent of the party by their actions and the documents they have signed was for the [Runsicks] to reserve the minerals and retain ownership of the mineral interest. 29. Based upon the evidence presented in the trial-of this case, the Court finds that the parties in this transaction intended for the correction deed to accurately reflect the intent of the parties, and that by mutual mistake it did not, as such it-is reformed to include a mineral reservation as set out below? ★ GRANTORS shall retain and reserve any oil, gas, and mineral rights they hold on the above described property, less and except any previous reservations of oil, gas, and minerals, if any. 30. The court finds that Jeff Van Run-sick and Tonya Runsick to be the owners of the minerals underlying the property set out herein, and that separate defendant, Chesapeake Exploration, LLC, should therefore honor the reformed deed' and to pay any and all royalties that are due pursuant to the interest owned by Plaintiffs. - The circuit court later dismissed the El-siegers’ complaint' against White County Title and entered an order awarding the Runsicks attorney fees. The Elslegers have timely appealed from all these orders. II. Standard of Review ■ We review reformation cases de novo. Stalter v. Gibson, 2010 Ark. App. 801, 379 S.W.3d 710. But we do not reverse unless the circuit court’s findings were clearly erroneous. Id. ■ A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm 18conviction that a mistake has been committed. L & L Energy Co. v. Chesapeake Exploration, LLC, 2010 Ark. App. 422, 379 S.W.3d 42. Disputed facts and determinations of credibility are within the province of the fact-finder. Id. A circuit court’s conclusions of law, however, are given no deference on appeal. Id. III. Discussion On appeal, the Elslegers argue two primary points: (1) the circuit court erréd in reforming the correction deéd, and (2) attorney fees should not have been granted. We hold that the circuit court erred in granting reformation of the correction deed (Deed III). Because we reverse and remand on the first point, we reverse the attorney-fees award too. Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms- of their agreement are not correctly reflected in the written instrument purporting to reflect the agreement. Longing Family Revocable Tr. v. Snowden, 2013 Ark. App. 81, at 5, 426 S.W.3d 488, 492. A mutual mistake is one that is reciprocal and common to both parties, meaning that each party has the same misconception of the written instrument’s terms. Id. Whether a mutual mistake warranting reformation occurred is a question of fact. Mauldin v. Snowden, 2011 Ark. App. 630, at 8, 386 S.W.3d 560, 565. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the circuit court to evaluate the evidence, and the proof need not be undisputed. Id. The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is an adequate ground for reformation if the writing fails to reflect the parties’ true understanding. Statler v. Painter, 84 Ark. App. 114, 119, 133 S.W.3d 425, 428 (2003). | aWhile a court may, through reformation, correct a deed to reflect the parties’ true intentions, the general rule is that a deed includes all prior negotiations and agreements leading up to its execution and delivery. Bicknell v. Barnes, 255 Ark. 697, 700, 501 S.W.2d 761, 763 (1973) (“Although agreements respecting the sale of lands are deemed to be merged into a deed subsequently issued, this -principle of law does not prevent reformation upon a showing of mutual mistake of fact, a misrepresentation or perpetration of a fraud. Otherwise there could never be a reformation.”). This is known as the merger rule. See generally Croswhite v. Rystrom, 256 Ark. 156, 162, 506 S.W.2d 830, 833 (1974) (“presumption is that all prior negotiations merge into the instrument, of conveyance”). • The parties in this case disagree on how to characterize Deed III, which is the “correction deed” that the circuit court reformed. The Elslegers maintain that Deed III is labeled a “Correction-Deed” but is actually a warranty deéd becaus'e it states that the Runsicks “will forever warrant and defend title to said lands against all claims whatever,” and because the correction deed does not merely- state that it is correcting a name. Deed III, in the Elslegers’ View, conveys the property to them without reserving any interests in the minerals to the Runsicks because it was clear that the grantors intended Deed III to vacate, supersede, or replace the earlier deed. In other words, Deed III is the “operative document” in this case. In contrast, the Runsicks view Deed III, not as the “operative document,” but as merely an extension of :a prior recorded deed. We disagree with the Elslegers’ assertion that Deed III is a warranty deed that conveyed mineral rights to them. Deed III is a correction deed. A correction deed operates ás a confirmation of the parties’ intentions in executing an original deed; in essence, a j ^correction deed is a voluntary reformation by the parties. See Mason v. Jarrett, 218 Ark. 147, 150, 234 S.W.2d 771, 774 (1950). A correction deed relates back to the filing date of the original deed. Id. It allows the parties to correct the situation without court action. The types of mistakes that can be corrected by a correction deed are quite limited, however, usually being confinéd to fixing an improperly witnessed deed, a description of the property, omission of conditions by mutual, mistake, or replacing a destroyed instrument. See 26A G.J.S. Deeds § 40. . It is settled Arkansas law that parties may use a correction deed to. fix a defective description of a property and that it relates back to the filing, date of the original deed. Mason, supra. Turning to the instrument in this case, Deed III is titled “Correction Deed.” It states: That this deed is made to correct the Grantors in a certain Warranty Deed dated December 5, 2007 and filed for record December 11, 2007 in Deed Book 2007, page 17643 made by Jeff Van Run-sick and Tonya Van Runsick, husband and wife, Grantors, to Kenneth Elsleger and Gloria Elsleger, husband and wife, Grantees, for valuable consideration certain lands lying in White County, Arkansas. The correct Grantors for the above said Warranty Deed should be Jeff Van Runsick and Tonya Runsick, husband and wife, Grantors. The following described property is situated in the County of White, State of Arkansas, to-wit: [legal description of Blackacre, which does not differ from the property descriptions in the previous two deeds] The parties hereto agree to correct the legal description on the Correction Deed and Warranty Deed. TO HAVE AND TO HOLD- the same unto the said GRANTEES with the right of survivor-ship, with all appurtenances thereunto belonging. And GRANTORS hereby covenants with the said GRANTEES that we will forever warrant and defend the title to said lands against all claims whatever, and that said lands .are free from all liens and encumbrances. InWe find the language in the correction deed insufficient to show that a transfer or a grant of a property interest was intended. Although no particular words of conveyance are required, it is necessary that there bé some operative words expressing'the fact of a sale or a transfer to convey legal title to interests in land. White v. Zini, 39 Ark. App. 83, 88, 838 S.W.2d 370, 372 (1992). The Elslegers have not argued that there are any particular operative words -in this instrument that express an intent by the Runsicks to transfer any property interest. We also find it important that Deed III lacks any statement that expresses, the parties’ intention to rescind the previous deeds. So we disagree with the Elslegers’ argument that Deed III was a warranty deed conveying any property interests. Deed III was a correction deed that was intended to correct Tonya Van Runsick’s name in Deed I, and it relates back to that deed. We agree, however, with the Elslegers that 'the circuit court erred in reforming the correction deed. Allowing a correction deed to effectuate a different mineral exception or mineral reservation than the original deed (Deed I) was legal error. A correction deed that adds reservation or exception language not stated in the original deed burdens the recording system. The same can be said for calling the forgotten mineral reservation or exception a scrivener’s error. Adding a reservation or adding a property interest goes beyond the scope of what a correction deed can do. The proper use of a correction deed is narrow in scope and can only be used to correct some facial imperfection in the title, like to correct a defective description of a single property when a deed recites inaccurate metes and bounds or to correct a grantor’s name. See Mason, supra. Our recording system is designed to allow a person to rely on it without using any outside research. The court therefore erred in [^changing or adding a mineral reservation or exception because this falls outside the limited scope of what a correction deed can do. IV. Conclusion The circuit court’s reformation of the correction deed was clearly erroneous because it went beyond the proper scope of a correction deed. We note that this case is not a declaratory-judgment action or a quiet-title suit. The Elslegers did not file a cross-claim against the Runsicks. The only action before the circuit court, and thus before us, is an action for reformation of Deed III by the Runsicks. Our reversal is limited to that- specific cause of action because the reformation of the correction deed, and the related attorney fees, are the only issues before us. Our opinion does not answer the essential question of who owns the mineral interest because that issue is not before us. The circuit court’s 18 February 2015 judgment order and its 7 April 2015 attorney-fees order are reversed entirely, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Virden and Whiteaker, JJ., agree.

WAYMOND M. BROWN, Judge 11 Appellant appeals from the circuit court’s revocation of her probation and subsequent sentence of eighteen months’ imprisonment in the Department of Community of Correction, to be followed by thirty-six months’ suspended imposition of sentence. On appeal, appellant’s sole argument is that the circuit court erred in finding that appellant’s violations were inexcusable. We affirm. On April 29, 2013, appellant pled guilty to, the offense of possession of a schedule I controlled substance, a Class D felony, and received a sentence of five years’ probation. On January 16, 2014, the State filed, a petition for revocation of probation alleging that appellant had committed the following violations: 1) failure to pay fines, costs, and fees as directed; 2) failure to report to probation and drug counseling sessions as directed; 3) failure to pay probation fees; 4) failure to notify sheriff and probation of current address and employment; and 5) positive drug tests for opiates, marijuana, amphetamines* and ben-zodiazepines on November 26, 2013, and December 19, 2013.. |gOn September 6, 2014, a search of a vehicle driven by appellant during a traffic stop disclosed sik hypodermic needles containing a brown substance. She denied knowing the needles were in the vehicle. She was taken into police custody. On September 11, 2014, the State filed an amended petition for revocation of probation adding violations for 1) a positive drug test for heroin/opiates on June 16, 2014; 2) operating a motor vehicle with no driver’s license in possession; and 3) possession of drug paraphernalia. A hearing on the revocation petition was held on February 19, 2015. Appellant’s probation officer testified that he gave’appellant her intake. Her intake included going over the conditions of her probation, which included the requirements that she report as directed, pay all supervision fees, and not violate any state, federal, city, or other law. He testified that appellant tested positive for marijuana and opiates on December 19, 2013; opiates on June 26, 2014; and opiates, benzodiazepines, and marijuana on October 14, 2014. He also testified that appellant failed to report to four appointments early on in' her probation, one of which was for her initial assessment with the drug counselor. He went on to testify that she had failed to report to him at all since October 14, 2014. | jjThe arresting officer during her September 6, 2014 traffic stop testified that appellant was driving without a license and that her demeanor changed to include the appearance of nervousness and - rapid speech as he approached the car window. He stated that upon finding the hypodermic needles, appellant told him that they were used for shooting dope, though she said they were for insulin at the police station. The officer testified that appellant denied that the needles belonged to her. The car belonged to a “Brian” and not appellant. Appellant asserted that she went to a drug counseling session in October 2014 and applied for the drug court program. She stated that she was borrowing the car from Brian David Hill and that she would not have consented to the search if she had known the hypodermic needles were in the car. . She denied being an intravenous user. She admitted that she had a “drug problem.” She claimed to have a prescription for the benzodiazepines, but she “never took Ms. Evans the paperwork.” She had no explanation for her positive marijuana drug test. She did not address her failure to report. She admitted not having her driver’s license with her when she was stopped on September 6, 2014. The circuit court found that appellant had inexcusably failed to- comply with probation conditions requiring that she report to her probation officer as directed and test negative on drug tests. It specifically noted appellant’s failure to attend drug counseling class as directed by her probation officer and her positive drug tests for opiates on June 26, 2014; (4and opiates, benzodiazepine, and marijuana on October 14, 2014. This timely appeal followed. If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension, the court may revoke the suspension at any time prior to the time it expires. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of a suspended sentence. This court will not reverse the trial court’s decision to revoke unless it - is clearly against the preponderance of the evidence. We must give due regard to the circuit court’s superior position in determining the credibility of witnesses and weight to be given their testimony. In order to support revocation of probation, the State has the burdén of proof but need prove only one violation of conditions of probation. Appellant argues that the evidence was insufficient to prove that she “inexcusably” failed to comply with a condition of her probation as required for revocation under Arkansas Code Annotated section 16-93-308(d). The term “inexcusable” is defined as “incapable of being excused or justified-Syn. unpardonable, unforgivable, | intolerable.” “Forgiva ble, pardonable, and excusable behavior” does not justify a probation revocation. Appellant first argues that appellee failed to prove that her failure to report was inexcusable. Normally, an appellant is limited on appeal by the nature and scope of the allegations as those allegations were addressed to the trial court. However, we treat appellant’s argument as one for sufficiency of the evidence supporting the revocation. While appellant did not make a motion to dismiss, .no such motion is necessary to preserve an objection to the sufficiency of the evidence to support a revocation. Appellant’s probation officer testified that she missed four appointments with him in the months of January and February. He further testified that she had no contact with him after October 14, 2014. Appellant argues that there was no proof submitted that she had appointments scheduled with her probation officer at those times, and therefore, the argument goes, there was no proof that she inexcusably missed appointments; However,- appellant did not argue before the circuit court that she was not supposed to meet with her | (¡probation officer at or during the times her probation officer asserted that she was absent. Nor did she argue below that she missed appointments after October 14, 2014, because she was allegedly imprisoned as she now argues before this court, despite her own testimony that she “did Christmas and Thanksgiving with [her] family and then sat in jail.” The State proved that appellant violated the condition of her probation that required that she report to her probation officer. Though appellant now argues that no proof was submitted that she had appointments scheduled with her probation officer on the specific dates that he asserted she missed and that she missed later appointments because she was in jail, no evidence of the same was submitted below. Furthermore, she only denied failing to report to drug counseling; she did not deny failing to report on any of the dates or time periods testified to by her probation officer. Accordingly, there was no evidence before the court that appellant’s violation may have been, or was, excusable. Because we affirm appellant’s probation revocation under the failure-to-report violation, we are not required to address appellant’s.argument that the circuit court erred in finding that her positive drug tests were inexcusable. However, we note that a bare assertion of a “drug problem” is not sufficient evidence to support a finding that a failed drug test is Inexcusable. We note also that this argu ment was not raised below,, therefore we will address it no further. Affirmed.'/ Gruber and Hixson, JJ., agree.' . While the needles were placed in evidence, the substance contained in them was never tested. . She also tested positive on a drug test on November 6, 2013; however, the probation officer did not detail what drug she testéd positive to in his violation report. .The dates were January 2, 2014; January 6 or 7, 2014 (the probation officer was not sure which date was correct); January 9, 2014; and February 25, 2014. Appellant was also unavailable when her probation officer conducted a home visit on January 8, 2014. . . No proof of either assertion was submitted. . What role Ms. Evans played was not clear. . Ta v. State, 2015 Ark. App. 220, at ¶ 3, 459 S.W.3d 325, 327 (citing Ark. Code Ann. § 16-93 — 308(d) (Supp. 2013)). . Id., 2015 Ark. App. 220, at ¶3, 459 S.W.3d at 328 (citing Sherril v. State, 2014 Ark. App. 411, 439 S.W.3d 76). .. Reyes v. State, 2015 Ark. App. 55, at ¶ 2, 454 S.W.3d 279, 280 (citing Owens v. State, 2009 Ark. App. 876, at ¶ 6, 372 S.W.3d 415, 419). . Peals v. State, 2015 Ark. App. 1, at ¶ 4, 453 S.W.3d 151, 154 (citing Vail v. State, 2014 Ark.App. 407, 438 S.W.3d 286). . Id. (citing Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d 190). . Anglin v. State, 98 Ark.App. 34, 37, 249 S.W.3d 836, 838 (2007) (citing Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001) (citing Random House Compact Unabridged Dictionary 977 (1996))). . Reyes, supra (citing Schubert v, State, 2013 Ark. App. 698, at ¶4, 2013 WL 6097999). . Weekly v. State, 2014 Ark. 365, at ¶ 5, 440 S.W.3d 341, 345 (2014) (citing Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000) (holding that a party cannot change the nature and scope of-his argument on appeal); Matthews v. Hobbs, 2013 Ark. 381, 2013 WL 5519960). . McWilliams v. State, 2009 Ark. App. 542, at ¶ 3, 336 S.W.3d 884, 885 (2009) (citing Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004)). . The record below is clear that appellant was not in jail until December 26, 2014, as her then-attorney advised the court. . We note that appellant's argument that she failed to report to her probation officer after October 14, 2014, due to being incarcerated on a warrant was itself a violation of the conditions of her probation which state that "The defendant shall five a law-abiding life, be of good behavior and not violate any state, federal, or municipal law.” . Appellant argues that chemical dependency has been recognized by the supreme court as a disease, which is true; however, she provides no caselaw showing that the same has been found to be a reasonable excuse for a probation revocation, nor did she provide any credible evidence that she was suffering from chemical dependency beyond her own testimony that she had a “drug problem.” See In Re Application of Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992). This court does not consider an argument, even a constitutional one, if the appellant makes no convincing argument or cites no authority to support it, and it is not apparent without further research that the appellant's argument is well taken. Nelson v. State, 2011 Ark. 429, at ¶ 8, 384 S.W.3d 534, 539 (2011) (citing Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006)). We further note Arms v. State, 2014 Ark. App. 593, 2014 WL 5482959, which stated regarding Arms’s argument that the trial court could have found her drug addiction to be a reasonable excuse for her noncompliance, that it was a legitimate argument to make before the trial court but not our court on appeal because it ignores our standard of review. Accordingly, this' court affirmed Arms’s revocation because she admitted that she understood the conditions of her probation and admitted violating those terms by using methamphetamine. Likewise, appellant makes no argument that she did not understand the conditions of her- probation, which she signed on April 29, 2013, and admitted to using drugs.

PER CURIAM hln 2010, appellant Brian F. Ward entered a plea of guilty to rape and sexual assault in the second degree. He- was sentenced as a habitual offender to concurrent sentences of 120 months’ imprisonment -for rape and 180 months’ imprisonment for second-degree sexual assault. Imposition of an additional 180 months’ imprisonment for second-degree sexual assault was suspended. With respect to the 180-month sentence, the trial court applied Arkansas Code Annotated section 16-93-609 (Supp. 2003), requiring that the sentence imposed was to be served without possibility of parole. On January 29, 2015, Ward filed in the trial court a pro se petition seeking a writ of error coram nobis. The petition was denied, and Ward brings this appeal. The standard of review of an order entered by the trial court om a petition for writ of error coram nobis is whether the” trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7, at 13-14, 2014 WL 197789. An abuse of discretion occurs when the trial court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. |aThe trial court’s findings of fact, on which it bases its decision to grant or deny the petition for writ of error coram nobis, will not be reversed on appeal unless clearly erroneous or clearly against the preponderance of the evidence. Newman, 2014 Ark. 7, at 13-14, 2014 WL .197789. There is no abuse of discretion in the denial of error-coram-nobis relief when the claims in the petition were groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to .the record. Roberts v. State, 2013-Ark. 56, 425 S.W.3d 771: The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. 'A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. We first note that Ward has raised a number of claims for the first time in this appeal; including the argument in his brief that his' sentence was illegal because the statute ofjjlimitations for the offense of tape had elapsed by the time the judgment' in his case was- entered. Ah appellant is lirriited to the scope and nature of the arguments he made belbw and that were considered by the lower court in rendering its ruling. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. We have routinely held that we will not hear arguments raised for the first time on appeal. ’ Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Likewise, the grounds for relief that Ward raised below, but not on appeal, are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Ward contended in his petition, and, argues in this appeal, that a writ of error coram nobis is warranted because he was not afforded effective assistance of counsel at the plea proceeding. This court has repeatedly held that ineffeetive-assis-tance-of-counsel claims are not cognizable in error-coram-nobis proceedings and that such proceedings are not a substitute for raising ineffective-assistance-of-counsel claims under our postconviction rule. Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark. 151, 460 S.W.3d 285. 14Ward further asserts in his brief that he was entitled to issuance of the writ on his allegations of ineffective assistance of counsel under Martinez v. Ryan, — U.S. , 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). His reliance on Martinez, however, is misplaced. The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim:'that his trial attorney was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting habeas relief on that claim, if, the prisoner had no attorney to-represent.him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. Martinez does not require this court to expand the scope of a coram-nobis proceeding to allow for issuance of a writ of error coram nobis to permit a collateral challenge to a judgment of conviction based on claims of ineffective assistance of counsel or the other claims raised by Ward in his petition. See Williams v. State, 2015 Ark. 102, 460 S.W.3d 274 (per curiam); see also Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Again, a coram-nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were extrinsic to the record that would have prevented rendition of the judgment at trial. Neuman, 2009 Ark. 539, 354 S.W.3d 61. ' Ward also contends that'the trial court erred when he entered his plea of guilty by not complying with Arkansas Rules of Criminal Procedure 24.4 and 24.6, which pertain to the responsibilities óf thé trial court when accepting a plea of guilty and in not properly evaluating his competency to enter the plea. The allegations are also outside the purview of a. coram-nobis proceeding. Assertions of trial error •do not provide a ground to grant a writ of error coram nobis. See Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). When | Ba defendant enters a plea of guilty, the guilty plea is his trial, and claims- of trial error should be brought at trial. See Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984); see also Wilburn v. State, 2014 Ark. 394, 441 S.W.3d 29 (per curiam). Finally, Ward argues that the judgment in his case was invalid on its face because it was illegal undér Arkansas Code Annotated section 5-4-104 (Repl. 2009) to suspend imposition of an additional 180 months’ imprisonment for second-degree sexual assault. We consider the claim even though it-was not raised in the petition filed in the trial court inasmuch as this court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction that can be addressed at any time. See. Richie v. State, 2009 Ark. 602, at 4, 357 S.W.3d 909, 912. In Arkansas, sentencing is entirely'á matter of statute. Walden v. State, 2014 Ark. 193, at 3-4 433 S.W.3d 864, 867; Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007) (citing Ark. Code Ann. § 5-4-104(a) (Repl. 2013) (“No defendant convicted of an'offense shall be sentenced otherwise than in accordaiicfe with this chapter.”)). In stating this general rulé, this court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006). Second-degree sexual assault is a Class B felony. Ark.’ Code Ann. § 5-14-125(b)(1) (Repl. 2006). The sentencing range for a Class B felony is 60 to 240 months’ imprisonment. Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2006). The 180-month sentence imposed on Ward for sexual assault was, thus, within the-statutory range. See Gilliland v. State, 2014 Ark. 149, 2014 WL 1344405 (per curiam). The suspended imposition of an additional 180-month sentence for the same [(¡offense, however, caused the sentence to exceed the statutory • range allowed for the offense, rendering it illegal-on its face. While, in pertinent part, Arkansas Code Annotated sections 5-4-104 ands -5-4-301 do not prohibit the suspended imposition of sentence for the offense of sexual assault in the- second degree, the trial court could not enter a judgment imposing a sentence for 180 months’ imprisonment and also suspending imposition of an additional 180 months’ - imprisonment because the judgment had the effect of placing Ward under the jurisdiction of the court of 360 months when the maximum sentence authorized by statute was 240 months. The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment. Ark, Code,.Ann. § 5-4-104(e)(3) (Supp. 2009). If a court suspends imposition of sentence, the period of suspension cannot exceed the maximum prison sentence for the offense. Ark. Code Ann. § 5-4-306(a)(l) (Supp. 2006). While a trial court can impose a suspended sentence for up to the maximum term of imprisonment allowed, when the suspended sentence is combined with a period of imprisonment, the total period of imprisonment is subject to the limitations of section 5-4-401. Walden, 2014 Ark. 193, 433 S.W.3d 864. The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. State v. Webb, 373 Ark. 65, 71, 281 S.W.3d 273, 277 (2008). We remand the matter to the trial court for resentencing on the second-degree sexual-assault conviction. In a similar claim, Ward argues that the judgment was facially invalid because Arkansas Code Annotated section 16-93-609 was applied to his sentence for sexual assault. The statute provides that any person-who commits a felony offense after August 13-, 2001, |7and who has previously been found guilty of, or pleaded guilty to, a felony offense, shall not be eligible for parole with respect to. the sentence imposed. Ark. Code Ann. •§ 16-93-609(b). As stated, Ward was sentenced as a habitual offender; We have held -that the statute applies to a sentence for second-degree sexual assault. See Pitts v. Hobbs, 2013 Ark. 457, at 2, 2013 WL 5968940. Accordingly, the sentence was not illegal under section 16-93-609. Affirmed in part and remanded for re-sentencing in part. . The trial court noted that, even if the claims of ineffective assistance of counsel were considered as claims for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2010). Ward would be entitled to no relief because the request for relief would not have been timely filed. When a petitioner under the Rule entered a plea of guilty, the petition must be filed in the trial court, pursuant to Rule 37.2(c)(i), within ninety days of the date' * of entry of judgment. • The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, a trial court lacks jurisdiction to grant postconviction relief. Muldrow v. State, 2014 Ark. 333, at 2, 439 S.W.3d 46, 47 (per curiam).

M. MICHAEL KINARD, Judge 1 Appellant .Erin Potts challenges the trial court’s findings regarding the division of property and child custody in this divorce case. Erin and Timothy Potts were married in January 2010- and had a daughter in August 2012. Timothy filed for divorce in October 2013, and both parties sought sole custody. A divorce decree was entered in January 2015 awarding.-the parties joint custody and making a division of property. We affirm in part and reverse and remand in part. At the July 29, 2014 hearing, the parties announced a custody agreement, although it had not yet been reduced to writing. Timothy’s attorney stated that the agreement was for “true joint custody” with the parties alternating custody every week. The agreement included -the right of first refusal to care for the child when the party with custody was unable. When this option was exercised, the parties agreed that the other parent would have 12the right to make up that time. The agreement was for Timothy, a school teacher, to make up lost time during school breaks. If those time periods did not suffice, another option was for him to keep the child overnight on Fridays during Erin’s weeks of custody. Erin’s attorney clarified some provisions and stated that if one party exercised substantially more time than the other party through the right of first refusal, the make-up time could be accomplished by visitations with advance notice. Testimony was taken only to establish the grounds for divorce and residency. The parties informed the court that they were still working on a property settlement; therefore, no decree would be entered until a settlement was reached. On November 4, 2014, Timothy'’filed a motion'to modify order, although he acknowledged that a divorce decree had not yet been entered. Erin did' not work outside the home and had been keeping the child pursuant to the right of first refusal while Timothy worked. Timothy alleged that Erin had been uncooperative in allowing-'him to make up his lost time with the child. He requested that he be awarded sole custody or that the court terminate the right of first refusal. Erin denied the allegations, alleged that it was in: the child’s best interest to be watched by her rather than strangers while Timothy worked, and alleged that no make-up time should be required when a parent is working. Thereafter, the parties’ attorneys sent numerous letters to the court regarding custody and property-division issues. Regarding custody, Erin proposed a decree setting out specific times when school was on break for Timothy to make up his lost time. Timothy responded that Erin’s proposal did not reflect the parties’ agreement or solve the issue raised in his [¡¡motion. He attached a proposed decree that he claimed represented the parties’ agreement and requested a hearing on his motion to- modify. Eriri requested that the court order mediation if it did not approve of her proposed decree. The court responded in a letter that it was setting aside the right of first refusal because it had become “too cumbersome.” Erin then requested that the court-refrain from making any modifications until evidence had been presented at a hearing. . Regarding property division, Erin requested that the court give the parties ninety more days for settlement negotiations and order mediation if negotiations failed. Timothy informed the court that Erin had not provided a counteroffer and asked that the court hold a hearing if they could not reach an agreement in thirty days. In a November 21, 2014 letter, the court gave the parties ten days to reach an agreement or the house and its contents would be sold. The court stated that it did “not feel-a hearing on this matter would be beneficial due to the fact that I am fully aware of the position of each of you and your clients- and no other factual conclusions could be resolved.” Timothy’s attorney sent another letter arguing that the house should not be sold because it was premarital property and enclosing a copy of the deed, the assessment, and a recent appraisal showing the home had decreased in value. Erin asked for ten more days for settlement negotiations, and Timothy informed the court that he had still not received a counteroffer from Erin. A letter from the judge dated December 10, 2014, stated that he saw no reason for an additional hearing, that the parties had until December 19 to reach a property agreement, and that Erin would be entitled to equity resulting from the mortgage’s Uprincipal reduction paid by marital funds. ' On January 27, 2015, Timothy’s attorney sent the court a letter with two proposed decrees. One decree ordered all personal property be sold; the other contained a division of property that his attorney claimed was “very close” to. the only proposal they had ever received from Erin. A divorce decree was entered on February 4, 2015, dividing the parties’ property and debts and providing for joint custody pursuant to the parties’ agreement but without the right of first refusal., Erin filed a motion for reconsideration, arguing that the decree included multiple provisions to which she never agreed and for which no testimony had been given. Erin’s motion was denied, and she timely appealed. Erin first argues that the trial court’s findings as to the parties’ assets and how they should be divided are clearly erroneous because they are not supported by any evidence. She argues that the court could not evaluate the credibility of witnesses or decide what was equitable because it took no testimony on property division, and the information provided by Timothy’s counsel in letters did not constitute evidence. Erin fails, however, to identify any specific division of property with which she disagrees or explain what evidence she would have presented at a hearing. It is the appellant’s burden to demonstrate and explain reversible error. Lowder v. Gregory, 2014 Ark. App. 704, 451 S.W.3d 220. In Lowder, the appellant complained that she was not allowed to present additional evidence at the final hearing. We declined to reverse, .stating that “she does not explain what particular proof she was prohibited from admitting into evidence or how she was prejudiced by its exclusion.” | sErin’s attorney repeatedly asked for more time to reach a settlement, which the trial court allowed. Timothy’s last letter urged the court to enter his proposed decree reflecting a property division very close to what Erin wanted, and Erin did not respond. The record does not show that Erin ever proposed a property division to the trial court or identified any specific property that was in dispute upon which she wanted the court to hold a hearing. Nor has she identified any such property on appeal. She has failed to explain what proof she was prohibited from presenting or hów she was prejudiced by its exclusion. We will not reverse' in the absence of a showing of prejudice. Lowder, swpra. Thus, we affirm the trial court on the issue of property division. Erin next argues that the trial court erred when it modified the custody agreement' without a hearing. She contends that the agreement announced on July 29, 2014, should have remained in effect until a hearing. Erin claims that she was prejudiced because the parties’ agreement may have been materially different without the right of first refusal. Prior to the entry of the divorce decree, the parties were no longer in agreement with regard to custody, and they both requested a hearing.' Although the decree purported to be “pursuant to the parties’ agreement,” it did not represent the entire agreement because it left out the right of first refusal. Timothy argues that the court found that elimination of the right of first refusal was in the best interest of the child. However, no evidence was ever submitted regarding the child or her care. With regard to custody and visitation, the primary consideration is the welfare and best interest of the child. Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773. On appeal, | r,we perform a de novo review, but we will not reverse unless the. findings are clearly erroneous. Id. Factual .findings must, be, based on evidence. See Blaylock v. Blaylock, 2011 Ark. App. 3, 2011 WL 51465. In this case, no testimony was ever taken. regarding custody, visitation, or the best interest of the child. When. a, parent is denied the opportunity to present evidence, we have reversed the trial court’s decision to-grant or deny custody and visitation modifications. See Simmering v. Simmering, 2014 Ark. App. 722, 452 S.W.3d 592; Johnson v. Cheatham, 2014 Ark. App. 297, 435. S.W.3d 515. Here, .Erin was denied the opportunity to submit evidence regarding the initial custody determination when the agreement fell apart. We therefore reverse and remand the custody determination for further proceedings consistent with this opinion. For her final argument,’. Erin contends that the trial court erroneously omitted from the divorce decree the parties’ agreement that Timothy would relocate to Northwest Arkansas. We do not address this argument because the custody issue is reversed and remanded. Affirmed in part; reversed and remanded in part. . Gladwin, C.J., and Abramson, J., agree.

PER CURIAM hln .1995, appellant Jackie L. Williams was charged with three counts of rape in case no. 6QCR-95-2566 in the Pulaski County Circuit Court. The counts were severed for trial. Williams was found guilty by a jury in count three and sentenced as a habitual offender to life imprisonment. We affirmed. Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). Williams was found guilty by a jury in count two and sentenced as a habitual offender to twenty-five years’ imprisonment. The Arkansas Court of Appeals affirmed. Williams v. State, CR-96-725, 1997 WL 160778 (Ark. App. Apr. 2, 1997) (unpublished) (original docket no. CACR 96725). On count one, Williams was found guilty by a jury and sentenced to life imprisonment as a habitual offender. We affirmed. Williams v. State, CR-98-1027, 2000 WL 86599 (Ark. Jan. 20, 2000) (unpublished per curiam). The sentences for the three offenses were ordered to be served consecutively. |2On April 6, 2015, Williams filed in the trial court a pro se petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2006). The petition was denied, and Williams brings this appeal. ' There is a provision in section 16-90-111 that allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal presents an issue of subject-matter jurisdiction. See Walden v. State, 2014 Ark. 193, 433 S.W.3d 864. While the time limitations on filing a petition under section 16-90-111(a)(b)(l) on the grounds that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam). For that reason, the trial court had authority to grant relief under the statute if the sentences imposed on Williams were indeed illegal. Id.) see also Hill v. State, 2013 Ark. 291, 2013 WL -3326790 (per cu-riam). As grounds for his contention that the sentences imposed on him were illegal, Williams argued that thé. amended felony information in his case was unconstitutional. He contended that (1) the information was irregular and that it violated the constitutional provisions against double jeopardy because the information encompassed three separate offenses, and he was tried three times Tor the same offenses; (2) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing, all exculpatory evidence to the defense; (3) he was entitled to indictment by grand jury under Rule 7 of the Federal Rules of Criminal Procedure and Arkansas and federal law. Williams did not allege that the sentences imposed were outside- the statutory range for the offenses as set by statute. ,|SA sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Bell v. State, 2015 Ark. 370, at 3, 2015 WL 5895447 (per curiam); see also Halfacre, 2015 Ark. 105, 460 S.W.3d 282. Here, Williams did not contend that the sentences imposed on him exceeded ' the statutory maximum. Williams was convicted of three Class Y felonies. Ark. Code Ann. § 5-14-103(b) (Supp. 1993). Under the provisions of Arkansas Code Annotated section 5-4-401(a)(1) (1987), in effect when Williams was convicted, a term of ten to forty years or life could be imposed for a Class Y felony. Accordingly, the life sentences and the twenty-five-year sentence imposed on Williams were within the range allowed by statute and were not facially illegal. Ehler v. State, 2015 Ark. 107, at 2, 2015 WL 1198099 (per curiam) (When the sentences imposed on the petitioner were within the statutory range for the offense, the sentence was legal on its face and not subject to challenge under section 16-90-111.). Constitutional violations' such as those raised , by Williams challenging the judgments on grounds of double jeopardy and a Brady violation, which did not' implicate the facial validity of the judgment, did not render the sentences imposed illegal. See Redus v. State, 2013 Ark. 9, 2018 WL 7851469 (per curiam). The claims advanced by Williams- in his petition did not allege Ran illegal sentence of the type that is jurisdictional in nature; rather, the grounds for relief were of the type that should have been raised at trial, on appeal, or,. to the extent that- the claims were intended as allegations of ineffective assistance of counsel, in a timely-filed petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015). Stanley v. State, 2013 Ark. 483, 2013 WL 6157324 (per curiam). Assertions of constitutional error are not cognizable under section 16-90-111. Id. A trial court’s decision to deny relief under section 16-90-111 will not be overturned unless that decision is clearly erroneous. Gilliland v. State, 2014 Ark. 149, 2014 WL 1344405. The trial court’s decision in this case was not clearly erroneous inasmuch as Williams did not meet his burden of demonstrating in his petition that the sentence was illegal. Affirmed. . Williams’s claim of a defective charging instrument has been specifically rejected by this court. Section 1 of amendment 21 to the Arkansas Constitution provides that “all offenses heretofore required to be prosecuted by indictment -may be prosecuted either by indictment by a grand jury or information filed ■ by the Prosecuting Attorney.” Smith v. State, 2012 Ark. 311, at 2, 2012 WL 3365218 (per curiam). States are not required to charge by indictment but may charge by information. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed, 232 (1884). This court has addressed this issue on a number of occasions and has. refused to extend the right to grand jury indictment to proceedings in this state. Taylor v. State, 303 Ark. 586, 593, 799 S.W.2d 519, 523 (1990); Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).

KENNETH S. HIXSON, Judge , | ¶Appellant Amanda Miller appeals from the .termination of her parental rights to her three daughters, A.C., age ten, E.M., age six, and N.M., age two. On appeal, Amanda argues that there was insufficient evidence to support any of the statutory grounds for termination. We affirm. 'We review termination'of parental rights cases de novo. Mitchell v. Ark. Dep’t of Human Sen’s., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate, parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2015); M.T. v. Ark. Dep’t of Human Sen’s., 58.Ark. App. 302, 952 S.W.2d 177 (1997). |2Clear .and convincing evidence is that degree of proof that will produce in the factfinder' a firm conviction as to the allegation' sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Sen’s., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it. the reviewing court on the entire evidence is left with a definite and firm conviction-that a mistake has been-made. Yarborough v. Ark. Dep’t of Human Sen’s., 96 Ark. App. 247, 240 S.W.3d 626 (2006). Amanda Miller is married to William Miller, the biological father of the two youngest children and A.C.’s stepfather. On July 30.2014. appellee Department of Human Services (DHS) filed a petition for emergency custody of all three children based on allegations that A.C. had been repeatedly raped by her stepfather. Attached to the petition was an affidavit stating that the Arkansas State Police had received a report from the child abuse hotline, and that investigators subsequently interviewed A.C., E.M., and Amanda. During her interview. A.C. disclosed that William had been having vaginal, anal, and oral sex with her for more than a year. A.C. was able to describe the events in detail, and stated that it happened “all the time.” A.C. indicated that the sexual abuse had occurred in her bedroom, in his bedroom, and in the shed, and that it always happened when her mother was not at home. ,.A.C. stated that she never told her mother about this - because she was afraid that her mother might get mad at her. | aDuring the interview with E.M,, E.M. stated that she had seen A.C. “eat daddy’s hoo hoo,”. which is what she called his penis. E.M. also told the investigator that she had told her mother about what she had seen, to which her mother replied, “Okay.” ' When Amanda .was .interviewed and asked about these allegations, she denied that A.C. could have been abused, stating that William had never been alone with A.C. and that A.C. was not telling the truth. • Amanda also denied that E.M. had ever told her anything about the abuse. Based on the information in the affidavit, the trial court entered an ex parte order for emergency custody of all three children on July 30, 2014. A probable-cause order was entered on August 19, 2014, wherein the trial court found probable cause that the emergency conditions continued and that it was necessary for the children to remain in DHS custody. An adjudication hearing was held on November 19, 2014. At the adjudication hearing, DHS played a video recording of A.C.’s statements to the investigator describing in detail how A.C.’s stepfather had committed the sexual abuse against her. A recording of E.M.’s interview was also introduced. On December 18, 2014, the trial -court entered an adjudication order finding the children to be dependent-neglected. In the adjudication order, the trial court specifically found the recorded, testimony of A.C. to be very credible. The trial court’s finding of dependeneymeglect was based on clear and convincing evidence of William’s chronic; sexual abuse of A.C. and Amanda’s failure to protect A.C. from the sexual abuse. |4DHS filed a petition to terminate Amanda’s parental rights, and the termination hearing was held on March 31, 2015. The trial court entered an order terminating Amanda’s parental - rights to all three of her children on May 18, 2015. ' In the termination order, the trial court found by clear and convincing evidence that termination -of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341 (b)(3)(A)(i) & (ii)-(Supp. 2015). .The trial court also found clear and convincing evidence of the following three statutory grounds under subsection (b)(3)(B): (vi)(a) The court has found the juvenile or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile’s parent or parents or stepparent or stepparents. (vii)Cq) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that .demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare arid that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent isáues or factors or rehabilitate the parent’s .circumstances that prevent the placement of the juvenile in the custody of the parent. (ix)(q) .The parent is found by a court .of competent jurisdiction, including the juvenile division of circuit court, to: (3) (A) Have subjected any juvenile to aggravated circumstánces. (B) “Aggravated - ■' circumstances” means: (i) A juvénile has been abandoned, ■ chronically abrised,- subjected to ex- ■ treme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is - little likelihood that- services to the • family will result in successful reunification[.] |fiIn the termination order, the trial court found that Amanda had steadfastly denied that' any sexual abuse had occurred,- that she did not intend to separate from William, and therefore that Amanda’s failure to protect her children would continue if any of her children were returned to her. In her testimony at the termination hearing, Amanda stated that she did not believe that any sexual abuse had occurred and that “I haven’t believed A.C. since day one.” Amanda maintained that she never left her children alone with her husband, and stated that she would need to see physical proof before she would believe that anything had happened. Amanda testified that “I just don’t believe my daughter and I never will.” When asked if she would be willing to undergo counseling to try to see things a different way, Amanda replied, “I’d undergo the counseling but I still just don’t think he did it.” Amanda indicated that she thought that no amount of counseling would change her mind, but that she would be “willing to give it a shot.” On cross-examination, Amanda testified that although A.C. had told her. about being sexually abused at the age of five, A.C. said that she was joking. Amanda stated that A.C; would always talk about sex at the age of five. Amanda also ■ acknowledged that, despite her home being in' an extreme state of uncleanliness, she found time to pull-,the carpet out of A.C.’s bedroom after DHS removed the children from the home. According to A.C.’s statements, William had ejaculated on this carpet during the times that he had abused her in her bedroom. Amanda stated that she wanted-the carpet gone because A.C. had been using the bathroom on it and it smelled. DHS workers, however, suspected that Amanda had removed the carpet to cover up the abuse. | (¡Melanie Taylor, A.C.’s counselor, testified that she counseled A.C. due to the trauma associated with being sexually abused. 1 Ms. Taylor stated that during the visits A.C. would sometimes exhibit aggression and act out sexually. When Ms. Taylor spoke with Amanda about the sexual abuse, Amanda told her that A.C. was lying. According to Ms. Taylor, Amanda told her that there was something in William’s background that happened a long time ago and that she went to great lengths to make sure that he was never alone with the children. Ms. Taylor testified that there was not much of an emotional attachment between Amanda and A.C., and that she did not think Amanda would support A.C. Ms. Taylor further indicated that she did not think Amanda would ever acknowledge that any problem existed involving sexual abuse, and that Amanda showed no willingness to be open to that idea or try to work on the issue through counseling. Arkansas State Police Investigator ■Sherry Buckner was the investigator who interviewed A.O. about the suspected abuse. Investigator Buckner made a true finding of sexual abuse by William and a true- finding of failure to protect on Amanda. Upon speaking with Amanda, Investigator Buckner believed that'Amanda knew that William had been molesting A.C. According to Investigator Buckner, Amanda was very antagonistic toward A.C. and seemed to have little concern for her. When Investigator Buckner spoke to Amanda about a protection plan, Amanda immediately told her that both A.C. and E.M. could live with Amanda’s mother. DHS caseworker Rachel Freeman observed the visits between Amanda and her children. Ms. Freeman testified that Amanda was very loving toward E.M. and N.M., but that she was very negative toward A.C. Ms. Freeman stated that A.C. would repeatedly tell |7Amanda, “I love you mom,” but that Amanda would not tell A.C. that she loved her and would not give A.C. a hug. Ms. Freeman said that Amanda did not seem to care about A.C., almost as if she was not her child, and that Amanda told Ms. Freeman that she did not want to visit A.C. anymore. Ms. Freeman also stated that, since the children had been removed from the home, Amanda had sold most of the children’s belongings. DHS worker Keith Thomas testified that the children were adoptable. Mr. Thomas testified that Amanda blamed the children for everything that had occurred, and that the children would be at risk of harm if they were returned to their parents. In this appeal, Amanda does not challenge the trial court’s finding that termination of her parental rights was in her children’s best interest. Instead, she challenges each of the statutory grounds found by the trial court in support of the termination order. As to the ground for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi), which permits termination when a juvenile has been found dependent-neglected as a result of neglect or abuse that could endanger the life of the child, or sexual abuse perpetrated by a parent or stepparent, Amanda contends that this ground was not sufficiently alleged in DHS’s termination petition. Amanda asserts that the petition only alleged that it was seeking termination under the sexual-abuse element of this ground as it applied to William, and not on the neglect element of this ground. As such, Amanda argues that she was not put on proper notice of this ground, and that this ground must be excluded as one capable of supporting termination. The two remaining grounds are the “other factors” ground pursuant to subsection (b)(3)(B)(vii), and the “aggravated circumstances” ground pursuant to subsection |s(b)(3)(B)(ix). Amanda argues that neither of these grounds supports termination because DHS never offered her any counseling to address her denial that sexual abuse had. been committed by William against A.C. The “other factors” ground is dependent on “the offer of appropriate family services,” and “aggravated circumstances” includes an element that “there is little likelihood' that services will result in successful reunification.” Because DHS made no effort to provide counseling services to Amanda, she contends, that neither of these grounds was established and that the order terminating her parental rights should be reversed. We do not agree with Amanda’s contention that there were no statutory grounds supporting the termination order. Only one statutory ground must be proved to support the termination of parental rights. Willingham v. Ark. Dep’t of Human Sen’s., 2014 Ark. App. 568, 2014 WL 5382622. On this record, we conclude that the trial court committed no error in finding that Amanda had subjected her children to aggravated circumstances pursuant to Arkansas Code Annotated section 9-27-341(1i)(a)(3), because there was little likelihood that services to the family would result in successful reunification. The reason the children were removed from the home was because of sexual abuse committed against A.C. by Amanda’s husband, William. A.C. gave a detailed account about how William repeatedly executed the sexual abuse over a period of more than a year, and the trial court found A.C. to be very credible. Despite this evidence of abuse, and evidence that both A.C. and E.M. had at some point disclosed sexual abuse to Amanda, Amanda refused to believe that anything inap- propínate had occurred. Amanda made it clear in her testimony that she never believed A.C., and that she would never believe-that any sexual |aabuse'occurred without physical proof. From the testimony of DHS’s witnesses, it was dear that Amanda had shown virtually.no affection or concern for A.C. since the allegations of abuse had surfaced. -Although Amanda did agree .that she would give- counseling “a shot,” she also indicated that .counseling was not going to change her mind about whether any/' sexual abuse- had occurred. Given - Amanda’s denial of the abuse¡ and her disregard of A.C.’s-well-being, the trial court correctly determined that Amanda’s failure to protect her children, would continue if the children were returned to her. Based on the evidence presented, we hold that the trial court’s finding that there was little likelihood that services would result in successful reunification was not clearly erroneous. Therefore, there were statutory grounds to support the termination of Amanda’s parental rights, and we affirm the termination order. Affirmed. Gruber and Brown, JJ., agree. . E.M.’s and N.M.’s father, William Miller, had his parental rights terminated, and A.C.’s father, Patrick Dowell, had his parental rights terminated. Neither of the fathers has appealed.

CLIFF HOOFMAN, Judge '• 11 Appellant Kimberly L. Fowler appeals from an April 7, 2015 order by the Craig-Head County Circuit Court finding her in contempt and granting judgment in favor of appellee Kenneth R. Hendrix. On appeal, Fowler contends (1) that the circuit court erred in finding her in contempt and responsible for child support after her visitation terminated in October 2010 and (2) that the circuit court erred in not applying the doctrine of equitable estoppel. We affirm. Fowler and , Hendrix were, married on September 1, 1990. They have two children, a son, K.H., born on November 19, 1991, and a daughter, K.L.H., born on December 31, 1996. Hendrix filed a complaint for divorce on February 24, 2006, and a divorce decree was filed on March 27, 2006. The parties entered into a written settlement agreement dated February 24, 2006, and an amended agreement dated March 27, 2006. The agreements were laconfirmed and incorporated into the divorce decree. In relevant part, the settlement agreements stated that the parties were to share joint custody of the children, with Hendrix acting as the primary custodial parent, and that “no child support [was] to be paid by either party.” The second paragraph of the agreements provided that Hendrix would continue to pay for the children’s health insurance and that certain expenses, such as medical bills not covered by insurance, prescription drugs not covered by insurance, and extracurricular activities as mutually agreed upon by the parties, would be shared equally by Hendrix and Fowler. Subsequent to the divorce decree, there was extensive litigation relating to child custody and visitation, most of which is not relevant to this appeal. However, on September 10, 2007, the circuit court entered an agreed order finding that it would be in the best interest of the parties and the children that any regularly scheduled visitation be held in abeyance until further orders of this court. The parties acknowledge that when the children, or either child individually, are ready to visit with the defendant on a regular basis, this court has the power and authority to reinstate appropriate visitation. Any requirement of support by the defendant as set forth in paragraph 2 of the stipulation and property settlement agreement dated February 28, 2006, is terminated. In the event regular visitation is re-established with the defendant, then defendant will resume the requirement of support as set forth in paragraph 2 of the stipulation and property settlement agreement dated February 23, 2006. After additional litigation not relevant to this appeal, the circuit court made the following findings in an agreed temporary order filed on April 5, 2010: 3. On November 10, 2009, the Court entered its Order granting defendant specified visitation and placing restrictions on contact between defendant’s husband | aand the minor child.' The parties were ordered into mandatory counseling with the minor child[, K.L.H.]. 4. In light of the progress during counseling sessions, the Court doth find that it is in the minor child’s best interests for the trial scheduled for June 28, 2010, to be removed from the Court’s docket. 6.Defendant shall receive daytime visitation with the minor child from 3:30 -p.m.-to 8:00 p.m. on. each Tuesday and Thursday, .with visitation to be-increased on the recommendation of the counselor. 6. Any lifting of the- restrictions of contact between the minor child and Chris Fowler shall be implemented only after the written recommendation of the child’s counselor, 7. The defendant is ordered to pay the plaintiff for the support and maintenance of the child the sum of $500.00 each and every.month commencing April 1; 2010, and thereafter on the first day of each mqnth, and continuing until said child reaches the age of .18 years or graduates from high school, - whichever occurs last.... .- 8. Either party may request that this matter be reset for final trial.. ■ 9. All prior orders shall remain in full force and effect unless specifically modified herein. On January 6, 2015, Hendrix filed a petition for contempt, alleging that Fowler had willfully failed to pay the child support ordered by the circuit court in the April 5, 2010 order. He requested the-.circuit court 'to award him- a judgment 'in. the amount of the child-support-arrearage in addition to attorney’s fees and costs. Fowler filed a response generally denying the. allegations and affirmatively pleading the defenses of laches, unclean hands, and estoppel. A hearing was held on February 24, 2015. At the hearing, Hendrix testified that he had had full custody of the children since September 10, 2007. At the time of the hearing, both children were over the age of eighteen, and the younger child was a senior in high school. He further explained that Fowler had agreed to pay monthly child support as reflected -in -the April 5, 2010 order, and she had madé monthly payments from April to October 2010. He denied. on- cross-examination that his purpose throughout the litigation was to frustrate Fowler’s visitation with her children and |4denied that he tried to convince the children to not. visit their mother. He further denied that he had waited to file the petition for contempt until after the children had turned eighteen because he did not want Fowler to reestablish visitation or because he thought that the support obligation was contingent upon Fowler’s visitation. ¡ Although she'had funds to pay the child support, Fowler ceased to' make any child-support payments after October 2010 because she had voluntarily stopped her visitation with her daughter. She testified that she agreed to stop her visitation during one of her counseling sessions with her daughter after a discussion at that time with both her daughter and the counselor. She further testified that she agreed to continue visitation with her daughter but only “at her [daughter’s] will.” She contended that she had not willfully violated the circuit court’s order because she thought that the preyious 2007 order was still applicable and that if she was not receiving regular visitation, then she was not responsible for any support. Fowler’s counsel orally argued that, although the 2010 order , set the child support at $500 per month, it did not modify the provision of the 2007 order that child support would stop if visitation stopped. Alternatively, Fowler’s counsel argued that Hendrix should be estopped from collecting the child-support arrearage based on his conduct. Counsel further argued that Hendrix was aware of the circuit court’s previous orders, that he frustrated Fowler’s visitation with the children, and that he did not try to collect the child-support arrearage until after the children had turned eighteen. At the conclusion of the hearing, the circuit court orally pronounced that it found Fowler in -contempt, and although the circuit court did not sanction her, it awarded a | (¿judgment in Hendrix’s favor. It specifically found that the April 5, 2010 agreed order controlled and that it required Fowler to pay child support.. Additionally, the circuit court noted that the 2010 order allowed either party to request that the matter be reset for a final hearing and that Fowler did not schedule a final hearing, even though she had felt that her visitation impacted whether the ordered child support should continue. After the hearing, the circuit court filed a written order on April 7, 2015. The circuit court specifically found that Fowler was in contempt and that she had failed to pay the. child support ordered in the April 5, 2010 order, which resulted in a $26,000 arrearage. Additionally, the circuit court found that Fowler had failed to prove any equitable defenses at trial. Therefore, the circuit court awarded Hendrix a judgment of $27,741.25, including the child-support arrearage, attorney’s fees, and costs. This timely appeal followed. . Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Omni Holding and Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). In order to establish civil contempt, there must be willful disobedience of a valid order of a court. Applegate v. Applegate, 101 Ark. App. 289, 275 S.W.3d 682 (2008). However, before one can be held in contempt for violating the circuit court’s order, the order must be definite in its terms and clear as to what duties it imposes. Id. Additionally, we have stated that we review child-support cases de novo on the record. Chitwood v. Chitwood, 2014 Ark. 182, 433 S.W.3d 245. Moreover, we will not reverse, a circuit court’s finding of fact unless it is clearly erroneous. Id. In reviewing a circuit court’s 1 «findings, we give due deference to the court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. However, we give no deference to a circuit court’s conclusion of law. Id. Fowler first contends that the circuit court erred in finding her in contempt and responsible for child support after her visitation terminated in October 2010. Specifically, Fowler argues that the September 10, 2007 order “made child support contingent op visitation”, and that, although the April 5,. 2010 order “reinstated” visitation and child support, the order did not “specifically modify the [c]ircuit [c]ourt’s prior ruling that child support was contingent on visitation. Therefore, that provision of the 2007 Order — which made child support contingent on visitation — remained in full' force and effect.” We disagree. The September 10, 2007 order held Fowler’s visitation in abeyance and terminated any support as set forth in paragraph two of the stipulated property-settlement agreement dated February 23, 2006. Paragraph two of the agreement, as outlined above, addressed health insurance and certain other shared expenses, such as medical, prescription, and extracurricular expenses — not a specific monthly child support; Despite Fowler’s argument to the contrary, the April 5, 2010 order clearly modified the court’s previous order and established monthly, child support that was not contingent on Fowler’s visitation with the. children. As such, the circuit court did not err in finding her in «contempt and responsible for the child-support 17arrearage. • Fowler alternatively contends that the circuit court erred in not applying the doctrine of equitable estoppel. This court has previously affirmed the use of equitable defenses to prevent the enforcement of child-support orders, including an arrearage. State Office of Child Support Enft v. Burger, 80 Ark.App. 119, 92 S.W.3d 64 (2002). The elements of equitable estoppel are (1) the party to be es-topped must know the facts; (2) the party must intend that its conduct shall be acted on or must so act that the, party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other, party’s conduct to its detriment. Id. , Fowler specifically argues that she is entitled to rely on equitable estoppel because “(1) Mr. Hendrix failed to demand child support for four years and intended for Ms. Fowler to rely on his silence to her detriment; and (2) Mr. Hendrix has continually acted to defeat Ms. Fowler’s visitation rights and to alienate the affections of the children.” However, “the mere fact one delays pursuing rights to obtain a judgment on past due support does not prevent one from seeking a judgment.” Benn v. Benn, 57 Ark.App. 190, 192, 944 S.W.2d 555, 556 (1997); see also Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988). -Additionally, Fowler openly admitted that she voluntarily agreed to stop her visitation with her daughter without Hendrix’s involvement, •and she did not pursue any- further court intervention prior to the contempt proceedings despite the circuit court's explicit invitation to do so. Furthermore, Hendrix denied that his purpose throughout the litigation was to | ^frustrate Fowler’s visitation with her children or that he tried to convince the children to not visit their mother. He further denied that he waited to file the petition for contempt until after the Children had turned eighteen because he did not want Fowler to reestablish visitation or because he thought that the support obligation was contingent upon Fowler’s visitation. As’we noted previously, we defer to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Chitwood, supra. As such, w¿ cannot say that the circuit court erred in finding that Fowler failed to prove that Hendrix should be estopped from collecting the child-support arrearage. Affirmed.' Harrison and Kinard, JJ., agree. . We acknowledge that the parties disagreed as to this court’s standard of review. Fowler argued that this court should also review the circuit, court's contempt finding de novo on the record because this case also involved issues regarding child support. However, we note that, regardless of whether there is any merit to this argument, the result is the same under the particular facts of this case.

PER CURIAM I tin 2006, petitioner Jimmy Smith was found guilty by a jury of first-degree murder in the death of Corte Beavers. He was sentenced as a habitual offender to 720 months’ imprisonment. The Arkansas Court of Appeals affirmed. Smith v. State, CR-07-277, 2008 WL 316172 (Ark. App. Feb. 6, 2008) (unpublished) (original docket no. CACR 07-277). Smith subsequently filed in the trial court a pro se petition for postconviction relief under Ar kansas Rule of Criminal Procedure 37.1 (2006). Relief was denied, and Smith appealed from the order to this court. The appeal was dismissed. Smith v. State, 2010 Ark. 122, 2010 WL 1019718 (per curiam). Now before us is Smith’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61, A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Co-ram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been ■known to the trial court and which, through no negligence or fault of the defendant, was not brought forward -before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed Only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. As grounds for a writ of error coram nobis, Smith alleges that he was convicted of a crime that he did not commit as the result of the State’s withholding witnesses and evidence from the défense at trial. He further states that he did hot raise'his claims sooner because he was not appointed new counsel on direct appeal to raise “ineffective-assistance-at-trial claims” and because the trial court failed to inform him of his right to raise allegations of ineffective assistance of counsel on appeal. He contends that únder Martinez v. Ryan, — U.S.-, 132 act. 1309, 182 L.Ed.2d 272 (2012), this court can now consider his claims of ineffective assistance of counsel in a coram-nobis proceeding. UFirst, a trial court does not have the duty to inform the convicted defendant of collateral remedies available to him after . conviction. With respect to Smith’s invocation of Martinez his reliance is misplaced. The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules in bringing, his collateral attack on the judgment will no longer bar a federal court from granting habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. Martinez does not require this court to expand the scope of a coram-nobis proceeding to allow for issuance of a writ of error coram-nobis to permit a collateral challenge to- a judgment of conviction based -on claims of ineffective assistance of counsel. Williams v. State, 2015 Ark. 102, at 6, 460 S.W.3d 274, 278 (per curiam); Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Again, a coram-nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were extrinsic to the record that would have prevented rendition of the judgment at trial. Pitts v. State, 2014 Ark. 132, 2014 WL 1096185 (per curiam). A petitioner’s claim that he was not afforded an adequate opportunity to present claims of ineffective assistance of counsel is not within the scope of such a proceeding. We have declined to refashion the writ to afford such a remedy. See Zulpo v. State, 2014 Ark. 14, 2014 WL 197837 (per curiam) (holding that the scope of a coram-nobis proceeding would not be expanded to include an argument outside the four categories recognized as being within the purview of a coram-nobis proceeding). I ¿Smith argues that the writ should issue on the ground that the State' relied on the testimony of Brenda Gonzalez, who “arguably had motivation to fabricate her testimony.” He also asserts that the State’s case against him was weak because Gonzalez’s testimony regarding the victim’s dying declaration implicating him in the' murder of Corte Beavers was inconsistent and was based on what Gonzalez had learned by “playing detective” and questioning people in the neighborhood- about the crime. He also contends that the recording of the 911 call made it clear that Gonzalez had not actually gone over to the victim before making the call for help' and that she did not want to go there. It is clear that Smith’s allegations concerning Gonzales are intended as a challenge-to the credibility of Gonzalez and the overall sufficiency of the evidence to sustain the judgment. Neither challenge is cognizable in a coram-nobis proceeding. The sufficiency of the evidence and the credibility of witnesses are issues to be settled at trial, not in a coram-nobis proceeding. - McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 685, cert. denied, — U.S. ——, 135 S.Ct. 1432, 191 L.Ed.2d 391 (2015); see also Pinder v. State, 2015 Ark. 423, at 5, 474 S.W.3d 490 (per curiam). Smith further states that the State introduced into evidence a 9mm revolver found several blocks from the crime scene, but the bullet fragments recovered from the victim’s body did not match the bullets from that gun. He alleges that the trial court’s decision to withhold the results of a laboratory report on the bullet fragments and the State’s failure to test the fragments removed from the victim prejudiced the defense and constituted a violation of Brady v. Maryland, 373 U.S. 83, 83-S.Ct. 1194, 10 L.Ed.2d 215 (1963). A Brady violation is established when material evidence favorable to the defense .is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936,. 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense,, the petitioner -must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct.-1936; see Howard, 2012 Ark. 177, 403 S.W.3d 38. Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667, 105 S.Ct. 3375. To determine whether the proposed attack, on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction, in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth of those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662. Smith has not demonstrated that the State withheld any evidence or otherwise violated Brady. The application for an error coram nobis petition must make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts; a naked allegation that a constitutional right has been invaded will not suffice. Howard v. State, 2012 Ark. 177, at 19, 403 S.W.3d 38, 50. Smith was clearly aware of the evidence related to the gun at the time of trial, and he fails to point to any specific facts that he relies on to support his claim that the State withheld any evidence. I (¡Smith next. raises multiple claims of ineffective assistance, of counsel. Claims of ineffective assistance of counsel are not cognizable in a coram-nobis proceeding. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. An error-coram-nobis proceeding is not a substitute for raising ineffective-assistance-of-counsel claims under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark. 151, at 4-5, 460 S.W.3d 285,288. Finally, the- State urges that relief.be denied on the basis that Smith has failed to exercise due diligence in bringing a coram-nobis petition. We agree that Smith has not acted promptly in bringing his claims. Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). In the absence of a valid excuse for delay, the petition will be denied. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant; after discovering the fact, did not delay bringing the petition. Id.' The requirements are a sequence of events, each of which a petitioner must show to prove due diligence. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Here, Smith waited "more than seven years after the judgment of conviction was affirmed before filing this petition for coram-nobis relief. Even if Smith had presented grounds sufficient to support issuance of the writ, his failure to. act with due diligence, alone, would constitute good cause to deny the petition. Petition’dented.

PAUL E. DANIELSON, Associate Justice [ Appellant Cainis Redmond MacKin-trush appeals from the sentencing order of the Pulaski County Circuit Court reflect ing. his. convictions for possession of a Schedule III substance with the purpose to deliver, possession of a Schedule III subr stance, and possession of drug paraphernalia, and his. sentence to a total -term of imprisonment of 144 months. He asserts that the circuit court erred in (1) denying his motion to suppress when a canine sniff was conducted after his continued seizure without reasonable suspicion; and (2) overruling, his objection to the jury’s instruction, under AMI Crim.2d 64.420, because it constituted a comment on the evidence. Because we reverse the circuit court’s denial of MacKintrush’s motion to suppress, we reverse MacKintrush’s convictions and sentence and remand. MacKintrush does not challenge the sufficiency of the evidence against him; therefore, only a brief recitation of the facts is necessary.. See, e.g., McMiller v. State, 2014 Ark. 416, 444 S.W.3d 363. The relevant facts,- as developed during the hearing on MacKintrush’s suppression motion, are as follows. On March 19, 2014, MacKintrush picked up a package at the •post office from Mickey Schuetzle, an employee of the United States Postal Inspection Service. Schuetzle had -begun a drug-trafficking investigation of the pack age after it was brought to his attention by a postal-carrier supervisor because the package emitted a strong scent of dryer sheets. The package at issue had been addressed to Darius'Riggs at 2905 East Washington Avenue in North Little Rock and had a return address of Josh Johnson, 1565 South Sycamore, Los Angeles, California. ' Prior to having turned the package over to MacKintrush, Schuetzle had investigated the addresses on the package using the CLEAR software, which allows law enforcement to check names and addresses. His investigation revealed that the sender’s and recipient’s names did not match their respective addresses. At that time, Schuetzle notified Investigator Mike Brooks with the North Little Rock Police Department’s Narcotics Division of the investigation, and the two decided that Schuetzle would turn over the package with a traffic stop to follow. The plan was based on the fact that the package smelled of dryer sheets and the fact that a previous package “had been intercepted to the same location on Washington Avenue” from what appeared to be the same sending location. |,sWhen MacKintrush actually picked up the package,-he signed for it as Darius Riggs. After he had done so, MacKin-trush left, and Schuetzle joined Investigator Brooks in his vehicle in an attempt to observe MacKintrush leaving the post office. At that time, - Schuetzle gave Brooks the name of Darius Riggs; however, when Brooks ran the license plate of the vehicle that MacKintrush had entered, it returned to, a Oainis MacKintrush, at 2114 Howard Street,- in Little Rock.' MacKintrush Was eventually-pulled ovér for Tailing to use. a turn signal. • After making contact with' the driver, Officer Bruce Moyster obtained the driver’s license of the driver and sole occupant, MacKintrush. He further sought MacKin-trush’s consent to search the vehicle, but MacKintrufeh refused. Brooks then contacted Chief Peter Powell of the Caramack Village Police Department seeking his assistance and that of his drug dog. Officer Moyster testified that after MacKintrush realized that a canine unit had been dispatched, he became more nervous and began to sweat. The State and MacKintrush stipulated that thirty-four minutes had elapsed between the time that MacKintrush was stopped and the arrival of the canine unit on the scene. During the sniff that was conducted, there was an alert for the presence of narcotics. A search occurred, and an open, brown parcel-style box was found, with two large bags of marijuana outside of it. In addition, a black backpack containing paraphernalia was, found, along with some- more marijuana; a bottle of hydrocodone pills was found in the vehicle’s center console. MacKintrush was subsequently arrested, tried, and convicted, as already set forth. He now appeals. |4For his first point on appeal, MacKin-trush argues that the circuit court erred in denying his motion to suppress the evidence against him. He contends that his suppression motion should have been granted because the canine sniff that was conducted on his vehicle was done without reasonable suspicion in violation of the Fourth Amendment; Arkansas Constitution art. 2, section 15; and Arkansas Rule of Criminal Procedure 3.1. MacKintrush submits that all' routine tasks associated with his initial traffic stop had been com pleted before the canine .unit was called, and his prolonged detention for an additional period of time was therefore required to be supported by reasonable suspicion. He avers that the factors had by police — i.e., that the package smelled like dryer sheets, that the names and addresses on the package did not match, and that he signed for the package as Darius Riggs — were a combination of wholly innocent factors not giving rise to reasonable suspicion. The State responds, asserting that officers reasonably detained MacKintrush beyond the time necessary for-the initial purpose of the stop. It contends that there was reasonable suspicion to believe that MacKintrush was involved in criminal activity and that MacKintrush’s detention was therefore justified. In addition, the State asserts that the length of MacKin-trush’s detention did not violate the rules of criminal procedure because the delay in the canine unit’s arrival was not unreasonable. In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. ■ See Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197. A finding is clearly erroneous, even if there is evidence to support it, when, the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. See id. We defer to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a suppression hearing. See id. At-issue here is MacKin-trush’s continued detention and whether reasonable suspicion existed to warrant that detention. We hold that, reasonable suspicion, as that term has been defined by this court, was lacking. • Pursuant to Ark. R.Crim. P. 3.1, [a] law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary , either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under- this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. Ark. R.Crim. P. 3.1 (2015). The rule is precise in stating that the reasonable suspicion must be tied to commission of a felony or a misdemeanor involving forcible injury to persons or property. See Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). As defined by our criminal rules, “reasonable suspicion” is Ra suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is,, a.suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Ark. R.Crim. P. 2.1 (2015). Whether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person may be involved in criminal activity. See Dowby v. State, 363 Ark. 1, 210 S.W.3d 850 (2005). Factors to be considered when determining whether an officer has grounds to “reasonably suspect” a person include, but are not limited to, the following: (1) The demeanor of the suspect; (2) The gait and manner of the suspect; (3) Any knowledge the officer may have of the suspect’s background or character; (4) Whether the suspect is carrying anything, and what he or she is carrying; (5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors; (6) The time of the day or night the suspect is observed; (7) Any overheard conversation of the suspect; (8) The particular streets and areas involved; (9) Any information received from third persons, whether they are known or unknown; (10) Whether the suspect is consorting with others whose conduct is reasonably suspect; (11) The suspect’s proximity to known ■ criminal conduct; (12) The incidence of crime in the immediate neighborhood; ' (13) The suspect’s apparent effort to conceal an article; and (14) The apparent effort of the suspect to avoid identification or eonfrontation by a law enforcement officer. Ark.Code Ann. § 16-81-203 (Repl.2005); see also State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008). This court has held that reasonable suspicion to further detain must be developed |7before the legitimate purpose' of the traffic stop has'ended. See Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005). We turn then to the information possessed by law-enforcement officers at the time the canine unit was called to assist in the investigation. According'to the State, the following facts support a finding of reasonable suspicion: (1) the package contained a strong odor of dryer sheets; (2) the package contained a return address in California and was' addressed to Darius Riggs at a North Little Rock address; (3) a package with the same return street address had previously been intercepted by the post office; (4) neither of the names listed on the package was associated with the respective addresses; and (5) MacKintrush did not sign for the package using his own name. These facts, howev er, simply do not give rise to a finding of reasonable suspicion. This court has recognized that while the scent of a masking agent along with other factors may constitute reasonable suspicion, the scent, standing alone, is insufficient to do so. See Lilley v. State, 362 Ark. 436, 208 S.W.3d 785 (2005). While other-facts claimed by the State may exist, they do not, in our opinion, give rise to anything more than bare suspicion. J^With respect to the names on the packaging'not corresponding to the addresses, Investigator Schuetzle himself, admitted that the CLEAR database was not infallible and discounted its accuracy, in that people could “rent property,” “[n]ot update their driver’s license,” or temporarily live with someone else. Nor does the fact that a prior package may have been intercepted have much credence, when the record is completely vague as to the.details of the interception, and Detective Brooks admitted that nothing tied that package to MacKintrush: ; Defense Counsel: Okay. Well, we heard about some addresses from Schuetzle. What other indicators? Detective Biíooks: There had been a previous label that had been intercepted to the same location on Washington Avenue from I think what appeared to be the same location, and I looked at this label from. [sic ]' Schuetzle showed this to ’ me. But 'that it was from Los Angeles, California, same street, different numbers, but different zip code as'well. That’s an indicator.~ Defense Counsel: Okay. But that— There’s nothing that ties Mr. MacKin-trush to that label, is there? Detective BROOKS: No, not that specific one. Finally, we cannot say that there is anything inherently suspicious about MacKin-trush signing for the-package in question using the name of Darius Riggs, the- person to whom the package was addressed. It is certainly reasonable to believe that one-might sign in the name of the named recipient for only innocent reasons. For all law enforcement knew at the time the canine unit was called, MacKintrush may have merely picked the package up for someone else, IflThe facts and circumstances in the instant case simply do not give rise'to more than a bare suspicion. As we have previously observed, “it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.” Lilley, 362 Ark. at 444, 208 S.W.3d at 791 (quoting United States v. Beck, 140 F.3d 1129, 1137 (8th Cir.1998)). Those concrete reasons are not present here. . Under the totality -of the circumstances; specific, particularized, and articulable reasons indicating that MacKintrush was involved in criminal activity were lacking. Accordingly, we reverse the circuit court’s denial of MacKin-trush’s motion ■ to ■ suppress, reverse MacKintrush’s convictions -and sentence, and remand. ■ . Reversed and remanded. Brill, :C.J., and Wood and Wynne, JJ., dissent.. . MacKintrush had attempted to pick up the package “a couple of times” prior to the actual pick up. . . . . ■ . The inspector testified that dryer sheets are sometimes used as a masking agent to control or cover up the odor of illegal narcotics. . MacKintrush does not challenge the validity of the initial traffic stop, nor does he or the State appear to dispute that he was detained beyond the time nécessaiy for the initial purpose of the stop. . While the State also mentions the fact that MacKintrush appeared to be nervous when he learned a canine unit was on its way, we have held that mere nervousness, standing alone, cannot constitute reasonable suspicion of criminal activity and grounds for detention. See Laime, 347 Ark. 142, 60 S.W.3d 464. Moreover, the reasonable suspicion to further detain MacKintrush must have been developed prior to palling the canine unit. See Sims v. State, 356 Ark, 507, 157 S.W.3d 530 (2004) (recognizing that the reasonable suspicion necessary to justify further detention is to be formed before the purpose of the initial traffic stop is completed). To that end, any appearance of1 nervousness after that time is not relevant to our determination of whether there existed reasonable suspicion. . Because we reverse and remand on this issue, we need not address MacKintrush's second point on appeal.

PER CURIAM liln 2010, petitioner Leon Rice, Jr., was found guilty by a jury in the Pulaski County Circuit Court of possession of a controlled substance .(cocaine) and resisting arrest. He was sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment. The Arkansas Court of Appeals affirmed. Rice v. State, CR-11-227 (Ark. App. Nov. 2, 2011) (unpublished) (original docket no. CACR 11-227). In 2012, Rice timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010), asserting various allegations of ineffective assistance of counsel, prosecutorial misconduct, and due-process violations. The petition was denied, and this court affirmed the order. Rice v. State, 2014 Ark. 230, 2014 WL 2019300 (per curiam). Now before us is Rice’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram |anobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coramnobis proceedings are attended by a strong presumption that the judgment of conviction is valid; • Wester-man v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.' The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through Ho negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material.evidence withheld by the prosecutor, or ‘(4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. As grounds for a writ of error co-ram nobis, Rice alleges that the State withheld evidence from the .defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence alleged. to .have been withheld was a videotape of his arrest. He contends that the videotape would have shown that the police officers lied about the circumstances of his | aarrest for possession, of cocaine and resisting arrest and would support his claim of actual innocence. A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by 'the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662, Taylor v. State, 462 S.W.3d 662 (Ark.2015). In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth to those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662. 303 Ark. 586, 799 S.W.2d 519 (1990). Here, there was clearly no Brady violation because the trial transcript lodged on direct appeal from the judgment reflects that the videotape of the arrest was discussed in a pretrial hearing, and it was played for the jury at trial. The tape was the subject of the questioning of witnesses by both the prosecution and the defense. Rice’s attorney argued at trial that the tape was incomplete in that it only captured the beginning of the arrest and that the arresting officers and Rice could not be seen at all points when Rice was alleged by the police officers to be resisting arrest. Even if the tape did not record the entire arrest, however, Rice has not shown that the tape, or any portion of it, was wrongfully withheld | ¿from the defense. Rice has not established there was some material evidence withheld that would have prevented rendition of the judgment had it been known at the time of trial. See Isom, 2015 Ark. 225, 462 S.W.3d 662. With respect to Rice’s assertions that police officers were untruthful in their account of the arrest, direct attacks on the evidence adduced at trial are properly made at trial. See Riley v. State, 2015 Ark. 282, at 3, 2015 WL 2452524 (per curiam). The presentation of evidence that attacks the credibility of a witness at trial constitutes a direct attack on the judgment. Id.; see Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987). To the extent that Rice’s allegations concerning the allegedly false testimony could be considered a claim that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-nobis proceedings. Mc-Arthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d- 681, 685, cert, denied, — U.S. -, 135 S.Ct. 1432, 191 L.Ed.2d 391 (2015). Finally, the State urges this court to deny coram-nobis relief on the grounds that Rice failed to exercise due diligence in bringing his claims because he waited four years from the time the judgment was affirmed to raise his claims. We need not address whether Rice was diligent because he has stated no ground for the writ. See Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. Petition denied.

ROBERT J. GLADWIN, Chief Judge | iPursuant to Arkansas Rule of Criminal Procedure 24.3 (2014), appellant William Daniel Meeks entered a conditional plea of guilty in the Washington County Circuit Court to the charge of DWI-First Offense. On appeal, Meeks argues that Fayetteville Police Officer Kristin Mercado seized him by conducting a traffic stop without reasonable. suspicion as required by Arkansas Rule of Criminal Procedure'3.1 (2014) and that the stop was not authorized by Officer Mercado’s community-caretaking function or any emergency-aid exception. We agree; accordingly, we reverse and remand. I. Facts The facts of this case are undisputed. On March 16, 2014, at approximately 1:00 a.m.,' Officer Mercado observed a black Chevy Tahoe parked in the Marvin’s IGA parking'lot approximately fifty feet off of the nearest public road. Marvin’s IGA was closed. The Tahoe was parked and not moving, and there were no other vehicles in close proximity, 12As she was driving past the parking lot, Officer Mercado observed that the passenger-side door was open and that a passenger was leaning out of the vehicle vomiting. She observed the passenger vomiting for ten-to-fifteen seconds. Officer Mercado turned right into the parking lot, stopped behind the Tahoe, and placed her spotlight on the vehicle, but she did not activate her blue lights at this time. She was not responding to any call .concerning this vehicle, Marvin’s IGÁ, or the parking lot. Prior to Officer Mercado getting out of her vehicle, but after she pulled in behind the Tahoe, the passenger finished vomiting, sat back up in the vehicle, and closed the passenger door. After the passenger shut the passenger door, Meeks — who was driving the Tahoe — started to drive toward an exit from the parking lot, Prior to Meeks’s attempt to drive away, Officer Mercado did not do anything to indicate to Meeks that he needed to remain, that he should not leave, or that he needed to stop and talk to Officer Mercado: As Meeks was starting to exit the -parking lot, he did not spin or squeal his tires, and he' did not drive in an erratic, careless, or reckless manner. Just as Meeks began to drive away, but while still in the parking lot, Officer Mercado activated her blue lights and notified dispatch that she was conducting a traffic stop. Before she activated her blue lights, Officer Mercado did not see Meeks commit any traffic violations or criminál acts, and Meeks immediately pulled into a parking place very close to wheré he had originally stopped the vehicle. Officer Mercado ultimately arrested Meeks and charged him with DWI-First Offense. Meeks filed a motion to suppress illegally obtained evidence on Décember 23, 2014. The motion asserted that Officer Mercado illegally stopped, detained, seized, and searched |aMeeks without a warrant in violation of the Fourth Amendment to United States Constitution, article 2, section 15 of the Arkansas Constitution, and the Arkansas Rules of Criminal Procedure. The. circuit court conducted a hearing on the motion on February 13, 2015, and subsequently denied the motion. After the denial of the motion, Meeks entered a conditional plea on the charge of DWI — First Offense. The circuit court sentenced Meeks to a fíne of $600; $300 in court costs; $20 in booking/administrative fees; and ninety days in the county jail, with eighty-eight of those days suspended, and credit given for one day already served pursuant to a February 19, 2015 sentencing order. Meeks filed his timely notice of appeal on March 20,2015. II. Standard of Review Meeks raises two points in this appeal, both of which relate to the circuit court’s decision to deny his motion to suppress. The standard of review is the same for both points. In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable' suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s' findings. E.g., Johnson v. State, 2015 Ark. 387, 472 S.W.3d 486. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm' conviction that a mistake has been made. Id. We defer to the superiority of the circuit court to evaluate the credibility of ^witnesses who testify at a suppression hearing. : Id. We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id. . III. Illegal Seizure by Conducting a Traffic Stop Without Reasonable Suspicion as Required By Arkansas Rule ■ of Criminal Procedure 3.1 Meeks asserts that he was pulled over by Officer Mercado while obeying the law, committing no traffic or criminal violations, and doing nothing more than he had the legal right to do. In Arkansas, all police-citizen encounters are classified into one of three categories: (1) a consensual, voluntary encounter; (2) a seizure; or (3) an arrest. See Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197, All police-citizen encounters are transformed into a seizure when a reasonable person would believe that he is not free to leave. See id. It is well settled in Arkansas that a person is “seized” by a police officer when the police officer effectuates a traffic.stop by using blue lights. Hammons v. State, 327 Ark. 520, 940 S.W.2d, 424 (1997); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997); Stevens v. State, 91 Ark.App. 114, 208 S.W.3d 843 (2005). . Meeks asserts, and the State acknowledged at the oral argument on this appeal, that he was seized by Officer Mercado within the meaning of the Fourth Amendment to the United States Constitution and article 2, section 15, of the Arkansas Constitution at the time she activated her blue lights to conduct a traffic stop on the vehicle driven by Meeks. These constitutional protections extend to even brief investigatory stops of persons' or vehicles. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Both the federal and state constitutional provisions are nearly identical and prohibit unreasonable searches and seizures not supported by probable cause or reasonable suspicion. See U.S. RConst., amend. IV; Ark. Const., art. II, § 15. The remaining question is whether Officer Mercado had probable cause to do so. We hold that she did not. In Arkansas, a law enforcement officer lawfully present in any place may seize any person or vehicle if the officer has, under the totality of the circumstances, specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. See Cock-rell, supra. Essentially, a seizure must be based on a reasonable suspicion that the person has committed or is about to commit a crime. Rule 3.1 of the Arkansas Rules of Criminal Procedure authorizes a police officer to stop and detain any person who he or she reasonably suspects is committing, has committed, or is about to commit (1) a felony or (2) a misdemeanor involving danger of forcible injury to persons or property. Our supreme court -has defined “reasonable suspicion” as suspicion that is based on facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. See Hammons, supra. Further, a police officer is justified in making a traffic stop if he or she has probable cause to believe that the vehicle has violated a traffic law. See Whren v. United States,, 517 U.S. 806, 116 S.Ct. 1769, 135 L,Ed.2d 89 (1996); Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Mosley v. State, 2009 Ark. App. 799, 370 S.W.3d 273. Accordingly, before Officer Mercado could stop Meeks using her blue lights, she needed to have reasonable suspicion that he had committed a crime, .or probable cause to believe that he had committed a traffic violation. Meeks notes that based upon Officer Mercado’s own testimony, she had neither. ■ | ^Officer Mercado specifically testified that she did not see Meeks commit any traffic violations or any criminal act before she activated her blue lights. The following colloquy occurred during the cross-examination of Officer Mercado: MR. Nelson: - Before you turned the blue lights on did you see Mr. Meeks commit any traffic violations? OffigeR MERCADO: No, sir. MR, Nelson: Did you see him commit any criminal acts? OfficeR Mercado: No, sir. Officer Mercado testified honestly and truthfully that she did not see Meeks commit any traffic violations or criminal acts. She testified that she was not “making a traffic stop” at this time because she had not “observe[d] any infractions.” She explained that she “was just pulling in to check on the vehicle and the occupants.” Based on that testimony, combined with our de novo review of the dash-cam video of the stop, we hold that the circuit court’s denial of Meeks’s motion to suppress was clearly erroneous. Officer Mercado did not observe anything that would lead a reasonable person to suspect that either Meeks or his passenger was committing any crime. The only information known about Meeks’s passenger was that he was leaning out of a vehicle and vomiting. This act gives rise to a suspicion only that the passenger was sick,, the cause of which is irrelevant because, whether due to a stomach virus, a gastrointestinal condition, eating too much, drinking alcohol, or any combination of these things, none of these things is illegal in Arkansas. At this point, there existed no fact that could give rise to reasonable suspicion or probable cause of any crime, or traffic violation in the mind of an objectively reasonable officer knowing what Officer Mercado knew at the time. 17Officer Mercado, testified that the only thing that changed between the time she first pulled in and the time it took her to activate her blue lights was Meeks starting to drive away. Based on our viewing of the dash-cam video, the other thing that changed was that the passenger stopped throwing up, sat back up, and closed the vehicle door. Meeks’s vehicle was .not parked in a manner taking up several parking spots but was, instead, stopped in the driving lane of the parking lot. It was clear that the brake lights were on, and the vehicle was sitting stationary while the passenger was leaning out of his open door vomiting. It appeared that the passenger door was open for only a few seconds. Though difficult to see, it appeared that Officer Mercado’s spotlight was turned on and was pointed in the direction of Meeks’s vehicle while the passenger was still vomiting, that a few seconds went by, the passenger door closed, and the vehicle started to leave. A review of the dash-cam video confirms that Meeks did not flee from or evade Officer Mercado. He simply left after it was safe to do so, after his passenger was back inside the vehicle with the door shut. Under these specific circumstances, we reverse the circuit court’s conclusion that Meeks’s act of leaving amounted to an attempted flight or an evasive procedure that somehow gave Officer Mercado reasonable suspicion to then activate her blue lights and conduct a traffic stop on Meeks’s vehicle. IV. Illegal Seizure by Conducting a Traffic Stop Not Authorized by the Community-Caretaking, Function _ or Emergency-Aid Exception Because Officer Mercado’s stop of Meeks was not supported by Rule 3,1, we next analyze whether the stop of Meeks was authorized by Officer Mercado’s community-caretaking function or an emergency-aid exception. Under these particular circumstances, we hold that these theories also do not support Officer Mercado’s stop. I RIn Cady v, Dombrowski, the United States Supreme Court held that a search of the trunk of a disabled vehicle without a Wjarrant did not violate the Fourth and Fourte'enth Amendments,' explaining that ■local police officers frequently ‘‘engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from‘the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). ’ Courts 'from the Eighth Circuit and the State of Arkansas have acknowledged that certain situations give rise to an officer’s community-care-taking-functions. For example, as part of the community-caretaking function, an officer is authorized to respond to the scene of an accident and make contact with those present when a vehicle is partly in the roadway. See United States v. Smith, 162 F.3d 1226 (8th Cir.1998). In addition, an officer is authorized to respond to the report, of a stolen- vehicle found abandoned and constituting a hazard on a public highway and to perform an inventory search pursuant to department policy. See Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979). An officer is even -authorized pursuant to the community-care-taking function to have a vehicle towed and to perform an inventory search pursuant to department policy after arresting a driver on outstanding warrants. See Col-yer v. State, 9 Ark.App. 1, 652 S.W.2d 645 (1983), . This court.recognized the existence of an officer’s “community caretaking function” in Blakemore v. State, 25. Ark.App. 335, 758 S.W.2d 425 (1988). In Blakemore, a deputy approached a vehicle with its motor running and lights on. The ¡ deputy observed that the driver was “either asleep ■ or passed out”' in the front seat. Blakemore, 25 Ark.App. at 336-37, 753 S.W.2d at , 426. After the. deputy repeatedly knocked on the window, the driver |gwoke ,up, and ;the deputy smelled alcohol and observed appellant stumble when he got ■out of his vehicle. Id. This court held that “[although he did not see any blood or physical injuries. Deputy Rushing did not know if the appellant was ill. drunk, or merely asleep. Given these circumstances we believe that Deputy Rushing, as part of his community caretaking function,, was justified in knocking on the appellant’s window to question him and make an inquiry.”. Id. at 340, 758 S.W,2d at 428 — 29. More recently, in Szabo v. State, 2015 Ark. App. 512, 470 S.W.3d 696, this court permitted an officer to detain a driver for further investigation pursuant to the community-caretaking function. As in Blake-more, supra, an officer approached a vehicle and observed the driver in the front seat, unconscious, with the motor running. After the driver failed to respond to the officer knocking on- his window, the officer continued his commünity-earetaking function by opening the unlocked door. In 2001. the Eighth Circuit also addressed an officer’s community-caretakirig functions. See Winters v. Adams, 254 F.3d 758 (8th Cir.2001). In Winters, the police officers responded to a report of an intoxicated person exiting and reentering a vehicle on a dead-end street. See id. When the police officers arrived on scéne, they made consensual contact with an individual sitting in the driver’s seat of the only vehicle on the dead-end street. See id. After some discussion between an officer-and the driver, the driver raised the car window, locked the door, and stated that he wished to be left alone. See id. Officers then observed the occupant of the vehicle begin to sweat, to behave strangely and extremely hyper, to move wildly about the car to become highly agitated, and to yell at the police officers to leave • him alone. See id. The officers testified that they began to suspect that the suspect was 1 ^under the influence of an illegal drug and was possibly overdosing. See id. The officers therefore decided to make entry into the vehicle. See id. The Eighth Circuit found that the police contact was justified because there had been enough observations by the police officers to suspect that the suspect was intoxicated on some substance and was a’danger to himself and others. ■ See id. ■ ' There are factors distinguishing Winters, Szabo, and Btakemore from the present case.' First', Officer Mercado was not responding to any type of report, let alone an intoxicated person or a vehicle with a visibly impaired driver. Second, Meeks never said or did anything to give Officer Mercado the impression that Meeks needed her help. The correct standard, and what Officer Mercado must show to justify her actions based on an alleged medical emergency, is that she had an objective basis -for believing that someone -in the vehicle was in immediate need of medical assistance or was in imminent - danger. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. A case from the Texas Court of Appeals, Andrews v. State, 79 S.W.3d 649 (Tex.Ct. App.2002), is instructive. In Andrews, a police officer saw a vehicle pull to the paved shoulder of Interstate 45 at 1:00 a.m., and he saw a female lean out of a passenger door and begin vomiting. Id. The officer pulled up behind the vehicle, at which timé the passenger shut her door and the vehicle began to pull away. See id.’ The officer then activated his blue lights and stopped the vehicle. See id. In deciding whether the stop was justified by the officer’s community-caretaking func tion, the court analyzed four factors: (1) the nature and level of distress exhibited by the individual; (2) the location,of the individual; (3) whether or not the individual was alone and/or had access to assistance independent of the officer; |1Tand (4) to what extent the individual — if not assisted — presented a danger to himself or others. See id. After pointing out that there was another individual on scene, the driver, who was able to assist the individual vomiting and that nothing indicated that the passenger’s condition was any more serious than an upset stomach, the Andrews court held that this stop was not justified -by a community-.caretaking function. Id. The present case is factually similar to Andrews. The vomiting passenger likewise showed no signs of having anything more serious than an upset stomach. Nothing indicated that Meeks could not provide whatever assistance the passenger needed, and neither Meeks nor the passenger indicated a need or desire for assistance from Officer' Mercado. See also Wright v. State, 18 S.W.3d 245, 246 (Tex.Ct.App.2000). The officers in Wright stopped a vehicle out of concern for the welfare of the passenger after observing him leaning out' of the rear window and vomiting at 4:00 a.m. See id. The court held that the traffic stop was an illegal seizure, noting that (1) the vomiting person was a passenger in a car that was being driven in a lawful manner; (2) the passenger appeared to be having some gastric distress, but that the driver appeared to be able to aid the passenger; (3) no one in the vehicle indicated that they needed, help from the officer; arid (4) nothing indicated that the officer’s assistance was necessary or would add to the comfort or welfare of the passenger. See id. We contrast these facts with those in the recent Nebraska Court of Appeals case that examined this issue and reached the opposite conclusion. In State v. Rohde, 22 Neb.App. 926, 864 N.W.2d 704 (2015),-the court' examined at length opinions from courts across the country that both favor and oppose the ability of an officer to offer assistance in cases involving a passenger, rather than the driver. Id. The court concluded ; that the commuhity-hscaretaking function applies equally to drivers and passengers, and, based on factors such as those listed in Andrews, it held that it. was reasonable for the officer in that case to stop a car where the officer observed á female passenger’s upper body was sticking out through the moon roof of a moving vehicle waving her arms in order to deteririine if she may have been trying to wave hirri down for assistance. For this reason, the officer activated his blue lights and stopped the vehicle. See id. The Nebraska Court of Appeals uphéld the stop based on the officer’s community-caretakirig function because the officer could have reasonably concluded that the passenger was “attempting to flag him down to obtain his assistance.” See id. In this case, Meeks and his passenger did just the opposite of the passenger in Roh-de. Meeks and his passenger did nothing to indicate that they wanted or needed Officer Mercado’s assistance. Although the police have the right to respond to emergency situations, the Fourth Amendment bars police officers from engaging in a warrantless seizure based on an alleged medical condition unless the police officer can show that it was objectively > reasonable to believe that a person was in need of immediate aid or was in imminent danger. See Mincey, supra; Miller, supra. There must be an objectively reasonable basis for believing that medical assistance was needed or persons were in danger. Miller, supra. In this .case, there are no facts to indicate that Meeks or his passenger was in imminent danger or that anyone in the vehicle was in need of immediate aid. When viewed objectively, it is clear that it was unreasonable for Officer Mercado to think that Meeks or his passenger was in imminent need or danger of any of these things. Therefore, there was no emergency that authorized Officer Mercado’s stop of Meeks under the facts of this case. 113We hold that the circuit court erred by denying Meeks’s motion to suppress because Officer Mercado acted unreasonably and illegally seized Meeks in violation of the Fourth Amendment to the United States Constitution and article 2, section 15, of the Arkansas Constitution. When viewed objectively, there are no facts that could lead a reasonable, person to think that either Meeks or his passenger was in immediate need of medical assistance or was in imminent danger. The circuit court should have granted the motion, and all evidence obtained after this illegal seizure should have been suppressed. Accoi-dingly, we reverse and remand to the circuit court for further proceedings consistent with this opinion. Reversed and remanded. Glover and Vaught, JJ., agree.

M. MICHAEL KINARD, Judge |!Freddie L. Sharp III was tried by a jury and convicted of-rape, for which he was sentenced to twenty-five years in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in denying his motion for a directed verdict of acquittal; in refusing to allow introduction of evidence that another person had made sexual advances on the. victim; in denying him allegedly exculpatory materials held by the State; in denying him access to the victim’s file at the Arkansas State Crime Laboratory; in not allowing him to review reports of child abuse involving the victim, and investigatory records associated with those reports, held by the Arkansas Department of Human Services; and in denying his motions for a continuance. We affirm. In the early evening hours of August 27, 2013, it was discovered that eleven-year-old J.W. was missing. After an extensive search in her rural Mississippi County community, |2J.W.’s body was found the next morning, face-down in a ditch filled with eighteen inches of water. It was later determined that the victim had been strangled to the point of helplessness, with the ultimate cause of death being drowning. A local teenager, Chris Sowell, was arrested and charged in circuit court with J.W.’s murder.' Investigation at the State Grime Lab, however, disclosed sperm and other seminal fluid on and in the victim, but none of it could be linked to Sowell; in fact, he was excluded as a source of the material. Police obtained DNA samples from several other men in the community, including appellant, who was a neighbor of J.W., and sent those samples to the crime lab for comparison. All but appellant were excluded as the source. The sperm cell found on the victim’s outer labia matched appellant’s personal DNA profile, and another component part of semen found inside the victim’s mouth and vaginal, canal (a protein known as P30) matched the genetic markers shared, by appellant and the male relatives in his paternal lineage. Appellant was arrested for J.W.’s rape, charged.in a different division of circuit court from Sowell, and ultimately convicted of the crime. I. Sufficiency of the Evidence Appellant first contends that the trial court erred in denying his motion for a directed verdict. Specifically, he argues that the State presented insufficient evidence to establish either the penetration element of rape or that appellant had the opportunity to have committed the offense. We disagree. As is pertinent here, a person commits the offense of rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of Rage. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. .2013). “Sexual- intercourse” means penetration, however.slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11) (Repl. 2013). “Deviate sexual activity” means, in part, any act of sexual gratification involving the penetration of the anus or mouth of a person by the penis of another person. Ark. Code Ann. § 5-14-101(l)(A). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. When sufficiency is challenged on appeal from a criminal conviction, we-consider only that proof that tends to support the conviction, and we view that proof and all reasonable inferences deducible therefrom in the light most favorable to the State. ’ Id. We will affirm if the finding of guilt is supported by substantial evidence. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without requiring resort to speculation or conjecture. • Id. ■ The weight of the evidence and the credibility of the witnesses are- matters for the jury, not this court. Means v. State, 2015 Ark. App. 643, 2015 WL 7009341. Circumstantial evidence may ' constitute Substantial evidence. Smith v. State, 2010 Ark. App. 135, 374 S.W.3d 124. To be substantial, circumstantial evidence must exclude every reasonable hypothesis other than the accused’s guilt. Id. However, the question of whether the circumstantial evidence excludes every reasonable hypothesis consistent with innocence is for the jury to decide. Id. On review, the appellate court determines whether the jury had to resort to speculation and conjecture to reach its verdict. Fernandez, supra. uAppellant’s argument that insufficient evidence of penetration was presented is without merit. “[Pjenetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that-is sufficient.” Fernandez, .2010 Ark. 148, at 8, 862 S.W.3d at 909 (citing Young v. State, 374 Ark. 350, 288 S.W.3d 221 (2008)). In Fernandez, the supreme court held that the presence of P30 inside the anus of the victim constituted substantial evidence that penetration by a penis had occurred. Here, we have evidence of P30, a component of semen, inside the victim’s mouth and vaginal canal. As in Fernandez, the P30 was matched to either appellant or some male who shared appellant’s paternal lineage. Moreover, there is also in this case proof that a sperm cell was found on the victim’s outer labia, further suggesting recent sexual contact, and that sperm matched, appellant’s personal DNA profile “within all scientific certainty.” Appellant theorized that the P30 may have come from his urine and traveled intp. the victim’s mouth and vaginal canal when,, on the day in question, appellant urinated into the ditch where the body was later found. Even appellant’s, own expert witness, however, opined that.such would not be possible. , We conclude that thq jury’s finding of penetration is supported by. substantial evidence. Appellant also argues that there is no substantial evidence that-he had the opporfiinity to commit the rape.' His argument is based on a time line that he insists demonstrates that his whereabouts were accounted for during the time that 'the crime could have occurred. However, appellant’s version of his whereabouts between 4:30 p.nf and sometime after 9:00 |5p.m. on the day in' question depends on the testimony of appellant, his wife, and his nine-year-old daughter. Of course, the jury did not- have to- believe the testimony of any witness, much less that of-appellant and his- immediate- family. See Fernandez, supra. ■ Moreover, there was evidence that directly contradicted certain aspects of the testimony given by appellant and his family members regarding appellant’s asserted time line — for example, the victim’s father testified that he spoke to appellant around 6:30 p.m. and that appellant was alone in his Jeep; appellant, on the other hand, claimed that he was with his three children at that time. Appellant’s assertion of his lack of opportunity to,-commit the crime was clearly a matter of credibility for the jury to determine. We find no error in the denial of the motion for a directed verdict. II. Hearsay, Appellant' next contends that the trial court erred in refusing to admit the testimony of a neighbor that-the victim had confided to the neighbor that, a few months earlier, Chris Sowell had made the victim uncomfortable on the school bus by touching her in an arguably sexual manner. The State objected because the proffered evidence contained hearsay. Appellant argues that the evidence was admissible under either of two hearsay exceptions found in Arkansas Rule of Evidence 804: ' ■ (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Other Exceptions. A statement not specifically covered'by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the |fistatement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admis sion of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. (7) Child hearsay in criminal cases. ’ A statement made by a child under the age of ten (10) years concerning any type of sexual offense against that child, where the 'Confrontation Clause of the Sixth Amendment of the United States is applicable, provided: (A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trustworthiness that the truthfulness of'the child’s statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. Appellant’s argument regarding Rule 804(b)(7) is clearly unavailing. First, we cannot determine that appellant argued this exception to the trial court, and he cannot raise the issue for the first time on appeal. See Lacy y. State, 2010 Ark. 888, at ¶¶ 17-18, 377 S.W.3d 227, 238. In any event, by its own terms, that hearsay exception is limited to out-of-court statements made by a child under the age of ten years. Here, the victim was eleven years old at the time of her. death, and the proffered witness testified that the victim made the statement to him within approximately four months of her death. She could not have been “under the age of ten” at the time of her alleged statement. Nor do we find reversible error in the trial court’s decision under Rule 804(b)(5). A trial court’s decision on the admission of evidence will not be reversed in the absence of an |7abuse of discretion. Boss v. State, 2015 Ark. App. 613, 2015 -WL 6522493. Among other things, Rule 804(b)(5) conditions admission of hearsay on its having guarantees of trustworthiness equivalent to those of established exceptions and on the trial court’s determination that the statement is offered as evidence of a material fact. Here, according to the proffer, the child stated that Sowell had put his finger in a hole in her jeans on her upper leg and that “it creeped [her] out.” .She was not upset when she made the statement to the witness, and she gave no further details. The witness took no action, such as informing the child’s parents or school or law enforcement authorities. The trial court thoughtfully considered the proffer and concluded that, the statement did not carry substantial guarantees of trustworthiness. Moreover, there would appear to be little, if any, probative value to the evidence. The trial .court could have com eluded, that whether Sowell may have made sexual adyances on the child was not significantly material to the question of whether the child was raped on the day in question and, if so, whether it was appellant who raped her. This is particularly so here, where the only proof of rape consisted of, seminal fluid and sperm found in and on the victim’s body and where, even according to appellant’s own expert witness, DNA testing completely excluded. Sowell as the source. Finally, we.note that, earlier in the.trial, a police officer testified that the police had information that Sowell had made “sexual advances” on the victim on the school bus and that his behavior had made her uncomfortable. The proffered testimony would have added little, if anything, to the officer’s testimony. We cannot say that the trial court abused its considerable discretion in refusing to admit the neighbor’s proffered testimony or, in any event, that appellant suffered |sany real prejudice as a result of its exclusion in light of the admission of the police officer’s similar testimony. Ill, Denial of Brady Materials Appellant next contends that he was denied discovery of exculpatory material by the State in violation of the due-process principle announced' in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969). Specifically, appellant sought access to copies of all of the materials in the files related to the murder case that was pending against Sowell. As stated, the murder case against Sowell and the rape charge against appellant were proceeding in separate divisions of circuit court and were assigned to different judges. Because pretrial publicity was proving to be a problem, both judges entered “gag” orders prohibiting law enforcement officials, crime lab employees, parties, and attorneys from'releasing any extra-judicial statements or interviews relating to the trials, parties, or issues in the trials. The judge in the Sowell case also drafted a protective order, referencing the gag order and allowing disclosure of the Sowell files to appellant Sharp and his attorney provided that they first sign the protective order, thereby acknowledging the terms of the- protective order and the fact that violation of it could result in a contempt citation. The judge in appellant’s case then “adopted” the protective order as her own in appellant’s rape case. Appellant’s counsel refused to sign the order. On appeal, appellant contends that he was denied the - Sowell files and, thereby, denied exculpatory materials. - - We do not completely understand appellant’s reasons for not signing the protective order. Had he done so, he would have received the files. He insists that signing the order 19would have constituted “entering an appearance” in the murder case pending against Sowell and would have somehow tainted appellant by “publishing the fact that [appellant’s] case was related to Sowell’s case or that he was a co-defendant of Sowell or that he was implicated in the murder of J.W.” However, one enters an “appearance” when he comes into court as a party or interested person or as a lawyer for a party or interested person. Black’s Law Dictionary 118 (10th ed. 2014). All appellant was asked to do, on the other hand, was acknowledge the protective order and the potential consequences for its violation. Rule 19.4 of the Arkansas Rules of Criminal Procedure, entitled “Protective Orders,” provides as follows: Upon á showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit his counsel to ■■'make beneficial use thereof.' The court on more than one occasion even suggested that’appellant’s signing of the order could be done under seal so that the public would not be aware that he had done so. It appears to . us that the trial court correctly determined that appellant refused to comply with a simple and authorized condition and that his refusal was the only reason that he did not have access to the requested information. We find no reversible error. IV. • Denial of Access to Crime Lab File on Victim Appellant’s argument that he was erroneously denied information from the vie- tim’s file at the State Crime Lab is without merit for the- same reasons discussed in Point III above. The only impediment to his access to the requested information was his unreasonable refusal to sign the protective order. |inV. Denial of Access to. Childn-Abuse Reports Appellant also argues that the trial court erred in refusing his request to review reports and records held by the Arkansas Department of Human Services (DHS) regarding allegations that J.W.’s parents had abused her. After requiring that DHS be provided notice and an .opportunity ,to be heard on whether the information should be released, the trial court then held a hearing.. Counsel for DHS stated that it had received reports accusing J.W.’s .father of educational and medical , neglect and accusing the child’s mother of inflicting cuts and bruises. There were no reports of sexual abuse and no reports implicating either appellant or Chris Sowell in any abuse, and the reports against J.W.’s parents were deemed by investigators to be “unsubstantiated.” The trial court took the matter under advisement, stating that it would receive the DHS files in camera and decide whether any of the material was relevant and should be turned over to appellant. The court agreed to make any information deemed irrelevant a part of the record on appeal. Appellant’s argument is unavailing. First, appellant’s contention that the trial judge “determined the files should not be released as it was her opinion there was nothing in those files that were useful to [appellant]” is unsupported by the record. Appellant cites us to one page in the abstract and two orders in the addendum for the quoted argument. However, those portions of the record reflect that the trial court was going to ¡review the reports in camera and decide .their relevance. We have been pointed to nothing in the record showing that the matter was ever raised again by appellant. And, despite the trial court’s stated willingness to include in the record on appeal any information that might be deemed In irrelevant, we find no such information in this record and no objection below to its absence. Therefore, we have before us no final ruling on appellant’s motion and no proffer of the reports in question for this court to review. One must obtain a ruling to preserve an issue for appeal, Richards v. State, 2009 Ark.App. 721, 2009 WL 3644191, and must also proffer evidence for review before we can determine whether one has suffered any prejudice. Brown v. State, 368 Ark. 344, 246 S.W.3d 414 (2007). In any event, .appellant’s argument in the trial court- was that “educational” and “medical” neglect might somehow be probative of who raped the victim. No effort is made by appellant on appeal to connect those dots or to otherwise demonstrate how .such inforniation would fall into any of the categories of discoverable material under Ark. R. Crim. P. 17.1. VI. Denial of Motions for Continuance Appellant’s final contention is that the trial court erred in denying his-motions for continuance. Specifically, he argues that his trial should have been continued until after . disposition. of . the murder case against Sowell and disposition of the contempt charge against appellant’s attorney for allegedly violating the protective order. Again, we see no reversible error. A continuance should be granted only upon a showing of good cause and only for so long as is necessary. Ark. R. Crim. P. 27.8.. A motion for continuance is addressed to the sound, discretion of the trial court,-whose-decision will-not be reversed on appeal absent a 112clear abuse of that discretion.- Elliott v. State, 2012 Ark. App. 126, 389 S.W.3d 100. The appellant bears the burden of establishing not only that the trial court abused its discretion in denying the motion for continuance, but he must also show prejudice that amounts to a denial of justice. Id. Appellant’s argument that his trial should have been continued until after disposition of the Sowell murder charge was based on appellant’s insistence that such was the only way for him to have access to the Sowell file. He argues that, had his case been continued, he could have had access to the Sowell file because, Upon disposition of the murder case,’ it would have ceased'to be “investigatory.” However,’ ' the State made it clear that it planned to try appellant before Sowell regardless of whether appellant was granted a'continuance, and appellant cites nothing to support the proposition that the trial court could force the State to alter those plans. Moreover, as discussed in' Points III and IV above, the Sowell file was already available to appellant many months before his trial. All he had to do to secure the file was sign' the protective order, which requirement sought nothing more than acknowledgment by appellant and his attorney of the gag order and the possible consequences for violating it. We find no abuse of discretion in the court’s denial of a continuance on this basis. Nor can we conclude that the trial court abused its discretion in denying appellant’s motion to continue the trial until after his • attorney’s contempt hearing. The motion was based on appellant’s insistence that having the contempt matter “hanging over the head of [his] counsel as he questioned witnesses and put on evidence,” and worrying whether “those | ^questions or that evidence would subject him to further contempt charges,” constituted good cause for a continuance. However, appellant did not make any proffer to the trial court, either when the continuance motion was made or in his motion for a new trial based on this argument, regarding what he would have done differently at the trial but for the contempt charge. Nor has he provided any specific argument in this regard on appeal. Without such information, we cannot determine that appellant suffered any prejudice. See Ferrell v. State, 325 Ark. 455, 462, 929 S.W.2d 697, 702-03 (1996). Moreover, it appears that the protective order dealt with statements to, or interviews with, media outlets and 'dissemination of -materials through public communication or social media. It does not seem particularly reasonable to us that the order could be read to prohibit appellant from presenting relevant evidence in a court of law. In any event, counsel surely could have sought a ruling from the court, without reasonable worry about being held in contempt, before asking any questions or introducing any evidence that he deemed potentially troublesome. Affirmed. Gladwin, C.J., and Abramson, J., agree. , The motion seeking to have counsel held in contempt accused him of going to the crime lab and knowingly seeking from lab employ- ■ ees information covered by the protective or-der without having first signed the order.

PER CURIAM 11 Petitioner- Robert Joseph Moten is incarcerated in the Arkansas Department of Correction pursuant to a 2010 judgment reflecting his convictions on- one count of first-degree battery and one count of second-degree battery with an aggregate sentence of 264 months’ imprisonment imposed on the two counts, On September 24, 2015, he filed a petition asking this court to reinvest jurisdiction in the trial court so that he may file a petition, for writ of error coram nobis. Moten later filed an amended petition, which he apparently wishes to substitute for the earlier petition. He also filed a motion for an ev-identiary hearing in the matter, which is intended as a supplement to Moten’s amended petition. We therefore treat lathe amended petition as a substituted petition and the motion for hearing as an amended petition, and we deny the petitions. . A prisoner who appealed his judgment and who wishes to attack .his conviction by means of a petition for , ¡writ of error coram nobis must first request this court to reinvest jurisdiction in the trial court. Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. Where the record for the underlying proceedings , remains in this court, the circuit court is deprived of jurisdiction, and leave from this court is required before the circuit court may consider a petition for the writ. Id; This court will grant permission to proceed with a petition for the writ only when it appe'ars, looking to the reasonableness of the allegations of the proposed petition and the existence of the^ probability of the truth of those allegations, that the proposed attack on the judgment is meritorious. Isom v. State, 2015, Ark. 225,462 S.W.3d 662. This court is not required .to accept at face value the allegations of the petition. Venn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. White v. State, 2015 Ark. 151, 460 S.W.3d 285. The remedy is exceedingly narrow and appropriate only when an issue was not addressed or could not -have been .addressed- at trial because it was somehow hidden or unknown. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. White, 2015 Ark. 151, 460 S.W.3d 285. |3Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. This court has recognized four categories of error for which the writ is available: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; (4) a third-party confession to the crime during the time between conviction and appeal. Noble, 2015 Ark. 141, 460 S.W.3d 774. The writ is issued only under compelling circumstances to achieve justice and to address errors of the; most ■ fundamental nature. White, 2015 Ark. 151, 460 S.W.3d 285; A brief summary of the facts established by the evidence presented at trial is necessary to understand the issues that Moten raises in his petition. The trial testimony established that Iesha Timmons, and Curtis Abrams were at a club in Stuttgart for a birthday party. Moten’s friend, Jonathan Jones, approached Timmons while she was dancing. Timmons pushed Jones away when he placed his hands down the back of her pants. Abrams intervened, and Jones ended up on the floor with Abrams standing over him. At this point, Moten came up behind Abrams. Timmons saw Moten striking Abrams, and she pulled Moten away. She then realized that, her arm was cut. Abrams had been stabbed in the back, the side, and the buttocks with a knife. Timmons’s wounds were not serious, but Abrams’s were. His wounds required hospitalization and surgery. Moten was convicted at a . bench trial, and the Arkansas Court of Appeals affirmed the judgment. Moten v. State, 2011 Ark. App. 417, 2011 WL 2141382. Moten unsuccessfully pursued postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015), and this court affirmed the denial of relief. Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam). |4In his petitions, Moten alleges that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as his proposed grounds for the writ. Specifically, he points to an incident report filed by police officer Allison Davis, an affidavit stating facts to support probable cause for his arrest warrant, and Jones’s criminal histor ry as evidence that he alleges the State suppressed. . ■ To establish a Brady violation by the State as grounds for coram-nobis relief, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully.or inadvertently; and prejudice must have ensued. Isom, 2015 Ark. 225, 462 S.W.3d 662. Assuming that the evidence otherwise meets the requirements of a Brady violation, and is both material, and prejudicial, the withheld evidence must also have been such as to- have prevented rendition of the judgment had it been known at the time of trial, that is,.the.petitioner must demonstrate, that there is. a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented,- had'the information.been disclosed at trial. See Camp v. State, 2012 Ark. 226, 2012 WL 1877371 (per curiam). Moten fails to allege & Brady violation that would provide grounds for the writ because, the evidence that he alleges was withheld would not have prevented rendition of the judgment if it had been known at the time of;trial. Moten contends that the sup-presséd items would have furthered his claim of an illegal arrest. He' asserts that the initial incident report and other items show that the statements in the probable-cause affidavit were false and 'therefore insufficient to establish probable cause for his arrest. As- this court noted in our. opinion affirming the denial of Moten’s petition for postconviction relief, a challenge to the probable cause for the warrant or the validity of an 1 (¡arrest, without more, does not bring the outcome of the proceedings into' question. See Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974); see also Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992) (holding that an illegal - detention will not void a subsequent conviction). An illegal arrest, standing alone, does not vitiate a valid conviction. Chestang v. State, 2015 Ark. 372, 2015 WL 5895421 (per curiam) (citing Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994)). In conjunction with this argument, Mo-ten contends that he was unfairly singled out for prosecution because he declined to provide a statement concerning the events. Even if Moten could demonstrate that the prosecution lacked a sufficient basis for the arrest or that his arrest was illegal such proof would not have prevented rendition of the judgment or establish the requisite prejudice to support issuance of the 'writ. To the extent that Moten may assert trial error or insufficient evidence concerning this issue, the claims are not within the purview of a coram-nobis proceeding. Carter v. State, 2015 Ark. 397, 2015 WL 6560610 (per curiam). Moten also contends that the allegedly withheld evidence could have been used to impeach Jones and a police investigator, Detective Mark Duke. Moten admits, however, that neither Jones nor Duke testified at trial. Moten has therefore not shown that the allegedly withheld evidence could have been used for impeachment purposes and produced a different result at trial. He cannot demonstrate a reasonable probability that the judgment would not have been rendered if the evidence had been available to impeach the witnesses. Moten also contends that the evidence might have been used to better present Jones as an alternate suspect, but he does not explain how the. evidence may have been used at trial other than for impeachment purposes. Moten appears to contend that the incident report and other informa-: tion allegedly withheld make it clear that Timmons did not see who cut her or Lstabbed Abrams, but that fact was brought out on cross-examination at trial. Moten does not demonstrate that there was additional information in the allegedly withheld evidence that was not brought out at the trial. Moten fails to allege facts to support his allegations that material evidence was withheld that would have prevented the rendition of the judgment had it been known.at the time of trial; therefore, he fails to provide grounds for issuance of the writ. See Williamson v. State,. 2015 Ark. 373, 471 S.W.3d 633 (per curiam). The proposed attack on the judgment does not appear meritorious, and Moten has not stated cause to support reinvesting jurisdiction in the trial court for coram-nobis proceedings. Although the State contends that Moten has not pursued his claims with diligence, we need not consider whether Moten was diligent • because he failed to present grounds to support issuance of the writ. See Barnett v. State, 2015 Ark. 190, 461 S.W.3d 683 (per curiam); Amended petition treated as substituted petition; motion for hearing treated as amended petition; petitions denied.

PAUL E. DANIELSON, Associate Justice | petitioners Entergy Arkansas, Inc. (“EAI”); Entergy Operations, Inc. (“EOI”) (collectively “Entergy”); and DP Engineering, Ltd. Co. (“DP”), petition this court for writs of prohibition directed to the respondent Pope County Circuit Court, which denied their motions to dismiss the complaint of the plaintiff below, Jess Clayton. Entergy and DP contend that the circuit court is precluded from continuing to exercise jurisdiction over | ¡..Clayton’s claims against them because ju- , risdiction lay exclusively with the Arkansas Workers’ Compensation Commission (“the Commission”) to determine the applicability of the Workers’ Compensation Act. For the reasons set forth in Entergy Arkansas, Inc. v. Pope County Circuit Court, 2014 Ark. 506, 452 S.W.3d 81, delivered this same day, we grant the writs of prohibition. The record in the instant case reflects that on September 19, 2013, Jess Clayton filed a personal-injury complaint in the circuit court. The complaint alleged that on Easter Sunday, 2013, Clayton was working at Entergy’s Arkansas Nuclear One (“ANO”) facility near Russellville, when he was injured by a falling steel beam. Clayton asserted that he suffered multiple and massive physical injuries, including a broken back and leg, as well as severe cuts, scrapes, and contusions. Clayton averred that he was an employee of Precision Surveillance Corporation (“PSC”), “which was contracted by Enter-gy.” Clayton claimed that prior to his injury, Entergy had decided to complete needed maintenance at its ANO facility that included the removal of the “Main Turbine Generator Stator,” which weighed over a million pounds. Clayton stated that the stator required a crane to move it and that Entergy had hired Siemens “to help plan, execute, hire subcontractors, and provide other support” for the required maintenance. According to the complaint, Bigge was contracted as the crane provider, and DP was retained to “provide engineering advice as to the ability of the turbine building deck to support the weight of the crane and the stator.” Clayton claimed that on the day of the |aaccident, while the lift of the stator was in progress, he, along with others, was directed to remove a guardrail to facilitate the stator’s move; just after doing so, the crane holding the stator buckled and crashed down, resulting in the crane’s beams falling, one of which injured Clayton. Clayton alleged ordinary negligence, negligent hiring, negligent training, negligent supervision, negligent retention, and negligent retention of an independent contractor on the part of Bigge, Siemens, DP, Entergy, and VEI Contractors, and he sought damages and punitive damages, declaratory relief, and a jury trial. On October 30, Entergy moved to dismiss or, alternatively, to stay the proceedings. The basis for the motion was that both EAI and EOI were statutory employers, or alternatively special employers, of Clayton and were therefore immune from suit under Arkansas’s workers’ compensation laws. Entergy alternatively sought a stay of the action with direction to the parties to present the issue to the Commission, if the court determined that there was a factual issue preventing Entergy’s dismissal. Attached to Entergy’s motion were several exhibits consisting of multiple pages. Clayton responded to the motion, asserting that he was PSC’s employee and that he was covered by workers’ compensation insurance-provided by PSC. Clayton claimed that neither EAI nor EOI could satisfy the requirements to be a statutory or special employer as a matter of law, and therefore, Entergy’s motion to dismiss should be denied. Clayton later amended his response to include additional exhibits, and he filed a first amended complaint, incorporating by reference his original complaint and requesting damages for future pain and suffering. Entergy also filed a motion to dismiss the amended complaint or, alternatively, to stay the proceedings, incorporating by reference its |4prior motion, brief in support, and reply to Clayton’s response. DP similarly filed a motion to dismiss, in part, on December 18, 2013. It asserted that, in the event that Clayton was a statutory or special employee of Entergy at the time of his injury, DP’s general employees, who were also onsite at ANO, were Enter-gy’s special employees as well. DP claimed that its general employees were also protected as Clayton’s co-employees by the exclusive-remedy provisions of Arkansas’s workers’ compensation laws, making them personally immune from liability. DP alleged that if its employees’ personal liability was extinguished under the exclusive-remedy provision, so too was any vicarious liability that could be imputed to DP. DP further adopted and incorporated by reference the arguments, authorities, and exhibits relied on by Entergy, and sought dismissal of Clayton’s ordinary- negligence claim or, alternatively, a stay of the proceedings pending review by the Commission. On December 19, 2013, the circuit court held a hearing on various pending motions in both the instant case and that involving the death of Wade Walters, including En-tergy’s and DP’s motions to dismiss. It subsequently entered its order denying the motions on March 12, 2014. The circuit court’s twenty-three-and-one-third page order contained fifty-three findings of fact and forty-three conclusions of law. The order ultimately concluded that neither EAI nor EOI could satisfy the requirements to be a “statutory” or “special” employer of Walters or Clayton as a matter of law; it therefore denied Entergy’s motion to dismiss in | ¡¡its entirety. The circuit court further concluded that DP could not establish immunity as a matter of law and also denied its motion to dismiss in its entirety. On May 7, 2014, Entergy filed the instant petition for writ of prohibition or certiorari with this court, claiming that the circuit court is wholly without jurisdiction and seeking to prevent the circuit court from continuing to exercise jurisdiction over the matter until the Commission has spoken. It contends that the Commission has exclusive, original jurisdiction to decide in the first instance whether Clayton’s claims against it are covered by the Workers’ Compensation Act. Entergy avers that both of its defenses under the Act are fact-based and, therefore, the Commission must decide in the first instance the fact-driven question of whether Entergy is a statutory or special employer covered by the Act. Clayton, on the other hand, urges that the material facts are undisputed such that the circuit court had jurisdiction to determine Entergy’s immunity as a matter of law. DP also petitions this court for a writ of prohibition, adopting and incorporating Entergy’s arguments in its petition. DP contends that Arkansas law is clear that the Commission has exclusive jurisdiction to consider and decide issues of fact, including factual issues regarding the existence of a special-employer relationship, as well as issues of fact regarding whether a person is entitled to co-employee immunity. Accordingly, it urges, the circuit court encroached upon and supplanted the Commission’s jurisdiction when it issued the order denying DP’s and Entergy’s motions to dismiss and declined to send the issues of special employer/employee, exclusive-remedy immunity, and co-employee immunity to the Commission for consideration and determination, and the writ should be issued. As he did | Bin response to Enter-gy’s petition, Clayton argues that the parties agreed that the facts were undisputed such that the circuit court could determine the issues before it as matters of law. To that end, he contends, the circuit court correctly exercised its jurisdiction in denying the motions to dismiss. We agree with Entergy and DP that the writs are warranted for the reasons set forth this same day in Entergy Arkansas, Inc. v. Pope County Circuit Court, 2014 Ark. 506, 452 S.W.3d 81. We therefore grant the petitions for writ of prohibition. Petitions for writ of prohibition granted. Baker and Hart, JJ., dissent. . While not named as a respondent by Enter-gy and DP, Clayton has assumed the role of a separate respondent for purposes of these petitions. This court has observed that the proper party as respondent to a petition for writ of prohibition is the circuit court, not the judge, and not an injured worker or his or her representative. See International Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008). However, in the instant case, the Attorney General notified this court on May 9, 2014, that it would not file a response to Entergy's petition on behalf of the named respondent, the Pope County Circuit Court. In addition, this court granted DP's motion for leave to join in Entergy’s petition on May 29, 2014, and DP filed its petition for writ of prohibition on June 5, 2014. . The complaint named several defendants, including: Bigge Power Constructors; Bigge Crane and Rigging Co.; Bigge Group, Inc.; Siemens Energy, Inc.; DP; EAI; EOI; VEI General Contractors, Inc.; and John Doe 1, John Doe 2, and John Doe 3. . The circuit court further noted that the hearing included matters in a case styled as Entergy Arkansas, Inc. v. Bigge Crane & Rigging Co., No.2013-166.

WAYMOND M. BROWN, Judge | Appellant appeals from his conviction by jury trial of possession of paraphernalia with intent to' deliver, a Class B felony; maintaining a drug premises, a Class C felony; and possession of a controlled substance-crack cocaine, a Class D felony. On appeal, appellant argues that the circuit court erred in (1) denying his motion for directed verdict on each of the three charges he was convicted of, and (2) running his sentences consecutively. We affirm. Darrell Spells, then director of the Thirteenth Judicial District Drug Task Force in Dallas County, Arkansas, developed information that appellant was selling narcotics in Fordyce, Arkansas. Acting on this information, Officer Spells engaged an informant to make a controlled buy from appellant. Officer Spells and the informant met on the night 12of November 26, 2012. Officer Spells had the informant empty her pockets to ensure she had no other money or drugs on her. No further search was completed. Officer Spells gave her sixty dollars to make the purchase and a cell-phone-appearing device to record audio and video. At approximately 7:00 p.m., Officer Spells drove the informant near 616 East 10th Street where Officer Spells had information appellant lived. The informant exited Officer Spells’s vehicle and walked in the direction of 616 East 10th Street. Officer Spells had no visual of the informant once she left the vehicle. She returned approximately ten minutes later with what appeared to be crack cocaine. Based on this evidence, Officer Spells obtained a search warrant for the residence located at 616 East 10th Street and for appellant. The same was executed on January 14, 2013. No one was in the home at the time of execution. Appellant surrendered himself to police on January 15, 2013. During the search, Officer Spells seized two sets of digital scales, some Glad sandwich bags, two pieces of mail addressed to appellant at a neighboring address, and a piece of paper appearing to have a handwritten ledger on it. One of the scales had a white powdery substance on it that appeared to be crack cocaine. Officer Spells scraped off the residue and put it in an envelope for testing. Testing of the substance received from the informant during the controlled buy and of the substance scraped off the scale revealed that the former was .5237 grams of cocaine and the latter was .0225 grams of cocaine. On March 14, 2018, the State filed a three-count felony information charging appellant with delivery of fewer than two grams of cocaine, possession of drug ^paraphernalia for the purpose of manufacturing cocaine, and maintaining a drug premises. The State amended the infor-' mation on October 18, 2013, to add habitual-offender charges to each of the three counts charged in the March 14, 2013 information. A second amended information was filed on February 5, 2014, adding a count of possession of fewer than two grams of cocaine. At the conclusion of the trial, the jury found appellant not guilty of the charge of delivery of fewer than two grams of cocaine. However, the jury found appellant guilty of possession of drug paraphernalia for the purpose of manufacturing cocaine, maintaining a drug premises, and possession of fewer than two grams of cocaine. The jury recommended a sentence of ten years’ imprisonment for each offense, but did not make a recommendation on whether the sentences should be served concurrently or consecutively. The circuit court ordered that the sentences be served consecutively for a total of thirty years’ imprisonment. A sentencing order reflecting the same was entered on February 28, 2014. This timely appeal followed. I. Directed Verdict A motion for directed verdict is a challenge to the sufficiency of the evidence. When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the guilty verdict, considers only that evidence supporting the verdict, |4and affirms if substantial evidence supports the verdict. Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. We have held that the credibility of witnesses is a matter for the jury’s consideration. Where the testimony is conflicting, 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, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. A. Possession of Drug Paraphernalia with Purpose of Manufacturing Appellant first argues that the circuit court erred in failing to direct a ver- diet in his favor on the charge of possession of drug paraphernalia for the purpose of manufacturing | ficocaine. Appellant specifically argues that because he did not live in the home from which the drug paraphernalia was seized, and the same was not seized from a place immediately and exclusively accessible and subject to his control, the State failed to prove that he actually or constructively possessed any of the items seized from the home, and the circuit court should have granted his motion for directed verdict. Arkansas Code Annotated section 5-64-443(b) states that “[a] person who uses or possesses with the purpose to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance that is methamphetamine or cocaine upon conviction is guilty of a Class B felony.” It is not necessary for the State to prove literal physical possession of drugs in order to prove possession, constructive possession — control of or right to control the contraband — is sufficient. To prove constructive possession, the State must establish that appellant exercised care, control, and management over the drug paraphernalia. Constructive possession may be established by circumstantial evidence. Appellant’s argument relies a great deal on his assertion that he did not live in the house. He testified that he did not live in the home at 616 East 10th Street in which the | (¡search warrant was executed, but that he lived in a nearby trailer with his grandmother at 622 East 10th Street. His girlfriend, Shambreka Broughton, testified that she lived in the 616 East 10th Street property alone with her four-year-old daughter by appellant. She agreed that appellant lived with his grandmother. Appellant received his mail at his grandmother’s address — 622 East 10th Street. However, appellant testified that despite not living at the 616 East 10th Street property, “[w]hen he get [sic] around Shambreka’s house, okay, my cousin call [sic] me and say [sic] you got [sic] mail” because he did not check the mail at his grandmother’s house. He testified that his cousin would “bring me my mail around [Broughton’s house.]” Broughton also testified that appellant’s cousin would bring appellant’s mail to him at her home. Furthermore, appellant parked at least one of his vehicles at the 616 East 10th Street property. And finally, the confidential informant testified that she had purchased drugs from appellant prior to the controlled buy and that appellant entered the 616 East 10th Street property to obtain the, drugs she had purchased from appellant during the controlled buy. The fact-finder is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. The fact-finder could have reasonably concluded that appellant lived at the 616 East 10th Street property with his girlfriend and not the 622 East 10th Street property as he asserted. 17Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. In such cases, the State must prove two elements: (1) that the accused exercised care, control, or management over the contraband, and (2) that the accused knew the matter possessed was contraband. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Broughton testified that she was “not aware” that appellant might have been selling drugs out of her home; did not know any of the names listed on the makeshift ledger found near the scales; did “not ever” buy fold-top bags, as she only bought Ziploc bags and did not know of any reason why the fold top bags were in her house; and never looked inside the drug-paraphernalia-containing cabinets. She also testified that she lived alone with her daughter in the home. Appellant then testified that “I know without a doubt in my mind [the drug paraphernalia] ain’t [Broughton’s] and I know they ain’t mine.” Otherwise, he testified that he did not know who had been there. Additionally, where Broughton knew none of the names on the ledger, although he denied knowing all of the names, appellant admitted knowing at least some of the names on the ledger. And 18again, the confidential informant testified that appellant had gone into Broughton’s house to obtain the drugs she purchased from him in the controlled buy. As such, the testimony showed that Broughton did not know anything — and appellant agreed — about the drug paraphernalia or about any drug-dealing. Accordingly, where the testimony was that only appellant and Broughton were in the home, and both .appellant and Broughton agree that Broughton was not involved in drugs, the jury could reasonably infer that as the only other adult in the home, appellant exercised control over the contraband and knew that it was contraband. We find no error. Appellant’s second argument, in the alternative, is that even if the State proved appellant constructively possessed the seized items, the State failed to prove the seized items were drug paraphernalia. The State asserts that this argument is not preserved as to whether the State proved that the sheet of paper containing what appeared to be a ledger of some sort was drug paraphernalia. We agree. Failure to present a specific argument in a directed-verdict motion will constitute a failure to abide by Rule 33.1, resulting in a failure to preserve the issue for appellate review. Appellant’s motion for directed verdict below specifically addressed the digital scales and the baggies, but not the sheet of paper. Accordingly, we address the argument only with regard to the digital scales and the baggies. There was testimony from the confidential informant that appellant entered the 616 East 10th Street property to retrieve $60 worth of crack during the controlled buy. During |3execution of the search warrant, two sets of digital scales were seized along with baggies. Officer Spells, who initiated the controlled buy and helped execute the search warrant, testified that he had gathered information that appellant was dealing drugs prior to the controlled buy and that he knew where appellant lived. He testified, based on his five years of experience with the Thirteenth Drug Task Force, that the baggies were “consistent with packaging drugs” and that digital scales were often used to weigh narcotics like crack cocaine “because a lot of times you are dealing with such small amounts.” He said drug dealers needed an accurate reading to determine how much to charge for their narcotics. As for there being two scales — one with a white powdery substance on it and one with a grassy substance on it — Officer Spells testified that dealers who sell different narcotics often use different scales for each narcotic “because they do not want to cross contaminate each one.” The white powdery substance on the one scale was tested and identified as cocaine. The baggies were found in the same cabinet as the scales. Broughton testified that there was no reason for the baggies to be in her house because she did not purchase fold-down baggies. The jury could reasonably conclude that the scales and baggies were used for weighing and packaging cocaine. We hold that there was substantial evidence to support appellant’s conviction of possession of drug paraphernalia. The circuit court did not err in denying appellant’s motion for directed verdict as to this charge. B. Maintaining a Drug Premises Appellant’s second argument is that the circuit court should have entered a directed verdict in favor of appellant on the charge of maintaining a drug premises because the | inState failed to prove that he actually or constructively possessed Broughton’s home or had a superior or equal right to it. We disagree. Arkansas Code Annotated section 5-64-402(a)(2) provides, (a) It is unlawful for any person: (2) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, or other structure or place or premise that is resorted to by a person for the purpose of using or obtaining a controlled substance in violation of this chapter or that is used for keeping a controlled substance in violation of this chapter. The same analysis previously applied to appellant’s first argument applies here. There was sufficient testimony and evidence from which a jury could reasonably conclude that appellant lived with Brough-ton, not his grandmother. Likewise, there was sufficient evidence from which a jury could reasonably conclude that appellant was maintaining a drug premises in Broughton’s house where he was the only other adult in the home and both he and Broughton agreed that she was not involved in drug-dealing. The trier of fact “may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s”; we will not second guess these determinations. The circuit court did not err in failing to direct a verdict in appellant’s favor on this charge. C. Possession of a Controlled Substance Appellant’s third argument is that the circuit court should have entered a directed verdict in his favor on the charge of possessing a controlled substance. He specifically argues that the State failed to prove this charge because Officer Spells failed to witness the ^controlled buy and the recording device failed to record the buy or his voice in any exchange with the informant. Arkansas Code Annotated section 5-64-419(a) provides that it is unlawful for a person to possess a controlled substance. Arkansas Code Annotated section 5-64-419(b)(1)(A) states: (b) A person who violates this section with respect to: (1) A Schedule I or Schedule II controlled substance that is methamphetamine or cocaine with an aggregate weight, including a,n adulterant of diluent, of: (A) Less than two grams (2g) upon conviction is guilty of a Class D felony[.] Appellant cites Slater v. State, in support of his argument that because Officer Spells did not witness the transaction between appellant and the informant, and the audio/video surveillance failed to record any drug transaction, his possession conviction should be reversed. In Slater, we held that the evidence was insufficient to support the defendant’s conviction for delivery of cocaine. This case is distinguishable. While Officer Spells did not see the transaction, and it is unclear whether the audio/video evidences an exchange between the informant and appellant, unlike in Slater, the informant did testify in this matter. The fact that the informant testified makes this an issue of credibility. The jury is responsible for determining the weight and credibility of evidence. The informant’s testimony, in addition to appellant’s own testimony admitting to multiple convictions for drug-related crimes, when paired with the fact that the white powdery substance returned to Officer Spells by the informant was in fact .5287 grams of cocaine, were of sufficient |12force to compel the jury’s conclusion that appellant possessed cocaine without resorting to speculation or conjecture. The circuit court did not err. II. Consecutive Sentencing Appellant’s final argument is that the trial court abused its discretion in ordering appellant’s sentences to run consecutively rather than concurrently. He asserts that the circuit court did so because it found appellant to be “obnoxious.” We disagree. Arkansas Code Annotated section 5-4-403(a) provides, “When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, ... the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.” Whether sentences should be run consecutively or concurrently is within the sole discretion of the trial court, and exercise of that discretion will not be reversed on appeal unless there is an abuse of that discretion; it is a heavy burden to prove that a trial court did not exercise its discretion in determining whether to run sentences consecutively. There is no requirement that the court explain its reason for running sentences consecutively | iaIn announcing that appellant’s sentence would run consecutively, the court stated simply that appellant’s “three sentences are to be run consecutively.” No further explanation was given. Appellant’s argument that the court ordered consecutive sentences due to appellant’s attitude is pure speculation. Accordingly, there is no evidence that the court abused its discretion. Affirmed. Gruber and Glover, JJ., agree. . The plan also included a controlled buy from another suspected drug dealer. While the controlled buy was attempted on the other suspected drug dealer, he was not home. This attempt is also on the recording from that evening, which was played in open court. . The second scale had a grassy substance on it, but the substance was not tested. . The State orally amended the information at the beginning of the February 10, 2014, trial to change the amount of the fine associated with possession-of-drug-paraphemalia-for-the-purpose-of-manufacturing-cocaine count from $10,000 to $15,000. . Ashley v. State, 2012 Ark. App. 131, at 6, 388 S.W.3d 914, 919 (citing Lueken v. State, 88 Ark. App. 323, 198 S.W.3d 547 (2004)). . Id. .Id. . Id. . Id. . Williams v. State, 2011 Ark. 432, at 4, 385 S.W.3d 157, 160 (citing Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)). . Id. (citing Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008)). . (Supp. 2013). . Bustillos v. State, 2012 Ark. App. 654, at 5, 425 S.W.3d 44, 47 (citing Mack v. State, 2010 Ark. App. 514). . Duggar v. State, 2013 Ark. App. 135, at 3, 427 S.W.3d 77, at 80 (citing McKenzie v. State, 362 Ark. 257, 262-63, 208 S.W.3d 173, 175 (2005)). . Id. . Dishman v. State, 2011 Ark. App. 437, at 7, 384 S.W.3d 590, 594 (citing Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006)). . Carter v. State, 2010 Ark. 293, at 6, 367 S.W.3d 544, 548 (citing Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147). . Id. . Id. . Bradley v. State, 2013 Ark. 58, at 12, 426 S.W.3d 363, 370 (citing Ark. R. Crim. P. 33.1(c) (2012)). . Holloway v. State, 2010 Ark. App. 767, at 3, 379 S.W.3d 696, 699 (citing Barrett v. State, 354 Ark. 187, 195, 119 S.W.3d 485, 490 (2003)). . 2011 Ark. App. 213, 382 S.W.3d 771. . Woods v. State, 2013 Ark. App. 739, at 5, 431 S.W.3d 343, 347 (citing Richey v. State, 2013 Ark. App. 382). . (Repl. 2013). . Wallis v. State, 2010 Ark. App. 238, at 10, 374 S.W.3d 737, 742 (citing Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269). . Throneberry v. State, 2009 Ark. 507, at 7-8, 342 S.W.3d 269, 272 (citing Pyle v. State, 340 Ark. at 61, 8 S.W.3d at 496; Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989) (no abuse of discretion where the trial court gave no reason for running sentences consecutively other than "the evidence”)).

RITA W. GRUBER, Judge | ¶ George Wilcox and his limited partnership, Wilcox Investment Limited Partner ship, (collectively, Wilcox) bring this appeal from a summary judgment in favor of Brad H. Wooley Auctioneers, Inc.; Russell Huckaby; United Country-Market Station Real Estate Auctioneers; and Wooley & Huckaby Auctioneers & Land Brokers, LLC (collectively, the Auctioneers) on Wilcox’s third-party claims that the Auctioneers breached their contract with Wilcox when they failed to stop an auction of Wilcox’s real property. Finding no merit in Wilcox’s arguments, we affirm the circuit court. Background |2On October 31, 2011, Wilcox entered into a contract with the Auctioneers to market and sell approximately 338 acres of real property owned by the partnership in Pulaski County. It was to be an “absolute” auction, without reserve and regardless of price. The sale was scheduled for December 2, 2011. In his deposition, Wilcox testified that, as the sale approached, he was having reservations and was inclined to cancel the auction the day before it was scheduled. He further testified that because the Auctioneers agreed to cancel the auction if the bidder turnout was low, he decided not to cancel the sale. Only four bidders attended the sale. Wilcox did not attend, but was represented by two of his children and his attorney. Wilcox further testified by deposition that he was on the phone with his daughter Kaye Wilcox when the Auctioneers suggested that they cancel the sale just before the scheduled time to begin. Wilcox testified that he relayed his agreement to the postponement through his daughter. The Auctioneers dispute that any agreement to halt the sale was made. Nevertheless, the Auctioneers started the bidding, and Ken Shollmier was declared the highest bidder with a bid of $235,000.. Wilcox, contending that the property was appraised in excess of $950,000, refused to complete the sale. Shollmier sued to compel Wilcox to proceed with the sale. Shollmier twice amended his complaint. Wilcox answered, raising affirmative defenses and requesting a jury trial. Wilcox also asserted that Shollmier engaged in collusion during the bidding process such | sthat the sale should be voided. Wilcox filed a motion for leave to file a third-party complaint against the Auctioneers. The circuit court granted leave to file the third-party complaint. In the complaint, Wilcox repeated the previous allegations that the Auctioneers had breached their agreement to cancel the auction if there were not sufficient bidders. He further asserted entitlement to indemnification from the Auctioneers for any losses and sought judgment for the difference in the value of the land, for expenses incurred in the auction, lost profits, and reasonable attorney’s fees. Wilcox- later filed an amended third-party complaint asserting that there was an oral modification of the auction contract and that the Auctioneers were liable on a promissory-estop-pel theory. The Auctioneers denied some of the allegations and pled certain affirmative defenses. The Auctioneers moved for summary judgment, asserting that the deposition testimony showed that Wilcox never requested that the Auctioneers cancel the sale, that there was no evidence of collusion among the bidders, that there was no indemnity agreement between Wilcox and the Auctioneers, and that the auction contract was not subject to oral modification. Wilcox responded to the motion and to the Auctioneers’ statement of undisputed facts. Following a hearing on the motion for summary judgment, the circuit court took the matter under advisement before granting summary judgment to the Auctioneers. Wilcox attempted to appeal, but we dismissed the appeal for lack of a final, ap-pealable order on the motion of the Auctioneers because Shollmier’s claims against Wilcox remained pending. 14After our dismissal of the earlier appeal, a jury trial was held on Shollmier’s complaint for specific performance and breach of contract. The case was submitted to the jury on interrogatories. The jury found that Wilcox and the Auctioneers entered into a contract to sell the real property at absolute auction to the highest bidder, that Shollmier was the highest bidder, and that Wilcox breached the auction contract and the purchase agreement. Prior to trial, Shollmier had elected the remedy of specific performance, and the court accordingly ordered Wilcox to convey the property to Shollmier. This appeal followed. Issues on Appeal On appeal, Wilcox contends that (1) the court erred in granting summary judgment on the amended complaint because Wilcox presented proof that the Auctioneers were without authority to proceed with the auction; the Auctioneers breached their duty by continuing the auction; the Auctioneers agreed to an oral modification of the auction contract; and (2) that the circuit court erred as a matter of law in granting summary judgment to the Auctioneers on Wilcox’s indemnity claim against the Auctioneers; in finding that any alleged modification of the auction contract was required to be in writing; and in finding that Wilcox could not proceed on a promissory-estoppel theory. Standard of Review Our supreme court has set forth the following standard of review with regard to motions for summary judgment: Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine | ¡jWhether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). A fact issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Id. In such an instance, summary judgment is inappropriate. Id. Discussion We address the arguments in a somewhat different order than the parties present in their briefs. Wilcox’s main contention is that there was an oral modification of the auction contract whereby the Auctioneers agreed to cancel the auction if there were not sufficient bids being received. Wilcox further argues that the Auctioneers suggested that the auction be called off minutes before it was scheduled to start and that Kaye Wilcox agreed the Auctioneers could cancel the auction. |fiWe find no merit to Wilcox’s contention, made in several of his points, that there was an oral modification of the written contract between himself and the Auctioneers. First, the circuit court correctly held that Arkansas Code Annotated section 17-17-112(a) requires that any modifications of the auction contract be in writing. A similar California statute has been deemed to be a statute of frauds for auctioneers. See Holyfield v. Julien Entertainment.com, Inc., 2012 WL 5878380 (C.D. Cal. Nov. 21, 2012) (discussing California Civil Code § 1812.608(d) (2005)). While, as Wilcox argues, the language of the California statute is distinguishable from that used in section 17-17-112, it is a distinction without a difference because both statutes are aimed at prohibiting auctioneers from selling property without written agreements with the property owner. Moreover, Wilcox ignores the general rule that a material modification of a contract within the statute of frauds must be in writing in order to be valid and binding. See Davis v. Patel, 32 Ark. App. 1, 4, 794 S.W.2d 158, 160 (1990) |7(discussing statute of frauds found at Ark. Code Ann. § 4-59-101(a)(4)). We are not bound by the circuit court’s interpretation, but in the absence of a showing that the circuit court misinterpreted the law, the circuit court’s interpretation will be accepted as correct. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001). Because Wilcox has not shown that the circuit court’s interpretation of section 17-17-112 as requiring any modification of an auction contract to be in writing is erroneous, we affirm on this point. Second, any claim that there was an oral modification failed for lack of consideration for the modification. The general rule is that there must be additional consideration when the parties to a contract enter into an additional contract. Crookham & Vessels, Inc. v. Larry Moyer Trucking, Inc., 16 Ark. App. 214, 699 S.W.2d 414 (1985). According to Wilcox, there was consideration in the form of mutual promises that Wilcox would not cancel the auction on the day before in exchange for the Auctioneers’ promise to halt the auction if the expected bids were not received. Although mutual promises may be adequate consideration to uphold a contract, the promise must have value to the party agreeing to the change; if no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract. Feldman v. Fox, 112 Ark. 223, 164 S.W. 766 (1914); Capel v. Allstate Ins. Co., 78 Ark. App. 27, 77 S.W.3d 533 (2002). As our supreme court has said, [i]f, without legal justification, one party to a contract breaks it, or threatens to break it, and to induce performance on his part, the adversary party promises to pay more than was originally agreed upon, no consideration is given for the promise; when the party who threatens to break the contract finally performs, he does no more than he | ¿was bound in law to do. Feldman, 112 Ark. at 226, 164 S.W. at 767; see also Youree v. Eshaghoff, 99 Ark. App. 4, 256 S.W.3d 551 (2007) (quoting Feld-man); Crookham & Vessels, supra (same). That is exactly what Wilcox was attempting to do when he said he wanted to cancel the auction on the day before the sale. Finally under this point, there is no merit to the argument that Wilcox and the Auctioneers agreed to an oral modification of the auction contract and that the Auctioneers breached the modified contract by proceeding without authority. However, George Wilcox’s testimony confirms that the Auctioneers did have the authority to proceed with the sale. He testified that he was not alarmed when Kaye told him that the auction had started and assumed that the Auctioneers must have received a bid over the phone. He continued: What am I going to do? Have my daughter go over and ask him what he was doing. I said, hire a man to sell your properly for you, and you get a little nervous and you get your confidence back. I had no reason to stop any sale. I had no reason. Both George Wilcox and Kaye Wilcox admitted that they did not direct the Auctioneers to halt the auction. This testimony not only fails to create a genuine issue of material fact under Ark. R. Civ. P. 56(c) but also contradicts the allegations in count I of Wilcox’s amended third-party complaint that such directions were given. Our courts have affirmed summary judgments when the plaintiff/appellant makes a pivotal admission that goes to the heart of the case. See, e.g., Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997); Bushong v. Carman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). The same is true latiere of Wilcox’s admission that he failed to direct the Auctioneers to halt the sale. We next address Wilcox’s argument that the circuit court erred in granting summary judgment on the indemnity claim. The basis for indemnity where, as here, there is no express indemnity contract is liability based upon an implied or quasi-contract. Larson Mach., Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Wilcox argues that he is entitled to proceed on his indemnity claim without a written agreement because he is a faultless principal subjected to liability by reason of the faulty conduct of his agent. See Elk Corp. of Ark. v. Builders Tramp., Inc., 862 F.2d 663 (8th Cir. 1988). In that case, the Eighth Circuit determined that the courts have applied the doctrine of indemnity in two situations where no express contract was applicable: (1) imputed or vicarious liability and (2) product liability. Id. at 666-67. However, Wilcox’s claim cannot arise by operation of law under either of these theories. First, the circuit court noted that this is not a case involving vicarious liability. Wilcox, despite his argument that he would not be facing suit had the Auctioneers not mishandled the sale, is not being sued by the buyer Sholl-mier for the wrongful actions of the Auctioneers. Instead, Wilcox is being sued for his own failure to complete the purchase agreement for the sale of the property. Second, this obviously is not a product-liability case, Wilcox also argues that there is a special relationship with the Auctioneers by which the relationship and duty created an implied right of indemnity. We disagree. The cases Wilcox cites in support of this argument, Intents, Inc. v. Southwestern Electric Power Co., 2011 Ark. 32, 376 S.W.3d 435, and Smith v. Paragould Light & Water Commission, 303 Ark. 109, 793 S.W.2d 341 (1990), both involved statutory schemes which our supreme court found sufficient to support a right of indemnity. In the present case, Wilcox argues that the standard of care for a broker (and presumably an auctioneer selling real property) of ordinary care , creates such an implied right of indemnity. However, as pointed out earlier, Wilcox is not being sued for vicarious liability; he is being sued for failure to complete the sale. Under these facts, there is no right to indemnity in this case. For his fifth point, Wilcox argues that the circuit court erred in granting summary judgment on his promissory-estoppel claim. The court granted summary judgment on the basis that Wilcox could not pursue a promissory-estoppel claim when there was a written contract between the parties. See Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005). Wilcox does not address the circuit court’s ruling that promissory estoppel cannot be asserted when there is a written contract between the parties. Instead, Wilcox’s argument simply asserts that promissory estoppel is an alternative basis of recovery to a breach-of-contract claim and that he presented sufficient proof of the oral modification of the written contract. However, “[promissory estoppel is not to be used as a vehicle to engraft a promise on a contract that differs from the written terms of the contract.” See Mickens v. Corr. Med. Servs., Inc., 395 F.Supp.2d 748, 752-53 (E.D. Ark. 2005). That is exactly what Wilcox is attempting to do — add new promises to the auction contract. We find no error. Wilcox’s final point is that the Auctioneers breached a duty by not halting the auction |uonce they perceived collusion among the bidders. In his response to the Auctioneers’ motion for summary judgment, Wilcox argued that there was a disputed issue of whether the Auctioneers breached their duty by continuing the sale after perceiving collusion. In both its letter opinion and order granting summary judgment, the circuit court found that this issue was not material to Wilcox’s claims against the Auctioneers but that it would be dispositive on Shollmier’s claim for specific performance against Wilcox. We now know from the final judgment that the issue of collusion was impliedly resolved against Wilcox by the jury in finding that Wilcox breached the purchase agreement. Wilcox does not address the circuit court’s actual ruling. Instead, he continues the argument made below that the issue is whether the Auctioneers breached a duty to him. As authority, Wilcox cites our decision in Townsend, supra, where we adopted the standard of ordinary care for a real-estate broker. However, that standard does not show that the Auctioneers had a duty to halt the sale once any possible collusion arose. We will not address assignments of error unsupported by citation to supporting legal authority. Henry v. Mitchell, 2013 Ark. 246, 428 S.W.3d 454. Affirmed. Kinard and Brown, JJ., agree. . Shollmier is not a party to this appeal. . Arkansas Code Annotated section 17-17-■112(a) provides in part that ‘‘[a]n auctioneer may not sell the property of another at auction without a prior written contract with the seller which sets forth the terms and conditions upon which the auctioneer will sell the property.” . Section 1812.608(d) provides in pertinent part as follows: In addition to other requirements and prohibitions of this title, it is a violation of this title for any person to do any of the following: (d) Sell goods at auction before the auctioneer or auction company involved has first entered into a written contract with the owner or consignor of the goods, which contract sets forth the terms and conditions upon which the auctioneer or auction company accepts the goods for sale.... . See Edwards v. Pennino, 276 Ark. 380, 382-83, 635 S.W.2d 246, 248 (1982) (quoting 94 A.L.R.2d 468 (1964) and adopting the standard set forth by this court in Townsend v. Doss, 2 Ark. App. 195, 618 S.W.2d 173 (1981)).

DAVID M. GLOVER, Judge _JjN.W., a juvenile, was charged with rape in a delinquency petition. After a hearing on the matter, the' trial court found the allegation to be true, adjudicated N.W. delinquent, placed him on supervised probation, and ordered him to pay $685 in costs, fees, and restitution. N.W. now appeals, arguing that the trial court erred in admitting an interview of the child victim performed by the Children’s Advocacy Center and that the trial court erred in not granting his motion for dismissal. We reverse and remand. The facts of the case are as follows. A report was made to the Child Abuse Hotline on August 15, 2013, alleging that N.W. had sexually abused N.A.J., his four-year-old cousin, at some time between April and August 13, 2013. N.W. was fourteen at the time. Detective Jeff Reams of the Rogers Police Department was assigned the case on the same day the report |2was made; he learned that an interview with the Children’s Advocacy Center (CAC) had been scheduled for N.A.J. on that afternoon; and he observed the interview of N.A.J. by Erin Kraner, a forensic interviewer for CAC, from an observation room outside the interview room (but he did not interview N.A.J. in addition to the interview performed by Kraner). Kraner’s interview with N.A.J. was recorded. Reams recalled that he spoke with Kraner both before and after the interview of N.A.J., and he collected a taped copy of the interview Kraner had with N.A.J. He explained that the forensic interviewer, who is specifically trained to interview children, conducts one interview; the police can use that statement without having to interview the child again and again. Reams could not remember if he had communicated questions to Kraner to ask N.A.J., but stated it was common for him to have questions he wanted a victim to be asked. The State attempted to call N.A.J. as a witness, but she refused to cooperate during the attempts to examine her. The trial court found that, although N.A.J. was competent, she was unavailable as a witness. The State then moved to have the tape of N.A.J.’s interview introduced through Kraner’s testimony. N.W.’s counsel objected to the tape being played, arguing that it would be testimonial and would violate N.W.’s right to confront his accuser under the United States Supreme Court case of Crawford v. Washington, and that the rules of evidence did not trump the right to confront witnesses. The State responded that the information contained in the interview was not testimonial. The trial court noted counsel’s objection and allowed the State to call Kraner as a witness. RKraner explained that CAC was a child-friendly facility that provides a comprehensive service for purposes of investigation so that a child only had to be interviewed once when multiple agencies were involved. Kraner described herself as a neutral fact-finding individual who was there to ask questions and elicit reliable information. She said that the only persons who were allowed in the observation room during an interview were the investigative personnel involved in that specific case, whether it was the Arkansas State Police, DHS, other law enforcement,,, or prosecutors. Kraner stated it was common protocol that, at the end of the interview, there is a break and discussion with the investigative entities to ensure that the interview covered everything that the investigative entity wanted to be covered. She testified that the police were involved in this interview. At this point in the proceedings, the trial court viewed the videotape of the interview with N.A.J. In the interview, N.A.J. stated that N.W. had touched her all over her body; that he had touched her with his fingers while she was not wearing clothes; that N.W. had touched her chest under her clothes on her skin and that his hand stayed still; that he touched her butt with his hands and put his hand in her butt; and that he touched her “cuckoo.” According to Kraner, after N.A.J. relayed this information, she stepped out of the room to see if there were any more questions she needed to ask, and when she returned, she asked N.A.J. about N.W. touching her “cuckoo,” and N.A.J. said that he touched it one time with his hand. After the playing of the taped interview, N.W.’s counsel again objected, arguing that the tape was testimonial and that she had not had an opportunity to cross-examine N.A.J. |4The trial court found that the purpose of the CAC was to interview children in a non-leading, non-coercive, and non-testimonial way; that N.A.J.’s testimony was reliable; that there were sufficient guarantees of trustworthiness; that cross-examination would be marginal, at best; and that NA.J.’s statement was spontaneous and consistent. The trial court allowed the' taped interview to come into evidence under Rule 804(b)(7)(A) of the Arkansas Rules of Evidence. Sufficiency of the Evidence Although his sufficiency argument is N.W.’s second point on appeal, we address this issue first because double-jeopardy concerns require a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Stewart v. State, 2010 Ark. App. 323, 374 S.W.3d 811. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, or evidence that is of sufficient certainty to compel a conclusion one way or the other and pass beyond mere speculation and conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, all of the evidence, including that which may have been inadmissible, is considered in the light most favorable to the State. Id. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). “Devi ate sexual activity” is defined as “any act of sexual gratification involving the penetration, however slight, of the labia ma-jora or anus of a person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(l)(B) (Repl. 2013). |SA motion to dismiss in a bench trial is treated as a challenge to the sufficiency of the evidence. T.C. v. State, 2010 Ark. 240, 364 S.W.3d 53. The Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Id. Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides that in nonjury trials, motions for dismissal shall be made at the close of all of the evidence and state the specific .grounds therefor; if a motion to dismiss is made at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence. Failure to make sufficiency arguments in the manner prescribed constitutes a waiver of any question of sufficiency of the evidence. Ark. R. Crim. P. 33.1(c). Rule 33.1 is strictly construed; a dismissal motion must be specific enough to advise the trial court of the exact element of the crime that the State has failed to prove, and a general motion merely asserting that the State has failed to prove its case is inadequate to preserve a sufficiency issue for appeal. T.C. v. State, supra. Here, N.W.’s counsel moved for dismissal at the close of all the evidence, simply stating that there was no evidence other than the tape. This general statement does not advise the trial court of any missing element; it merely states that there is no evidence other than the tape. This general motion is not adequate to preserve a challenge to the sufficiency of the evidence. Therefore, N.W.’s challenge to the sufficiency of the evidence is not preserved for our review. Confrontation-Clause Violation N.W.’s remaining point on appeal is that the trial court erred in admitting CAC’s taped interview of N.A.J. into evidence because it was testimonial. Issues of constitutional ^interpretation are reviewed de novo. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). We find merit in this argument, and we reverse and remand on this issue. In order for hearsay statements to be admissible against a defendant at a criminal trial, two separate requirements must be met — first, an exception to the general rule prohibiting hearsay must be demonstrated, and second, the admission of the hearsay cannot violate a defendant’s Sixth Amendment right to confront witnesses against him. Seely v. State, 373 Ark. 141, 282 S.W.3d 778 (2008). The trial court in this case determined that N.A.J.’s hearsay testimony was admissible under Rule 804(b)(7)(A) of the Arkansas Rules of Evidence, which applies when the declarant is unavailable. No one contests the fact that N.A.J. was unavailable or that the trial court’s finding that the requirements of the unavailable-child exception to the rule excluding hearsay were met. The hearsay exception the trial court found applicable provides: (7) Child hearsay in criminal cases. A statement made by a child under the age of ten (10) years concerning any type of sexual offense against that child, where the Confrontation Clause of the Sixth Amendment of the United States is applicable, provided: (A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trust worthiness that the truthfulness of the child’s statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy. 1. The spontaneity of the statement. 2. The lack of time to fabricate. 3. The consistency and repetition of the statement and whether the child has recanted the statement. It4. The mental state of the child. 5. The competency of the child to testify- 6. The child’s use of terminology unexpected of a child of similar age. 7. The lack of a motive by the child to fabricate the statement. 8. The lack of bias by the child. 9. Whether it is an embarrassing event the child would not normally relate. 10. The credibility of the person testifying to the statement. 11. Suggestiveness created by leading questions. 12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to coach the child into making ■false charges. Rule 804(b)(7)’s requirement that a child’s hearsay statement “possess[ ] sufficient guarantees of trustworthiness” to be admissible as a hearsay exception when the declarant was unavailable was in line with the United States Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), until the 2004 case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Seely v. State, 373 Ark. 141, 282 S.W.3d 778 (2008). In Crawford, the Supreme Court, noting that the Sixth Amendment’s Confrontation Clause provides that, “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,” held that the focus of the Confrontation Clause was whether or not the statements were testimonial. The Crawford court held: The text of the Confrontation Clause reflects this focus [on testimonial statements]. It applies to “witnesses” against the accused — in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a ^formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. 541 U.S. at 51, 124 S.Ct. 1354. The Crawford court held that testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and when the defendant has had a prior opportunity to cross-examine. 541 U.S. at 59, 124 S.Ct. 1354. However, it did not set forth a comprehensive definition of what types of statements were “testimonial,” holding that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.” 541 U.S. at 68, 124 S.Ct. 1354. N.A.J.’s statements here do not fall within the confines of the limited definition set forth in Crawford; we therefore must look to further case law to determine what constitutes testimonial evidence. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court was faced with the question of whether statements made in the course of a 911 call were testimonial. The Davis court held that statements are nontestimo-nial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, but are testimonial when circumstances objectively indicate that there is no ongoing emergency and the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 U.S. at 822, 126 S.Ct. 2266. Seely, supra, is the only case in which our supreme court has addressed whether statements are testimonial after the Crawford decision. In that case, a three-year-old girl complained to her mother that her “booty” was hurting; when the mother pressed further, the child told her that her daddy put his fingers in her booty and dug in her booty. The child’s mother took her to Arkansas Children’s Hospital where the child was interviewed by a social worker prior to being examined by a doctor. The child told the social worker that her daddy put his finger in her booty and pointed to her front genital area. The child was found incompetent to testify at trial. The social worker testified that the main objective of her interview was to determine whether a physical exam should be conducted and, if so, what type of physical exam. On those facts, our supreme court found that not only were the child’s statements to her mother nontestimonial, so were the statements made to the social worker. The Seely case held that the question of whether the social worker was acting as a government agent turned on the primary purpose of her interview with the child — if the primary purpose was to gather evidence for potential use in a subsequent prosecution, then the social worker was acting as a government agent.. Our supreme court concluded that the primary purpose of the interview was to define the scope of the -necessary medical treatment and therefore, the statements were nontes-timonial. The present case is distinguishable from Seely. Here, there was no evidence that the interview was to determine if any medical treatment was necessary. The interview was watched by the police detective, the interviewer consulted with the detective to make sure all questions he wanted asked were asked, and the detective took a copy of the interview with | Tnhim when he left. All of these factors lead our court to conclude that N.A.J.’s statement was testimonial. The case of United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005), is also instructive. In that case, after allegations of sexual abuse arose, the victim was referred to a center for evaluation; she was interviewed by a forensic examiner; the interview was videotaped; and two copies of the interview were made, one for medical records and one for law-enforcement officials. The trial court found the child witness to be unavailable and that the statements made during the interview were testimonial — the interview was formal and involved the government, and, even though the purpose of the interview was disputed, the evidence require[d] the conclusion that the purpose was to collect information for law enforcement. First, as a matter of course, the center made one copy of the videotape of this kind of interview for use by law enforcement. Second, at trial, the prosecutor repeatedly referred to the interview as a “forensic” interview, meaning that it “pertain[ed] to, [was] connected with, or [was to be] used in courts of law.” ... That [the victim’s] statements may have also had a medical purpose does not change the fact that they were testimonial, because Crawford does not indicate, and logic does not dictate, that multipurpose statements cannot be testimonial. 400 F.3d at 556. Bordeaux makes it clear that in some situations, an interview can be both testimonial and nontestimonial — the two are not mutually exclusive. Here, there was no testimony that the interview was disseminated to anyone else except law enforcement. Accordingly, we agree with N.W.’s argument that the interview was testimonial — the primary purpose of the Ininterview was for prosecution, and the introduction of the interview into evidence did indeed violate his right to confront witnesses against him. The State contends that even if our court finds that the videotaped interview was testimonial and violated N.W.’s right to confront his accuser, its admission was harmless beyond a reasonable doubt, arguing that N.A.J. had told her mother and grandmother, at different times, that N.W. had touched her. We cannot agree with this assertion. Trial error, even involving the Confrontation Clause, is subject to a harmless-error analysis. Sparkman v. State, 91 Ark. App. 138, 208 S.W.3d 822 (2005). To conclude that a constitutional error is harmless and does not mandate a reversal, our court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id. When determining whether the denial of a party’s right to confront witnesses is harmless error, our court must consider factors such as the importance of the witness’s testimony, whether the testimony was cumulative, whether there was corroborating or contradicting evidence, and the overall strength of the State’s case. Id. NAJ.’s interview was the only evidence of rape presented by the State. NAJ.’s mother testified that she took N.A.J. to the doctor because N.A.J. said her “cuckoo” (vagina) was hurting (which was diagnosed as a bacterial infection) and that N.A.J. had told the doctor that N.W. had touched her. However, N.A.J. had not told the doctor where N.W. had touched her. N.A.J.’s grandmother testified that N.A.J. had reported to her that N.W. had touched her in an inappropriate way, but again there was no testimony as to where N.W. had touched N.A.J. Her grandmother also testified that she had never witnessed any inappropriate | ^touching. Without N.A.J.’s statement, there is not enough evidence to support the finding that N.W. raped N.A.J. We cannot say that allowing N.A.J.’s interview into evidence was harmless error. Reversed and remanded. Abramson and Harrison, JJ., agree. . Although the child in Bordeaux testified at trial, she did so via two-way closed-circuit television, which was held to violate the defendant’s right to confront witnesses, and therefore she was deemed to be unavailable for confrontation purposes.

RITA W. GRUBER, Judge |, David Lineham appeals from the circuit court’s order denying his petition to terminate a guardianship over his daughter, W.L. David argues on appeal that the circuit court clearly erred in refusing to terminate the guardianship and in allowing W.L.’s maternal grandparents to continue as guardians. We affirm the circuit court’s order. W.L. was born on March 31, 2008, to David Lineham and Sarah Hyde in Virginia. At the time, they were living with David’s parents in Mount Vernon, Virginia. In July 2009, they moved into a nearby apartment in Alexandria, Virginia. W.L. also spent a considerable amount of time with Sarah’s parents, appellees Anna and Dennis Hyde, who both lived and worked in the Washington- D.C. area but also maintained a residence on their farm in Logan County, Arkansas. The relationship between Sarah and David was tumultuous. Although there is some Igdispute regarding the reasons a guardianship was sought, David and Sarah both signed consents allowing appellees to have a guardianship over W.L. on September 25, 2009. David and Sarah permanently ended their relationship on October 31, 2009, and the order granting the guardianship was entered on December 21, 2009. Shortly thereafter, appellees moved with W.L. to their farm in Logan County, where W.L. has continued to live with them. On September 25, 2010, David married Danielle. On December 27, 2010, David filed a petition to terminate the guardianship over W.L. The circuit court held a hearing on January 25, 2012, and entered an order denying David’s petition on April 9, 2012. In its order, the court found that the guardianship continued to be necessary and that it was in the best interest of W.L. for appellees to remain as guardians. The court specifically stated that the guardianship was necessary to “maintain the normal parental responsibilities such as providing food, clothing and financial support, which [David] has not provided.” The court also found that the evidence demonstrated “a lack of a meaningful relationship” between David and W.L. or between David’s new wife Danielle and W.L. Testimony indicated that, as of the date of the hearing, David had visited W.L. in Arkansas only one time since initiation of the guardianship in 2009 and had provided no financial support for W.L. The circuit court awarded standard visitation to David. We refer to this order as the “first order.” David did not appeal from the first order denying his petition, but he immediately began exercising visitation, visiting W.L. in Arkansas on weekends and exercising his six] 3week summer visitation with W.L. in Virginia. Evidence showed that David spent money traveling to Arkansas to visit W.L. and purchasing clothes and toys for her. He did not, however, provide any direct financial support to appellees. In October 2012, Sarah and David filed competing petitions to terminate the guardianship and in December 2012, they filed competing petitions for custody in the event the court terminated the guardianship. The petitions for custody were consolidated into the guardianship. The court held a hearing in August 2013. At the time of the hearing, Sarah was living in a trailer on her parents’ farm with her new husband and their two-year-old son. David and Danielle lived in an apartment in Virginia. The court continued the guardianship, making the following specific findings: 7. This court finds from its previous ruling that David Lineham was determined to be unfit, although specific wording to that effect was not used. Sarah Hyde has not had her fitness addressed in any prior proceedings. 8. The Court places upon both biological parents a duty to put forth proof that the conditions that necessitated the guardianship had been removed. If successful, the Guardians would then have the burden of rebutting the presumption that termination is in the minor child’s best interest. 9. While the Court finds that both biological parents failed to present proof at the hearing on August 14th and 16th, 2013 as to what the conditions were at the time the guardianship was established, the Court will still examine the evidence to determine whether terminating the guardianship is in the best interest of the Ward. 10. After examination of the pleadings, documents, testimony, and all available evidence, the Court finds that Sarah Hyde is unfit and that it would not be in the Ward’s best interest to terminate the guardianship and return the Ward to Sarah Hyde. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013, which was sent to all parties by facsimile transmission. 11. After examination of the pleadings, documents, testimony, and all available 14evidence, the Court finds that David Lineham remains unfit as a parent. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013 which was sent to all parties by facsimile transmission. 12.The Ward is 5½ years old and has lived with the Guardians since she was 5 months old. The Court believes that the testimony justifies the finding that termination of the guardianship would not be in the Ward’s bests interest and that the guardianship should remain in place. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013 which was sent to all parties by facsimile transmission. The court then dismissed David’s and Sarah’s petitions to terminate, ordered both to pay child support, continued David’s standard visitation with W.L., and incorporated its attached letter opinion by reference. In its letter opinion, the court recited the applicable law and burdens of proof found in our supreme court’s opinion In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307. Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Furr v. James, 2013 Ark. App. 181, 427 S.W.3d 94. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court’s findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carries a greater weight than one involving the custody of minor children. Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002). On appeal, David argues that the circuit court’s order refusing to terminate the | .^guardianship and allowing W.L.’s maternal grandparents to continue as guardians rather than allowing him, W.L.’s father, to have custody is clearly erroneous. He specifically challenges the court’s determination that it had found him to be unfit in its first order; that he failed to present sufficient evidence that the guardianship was no longer necessary; and that appellees presented sufficient evidence to overcome the presumption that termination of the guardianship was in W.L.’s best interest. We turn first to the governing law. Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2013) provides that a guardianship may be terminated by court order if “the guardianship is no longer necessary or for the best interest of the ward.” In applying this statute, our supreme court has held that fit parents do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, are entitled to the Troxel presumption in a proceeding to terminate that guardianship. In re Guardianship of S.H., 2012 Ark. 245, ¶ 14, 409 S.W.3d 307, 316. Specifically, the court held as follows: A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child’s best interest, even after consenting to a guardianship. Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest. Id. ¶ 15, 409 S.W.3d at 316-17. In order for the presumption to apply, a parent must not have been deemed unfit. | fiDavid argues that the circuit court erred in finding that he had been found unfit in the court’s first order. Although the court stated that it had previously found David to be unfit in its first order, the court did not rely on that finding and instead applied the law set forth in In re Guardianship of S.H. as if David were a fit parent. Indeed, in its letter opinion, the court reasoned that since it had not made a fitness determination regarding Sarah in its previous order, the best way to examine the evidence in this case is to give both biological parents the Troxel presumption that by seeking to terminate the guardianship of [W.L.] that they are acting in the best interest of the child. This places upon the biological parents a duty to then put forth proof that the conditions that necessitated the guardianship have been removed. Then, if that burden of proof is met, the guardians have the burden of rebutting the presumption that termination is in the child’s best interest. Finally, if it is determined that the guardianship is no longer necessary, the court must address the issue of custody as between Sarah Hyde and David Line-ham[.] The court continued in its letter opinion, finding that neither Sarah nor David presented proof as to what the conditions were at the time the guardianship was established and thus they failed to put forth proof that the conditions necessitating the guardianship had been removed. Given the court’s examination of the evidence treating David as a fit parent and its consequent decision to allow him to put forth evidence that the guardianship was no longer necessary, its determination that it had previously found David unfit in its first order does not cause its denial of David’s petition to be clearly erroneous. David next argues that the circuit court erred in finding that he did not put forth sufficient evidence that the guardianship was no longer necessary. In support of his argument, he points to testimony of one of the guardians, Dennis, who thought the conditions necessitating the guardianship had been removed. Dennis’s testimony was made in response |7to whether he thought his daughter, Sarah, was ready to parent W.L. Dennis did not oppose terminating the guardianship if Sarah were to be awarded custody. But he made it clear that he had concerns with David and thought that the guardianship was still necessary with regard to David. Anna testified similarly. Although there was no testimony regarding precisely what conditions necessitated the guardianship, the petition for guardianship stated -with regard to David that “the father of the minor child does not provide support or income to the mother” and that the mother was without suitable income to support herself or the child. The petition also stated that the child did not have regular medical care or a “consistent and stable home, nourishment, and maintenance.” David testified that he could provide and was providing medical insurance and that his income was sufficient to support W.L. But the court noted that, in spite of his income, David was not providing and had never provided any direct financial support to the guardians for W.L. Despite appel-lees’ request that he help them with some of W.L.’s medical bills, David provided no funds at all. David argues that no court order required him to pay child support, apparently indicating the court was wrong to consider his failure to support W.L. in' its decision. The law in Arkansas has long been that a parent has a legal duty to support his child, regardless of the existence of a support order. Fonken v. Fonken, 334 Ark. 637, 642, 976 S.W.2d 952, 954 (1998); see also McGee v. McGee, 100 Ark. App. 1, 6, 262 S.W.3d 622, 626 (2007) (stating that child support is an obligation owed to the child and, even in the absence of a court order requiring a parent, to support his or her minor child, a parent continues to have a legal and moral duty to do so). We hold that the circuit court’s finding |Ron the issue of the continuing necessity for the guardianship is not clearly erroneous. In spite of the circuit court’s failure to find that the parties put forth sufficient evidence that the guardianship was no longer necessary, the court still examined the evidence to determine whether terminating the guardianship was in W.L.’s best interest. David argues that the court’s finding that termination of the guardianship was not in W.L.’s best interest was clearly erroneous. In examining best interest, the court recognized that David had exercised his visitation during the year and a half before the hearing and that he had provided clothing and toys to W.L. The court also noted that he had married and that he was currently earning at least $5,000 per month. But the court was troubled by David’s seeming inability to communicate or interact favorably with Sarah and W.L.’s guardians. The court pointed to testimony that when David attended W.L.’s kindergarten graduation, he and his mother refused to sit in seats with the guardians and Sarah and chose to remain in the back of the room. The court also noted that David’s wife, Danielle, admitted to calling DHS on several occasions to make reports that were later determined to be unsubstantiated. Danielle also admitted to alerting authorities that Dennis was harboring a fugitive (Sarah) and making an anonymous call to Dennis’s employer relaying the same information. Evidence at trial demonstrated that David blocked phone calls from Sarah and appel-lees when W.L. was in his custody. The court was troubled by another incident in which David had obtained medical care for W.L. while she was in his custody but he refused to respond to repeated requests from appellees to provide the medical records for W.L.’s medical file. He gave no reason for his refusal other than that he simply had not responded. Finally, the court noted |flthat there was a distinct difference in the attitude of David and the other parties while testifying. David seemed disinterested in anything Sarah had to say, and appellees testified that David was dismissive of them and would not communicate with them concerning issues affecting W.L. Finally, the court was troubled by an incident over Christmas visitation in which David lied to appellees regarding whether he was driving or flying with W.L. to Virginia. Because of bad weather, David drove with W.L. to Virginia, but he told W.L. to lie to appellees about it. Despite appellees’ repeated phone calls, David refused to accept or return any phone calls from them for several days during this time. Although David denied these accusations, the court found Dennis’s testimony more credible. The court also recognized that W.L. was five-and-one-half years old and had lived with appellees since she was five months old. The court found that it was not in W.L.’s best interest to terminate the guardianship. Credibility of the witnesses is a matter for the circuit court and, in cases involving children, we afford even more deference to the trial court’s findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carry a greater weight than one involving the custody of minor children. Ford, 347 Ark. at 491, 65 S.W.3d at 436. Having reviewing the record, we hold that the circuit court’s decision was not clearly erroneous. Affirmed. Kinard and Brown, JJ., agree. . After the hearing but before the court entered its order, Sarah filed a motion to intervene, which the circuit court denied. . See Troxel v. Granville, 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (recognizing presumption that a fit parent acts in the best interest of his or her child).

M. MICHAEL KINARD; Judge | jJoBeth Ferguson appeals from the revocation of her suspended imposition of sentence and probation, which were previously ordered following her guilty pleas- to charges of possession of drug paraphernalia and possession of a controlled substance. She challenges the sufficiency of the evidence to support the trial court’s findings that-she inexcusably violated the conditions of her suspension and probation. We affirm. Appellant pled guilty in August 2014 to felony charges of possession of drug paraphernalia and possession of a controlled substance (methamphetamine). She was fined $1000 and ordered to pay the fine and various fees and costs totaling an additional $875 in monthly installments of $50 beginning in September 2014. Imposition of any-sentence to imprisonment for the paraphernalia count was suspended for five years on various conditions, including that she pay the ordered fine, costs,-and fees. For the methamphetamine count, she was placed on supervised probation for five years subject to the same terms regarding |2payment of the fine, costs, and fees, and the additional requirement that she cooperate with and report as directed to a probation officer. In October 2014, the State filed a petition to revoke appellant’s suspension and probation alleging, inter alia, that she had failed to make any payments toward the ordered. amounts or to report to or otherwise contact her probation officer as directed. After a hearing, the .trial court' found that appellant had violated both of these conditions,' and it revoked appellant’s suspension and probation.* She1 was sentenced to four years in the Arkansas Department of Correction for the methamphetamine conviction; imposition of any sentence to imprisonment for the paraphernalia conviction was suspended for a period of five years. In order to revoke a suspension or probation, the circuit court must find by a preponderance of the evidence-that the defendant inexcusably failed to comply with a condition of that suspension or probation. Ark;Code Ann. § 16-93-308(d) (Supp. 2015). ■ The burden of proving that the defendant violated the terms of her suspension or probation is on the State. Trotter v. State, 2015 Ark. App. 408, 465 S.W.3d 860. Only one violation need be shown in order to justify revocation. Id. When the basis for revocation is the failure to make payments as ordered, it is the State’s burden to prove that such failure to pay was inexcusable. Suggs v. State, 2015 Ark. App. 10, 2015 WL 222595. Once the State introduces evidence of nonpayment, however, the burden of production shifts to the defendant to go forward with evidence of a reasonable excuse for failing to make the payments. Peals v. State, 2015 ,Ark. App. 1, 453 S.W.3d 151. Nevertheless, the State shoulders the ultimate burden of proving that the failure to- pay was inexcusable. Stillwell v. State, 2010 Ark. App. 546, 2010 WL 2612661. laOn appeal, we will not reverse the trial court’s decision to revoke unless it is clearly erroneous, or clearly against the preponderance of the evidence. Trotter, supra. This court defers to the superior position of the trial court to determine questions of credibility and the weight to be given the evidence. Dotson v. State, 2014 Ark.App. 456. ■ Here, the State presented testimony from Ms. Amy Peyton, collector of fines and costs for the Crittenden County Sheriffs Department. She testified that appellant was assessed a $1000 fine and $875 in costs associated with her two guilty pleas. Ms. Peyton further stated that appellant had been ordered to pay the fine and costs at the rate of $50 per month beginning in September 2014. She testified that, as of the January 9, 2015, hearing on the petition to revoke, appellant had made no payments and had not contacted Ms. Peyton’s office. The State also presented testimony from Ms. Jakirby Evans, appellant’s probation officer. Ms. Evans stated that appellant failed to report as directed on Sep-temb'er 2, 9, and 22. While appellant claimed that she had no transportation to the meetings, Ms. Evans testified that a free, public-transportation bus system was available to take appellant to and from the probation office. Ms. Evans further.testified that' appellant owed $70 in supervision fees but had made no payments toward that obligation. Appellant testified in. her own defense. She admitted that she had not reported to her probation officer or made any payments on her fine and fees. She sought to excuse her. failure to report on a lack of transportation from her home in Memphis, Tennessee, to the probation office in West Memphis, Arkansas. However, she admitted that she knew that the public bus ran from Memphis to West Memphis and stated; “I don’t have an excuse for why 1J wouldn’t ride the bus.” Regarding the failure to make any payments on her fine and fees, appellant claimed that she was unemployed and had been incarcerated in Memphis on other charges for much of the time between her August 2014 guilty pleas and mid-November 2014. However, she admitted that, at the time of her pleas, she had a standing offer to go to work for her sister but that, she never called her sister to make the final arrangements. Appellant further admitted that she had received $25,000 in life-insurance proceeds in the spring of 2014, that she put $14,000 of those funds into hér bank accounts, and that she did not use that money to pay.her fine or fees. While appellant stated that, at some point after her guilty pleas, those accounts had been “frozen” by the bank, she had no paperwork or other information to corroborate her statements. Without objection, the court had its--bailiff contact authorities in Memphis to verify whether appellant had been incarcerated there and, if so, for how long. After doing so, the bailiff reported on the record, again without-objection, that appellant-had actually-spent less than two weeks in jail in Memphis, from early to mid-November. Appellant contends that the trial court’s findings that she inexcusably violated the conditions of her probation and suspension are not supported by the evidence. We cannot agree. Appellant admitted that she did not comply with the conditions of her release. She had access to $14,000 at the time that she was placed on probation and suspension, .but she did not use the funds to make any payments toward her obligations. She also had a certain employment opportunity but did not take advantage of it. Moreover, the court had evidence that appellant .substantially overstated the amount of time that she was incarcerated [fin Memphis, and appellant offered nothing to support her self-serving testimony that her bank accounts had been frozen. "While the State retained the ultimate burden of showing that appellant’s violations were inexcusable, it is also true that the court was not required to believe appellant’s testimony. Dotson v. State, 2014 Ark.App. 456. From our review of the record, and deferring to the trial court’s superior position to determine witness credibility, we cannot conclude that the court clearly erred in finding that appellant inexcusably failed to make her court-ordered payments. Under these circumstances, we need not discuss the other violation found by the trial court. Affirmed. Harrison and Hoofman, JJ., agree.

BRÁNDON J. HARRISON, Judge 11 Tony, R. Williams appeals a December 2014 Lonoke County Circuit Court order awarding his ex-wife, Cheryl Williams Arnold, $44,186 against him. We affirm. I. Background The parties were divoreed in 2007- by a decree awarding Arnold 32.5% of Williams’s military retirement. The pertinent part of the divorce decree (paragraph i) states: The Defendant [Williams] is - retired from the United States military after having been in the military for twenty years. The , parties were married for thirteen of the said years that Defendant was in the military. The parties agree and stipulate that the Plaintiff [Arnold] is entitled to permanent receipt of said formula pursuant to the military retirement, pay.requirements for said retirement benefits. The Plaintiff shall be and is hereby awarded 13/20ths (65%)-of fifty percent of the Defendant’s military retirement which equates to 32.5% of the Defendant’s retirement income. The Defendant’ and the Plaintiff shall cooperate together so as to' ensure that the Plaintiff receives the proper amount directly from the military payment center. [aIt is undisputed that Arnold never received the 32.5% of the military-retirement benefits provided for in the parties’ divorce decree. She did not receive her portion of the retirement benefits directly from the government, nor did she receive her portion from Williams. In 2014, almost seven years after the divorce decree was entered, Arnold filed a motion for contempt. She alleged that Williams had lied to her, leading her to believe that she wás not entitled to any retirement money because she had remarried. Arnold also asked the court to hold Williams in contempt because, for seven years, he had failed to pay any of the retirement money owed to her and had not cooperated to ensure that she be paid the proper amount directly from the military payment center, as the divorce decree required. Williams asserted laches, unclean hands, and estoppel. II. Contempt Hearing The circuit court held a hearing on Arnold’s contempt motion where the parties held markedly different views on what had happened over the past seven years regarding Arnold’s attempts to get the retirement money.. Arnold testified that she had spoken with Williams on the phone “a couple of times” about getting the retirement payments and that Williams told her, ‘Well, you went out and remarried. You’re not eligible for anything.” Arnold also told the court that she went to the Little Rock Air Force Base several times from 2008 to 2011 but received no answers as to why she was not receiving her portion of the retirement benefits. Arnold explained that in 2014 she. was at the VA Medical Center, ran into another veteran, and determined that she was eligible to receive the retirement benefits. Plaintiffs Exhibit No. 2 is a June 2014 | Jetter from the Defense Finance and Accounting Service (DFAS) stating that it had received Arnold’s application for payment of a portion of the retirement pay of Tony Williams, but that the application could not be approved because Arnold had not submitted a marriage certificate showing that she was married to her former spouse- for at least ten years. On cross-examination, Arnold admitted that she had nothing in writing to show that she had requested Williams’s cooperation in getting the retirement benefits. On further redirect examination, Arnold said that she sent a certified letter to Williams in 2014 before filing her contempt motion to try “to avoid this expense and hassle -of having to come to court” and that Williams never responded to the certified letter, Williams testified that he had been getting the entire retirement amount (more than $130,000) since the divorce, that he knew Arnold had not received any of the retirement benefits, that he never sent any money to Arnold, and that he used her part of the retirement money to live on ■since he was on a “fixed budget.” He explained to the court that he had contacted the retirement center at Fort Hood and they had told him that “it was up to her and her attorney to get it started))]” Williams denied telling Arnold that she was not entitled to retirement benefits because she had remarried. Toward the end of the hearing, the parties and the court started to’discuss the dollar amount of the retirement benefits that were owed to Arnold. Williams told the circuit court: At one point, I had talked to the legal office at — like, within 30 days or so of the divorce, and the legal office at Fort Hood told me there is no way to figure this up, DFAS has to do it, for me to talk to the retirement section. That’s when I talked to them. They told me that I- have nothing to do with it. Her and her- attorney do- all the paperwork and it’s up to them. - : RWhen questioned by his attorney, Williams testified that he and Arnold had brief contact over the phone right after the divorce and that Arnold had hung up on him. According to Williams, he never received any correspondence or documentation from Arnold during -the past seven years asking him to help her . get the retirement benefits. Williams stated that he and Arnold “don’t communicate very well” and “when she is not contacting me, I’m like, Okay. Everything must be, fine with ■her.” Williams stated that .it would be a hardship on him to- repay the retirement benefits he received because he lives on a limited income based on his military retirement and disability and he could not go try to earn extra money elsewhere. At the close of the testimony, the circuit court stated that it was “particularly interested” in hearing “why, Mr. Williams shouldn’t be held in contempt of court for knowingly receiving -the ■ entire retire ment.” Williams’s attorney responded in part that the decree said “cooperation” and said, “Your Honor, we affirmatively pled laches. We ■ affirmatively pled unclean hands. She could have done it herself at any point during this entire seven years. The Internet is a great resource for information. DFAS is available. She'had an attorney in the divorce case.” He also argued that the divorce decree did not state “any affirmative duty” to. make sure that Arnold got her share. III. Court’s Ruling In its oral ruling, the court stated that it was “incredulous” at Williams’s.testimony that .it was going to be a hardship if he had to .repay the. portion: of the retirement benefits to Arnold that he had received for the past seven years because Williams was “knowingly receiving 100 percent of the retirement.” The court reasoned that Arnold had a vested ^property right, that Williams was in contempt of court, that there was “no ambiguity” that Williams “made no effort, whatsoever until the mechanism to be established for her to receive it directly to .remit any portion of that to her[.]” The court entered a series of three written orders crystallizing its oral ruling. The first order was entered on 15 September 2014. In it, the -court wrote that Williams was “in willful contempt for- his failure to ensure that [Arnold] received 32.5% of his military retirement as agreed and ordered in the Divorce Decree.” The order also stated. “The Court is deferring a decision for 45 days to allow time for DFAS to provide the Court with the exact amount of retirement, received by the Defendant from July 10.2007 until the present.” The court entered the second order on 5 December 2014 and found that Williams had received $134,044 in retirement benefits since the divorce, so Arnold was entitled to. $43,564 as her 32.5% share of the benefits. The second court order contemplated a third court order (the “supplemental order”). The forthcoming supplemental order would allow, Williams to have a “credit offset in the amount of the taxes that would have been paid” had Arnold “received her share of retirement as awarded in the Decree.” Fifteen days later, on December 30, the court entered the supplemental order and reduced the dollar amount Williams owed Arnold to a judgment' amount. The court also Issued an amortization schedule and ordered Williams to make monthly payments until his debt to Arnold was satisfied. Williams filed a timely notice of appeal from the supplemental order. IfilV. Contempt Williams argues that the circuit court wrongly interpreted the parties’ divorce decree and that the court erred in holding him in contempt. Williams asserts • that “the Decree only stated there was cooperation required between the parties” and that “payments for Appellee are specifically contemplated to come from the military pay center only and are not otherwise directed to come, from Appellant in the absence of payment from the military pay center.” . For reasons we will explain below, we. disagree with Williams’s arguments. ■ . . A. .The Law- We review divorce cases de novo on the record and do not reverse a circuit -court’s findings of-fact unless they are clearly erroneous. Lamb v. Rodriguez, 2015 Ark. App. 248, 2015 WL 1756966. Findings of fact made by. the-circuit court in a divorce case will be reviewed by this court in the light most favorable to the appellee, and we will defer to the superior position of the circuit court to judge the credibility of witnesses. Id. But a circuit court’s conclusion on a. question of law is given no deference on appeal. Id. When interpreting a circuit court order, we look to the pleadings, “the language in which the order is couched,” and whether the evidence supports the ruling. Allen v. Ark Dep’t of Human Servs., 2010 Ark. App. 608, at 9, 377 S.W3d 491, 496-97. A stipulation that is incorporated into a-court order is enforceable by contempt proceedings. See Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 666 F.Supp. 159 (E.D. Ark. 1987). Contempt is divided into criminal contempt and civil contempt. Ward v. Ward, 2014 Ark. App. 261, 434 S.W.3d 923. Criminal contempt preserves the power of the court, 17vindicates its dignity, and punishes those who disobey its orders. Id. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. To establish contempt, there must be willful disobedience of a valid order of a court. Holifield v. Mullenax Fin. & Tax Advisory Grp., Inc., 2009 Ark. App. 280, 307 S.W.3d 608. Contempt is a matter between the judge and the litigant, not between two opposing litigants. Id, Before a person can be held in contempt for violating the court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id. Williams was held in- civil contempt by the circuit court. We therefore review whether the circuit court’s contempt finding is clearly against the- preponderance of the evidence. Ward, supra. B. Our Discussion To analyze whether the court’s contempt finding is clearly, against the preponderance of the evidence, we start with the court’s order. Is 'it'definite in its terms, clear as to what duties it imposes, and express in its commands regarding Arnold receiving her portion of the retirement benefits? Here, the court order incorporated the parties’ . stipulation that they would “cooperate together so as to ensure that [Arnold] receives the proper amount directly from the military payment center.” Contrary to Williams’s assertion, the language in the court, order does not only state “cooperation.” It also has the language “so as- to ensure.” An Oxford English Dictionary definition of “to ensure” is: “[t]o make (a thing) sure to or for a person;, to secure.” 5 Oxford English Dictionary 284 (2d ed, 1989). We conclude, that the court order was express, clear, and definite enough in its requirements that both parties, ^including Williams, were to help secure and make certain Arnold received her portion of the retirement benefits. • Williams is correct that Arnold did not seem to comply with the statutory process for receiving her portion of Williams’s military-retirement benefits directly from the military payment center. The Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (2012), establishes a procedure for an ex-spouse to receive his or her portion of military-retirement benefits directly from the federal government. Arnold did not submit a completed application to receive her portion of the retirement benefits directly from the government until after she had determined she was eligible for them after speaking to another veteran. But what is also undisputed is that Williams was already retired when the parties divorced and that he kept, and spent, all the retirement bene fits he received for seven years until he was chastised in court. And nothing in the record shows that Williams, sought legal advice from counsel or asked the court what to do about the bureaucratic red tape. We hold that the circuit court did not err in holding Williams in contempt,-because, on this record, it was not clearly against the preponderance of the evidence that Williams willfully disobeyed a valid court order that he “cooperate together so as to ensure” Arnold received her portion of the retirement benefits. While the divorce decree contemplated Arnold receiving “the proper amount directly from the military payment center,” this phrase does not negate that Williams’s obligation to. help “ensure” Arnold received the proper amount of his retirement benefits. Nothing in the decree required Arnold to collect her share of the benefits directly from the government; it just assumed that she probably would. Nor does the divorce decree prohibit the court from ordering Williams to repay Arnold for 19benefits he knowingly kept and spent. The divorce decree stated that Arnold was entitled to her 32.5% share of Williams’s military retirement, and the circuit court could properly enforce its decree to ensure that it was delivered to her. See Lewis v. Lewis, 87 Ark. App. 30, 185 S.W.3d 621 (2004). In this case, after weighing all the evidence, the circuit court concluded that Williams “knowingly received [Arnold’s] part of the retirement and expended [the] same.” We cannot say that this, finding is clearly against the preponderance of the evidence. V. Laches Williams argues next that the circuit court erred when it did not apply “the doctrine of laches to the payment of military retirement benefits dating back to the entry of the final divorce decree.” Williams raised laches as an affirmative defense, and the circuit court ruled that laches did not apply given the testimony. The doctrine óf laches is based on equitable principles that consider whether one party has detrimentally relied on another party’s conduct. Ark. Cnty. v. Desha Cnty., 351 Ark. 387, 392, 94 S.W.3d 888, 891 (2003). The doctrine can apply when the party against whom laches is raised (1)' knew of his rights and the opportunity to assert them, (2) delayed in doing so, (3) because of the delay an adverse party has good reason to believe the rights are worthless or have been abandoned, and (4) given a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Id. A party asserting laches must show that he or she was prejudiced from the adverse party’s delay. Id. We hold that the circuit court’s decision to reject laches was not clearly erroneous. Here, Williams must have shown a change of conditions that would have made Arnold’s |1flassertion of her rights under the divorce decree unjust. See id.; see also Jaramillo v. Adams, 100 Ark. App. 335, 342, 268 S.W.3d 351, 357 (2007) (When an affirmative defense is raised, the defendant has the burden of proof.). Arnold’s delay, by itself, is not enough. See Higgins v. Higgins, 2010 Ark. App. 71, 374 S.W.3d 56. This record supports the conclusion that Williams did not rely, to his detriment, on Arnold’s delay or that it would be unjust to order him to pay her the benefits that he ’ kept and spent. Williams was retired when the parties divorced; he was already receiving a fixed retirement income. Arnold testified that Williams lied to her about whether she could receive the benefits after she remarried. Williams admitted that he knew Arnold was supposed to get a portion of the benefits he received, did nothing to help her get the money, and spent the portion of retirement benefits that belonged to her. Given our deference to the circuit court as fact-finder and its superior ability to judge the witnesses’ credibility, we find no error in the court’s laches decision. VI. Conclusion The circuit court’s decision is affirmed in all respects. ■ Affirmed. Virden and Vaught, JJ., agree.

- BART F. VIRDEN, Judge | Appellee RAM Outdoor Advertising (RAM) received a conditional-use permit from the City of Fort Smith'-to convert an existing billboard along Interstate Highway 540 from a static display to a digital display. RAM then applied for a permit from appellant;'the'Arkansas State Highway & Transportation Department (the Department or AHTD), to convert the sign to an electronic message device (EMD). The Department denied the application, and RAM requested an administrative hearing before the Arkansas State Highway Commission (the agency). The hearing officer upheld the Department’s decision, and RAM appealed to the Sebastian County Circuit Court. The. circuit, court reversed the agency’s decision, and the Department has appealed to this court. We reverse the circuit court and affirm the agency’s decision. 1⅞1. Overview The 1965 Federal Highway Beautification Act (Federal Act) provides for the control of billboards in an effort to maintain natural beauty along American 'interstate and primary highway systems. 23 U.S.C. § 131 et seq. The federal law requires the states to provide “effective control” along interstate and primary highway systems as a condition of receiving all of each state’s federal highway funds, or else the United States Secretary of Transportation will withhold ten percent of those funds. 23 U.S.C. § 131(b). The Arkansas Highway Beautification Act, codified at Ark.Code Ann. § 27-74-101 et seq., was enacted by Act 640 of 1967 to further the goals of the Federal Act and ensure continued funding for roads. Ark. State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). Arkansas Code Annotated sections 27-74-203(a) and -211(b) (Repl. 2010) impose a duty on the Arkansas State Highway Commission to regulate the erection and maintenance of outdoor advertising devices and to adopt and promulgate regulations governing the issuance of permits for erecting outdoor advertising devices. The agency has promulgated and adopted Regulations for the Control of Outdoor Advertising on Arkansas Highways. The General Assembly has declared that the erection and maintenance of outdoor advertising devices shall be controlled in accordance with the terms of this chapter and regulations promulgated pursuant thereto, in order to protect the public interest; promote the public health, safety, and welfare; • to preserve natural beauty; and to promote reasonable, orderly, and effective display of outdoor advertising in Arkansas. Ark. Code Ann. § 27-74-201(a) (Repl. 2010). 13Arkansas Code Annotated section 27-74-204(a) (Repl. 2010) provides that nothing contained in this chapter shall prohibit the erection and maintenance of outdoor advertising signs, displays, and devices consistent with customary use within 660 feet of the-nearest edge of the right-of-way of interstate, primary, and other state highways designated by the commission (1) within those areas which are zoned industrial or commercial under authority of the laws of this state, or (2) within those un-zoned commercial or industrial areas which may be determined by agreement between the commission and the United States Secretary of Transportation. As set forth in Appendix 3 section (E) of the agency’s regulations, the State of Arkansas and local political subdivisions shall have full, authority under their own zoning laws to zone areas for commercial or industrial purposes and that action in this regard -will be accepted for the purposes of this agreement. The regulations define “commercial or industrial activities” as those activities generally recognized as commercial or industrial by public zoning authorities in Arkansas, except that transient or temporary activities and activities not visible from the main traveled way shall not be considered commercial or industrial. 001-00-005-7 Ark.Code R. 3 § 1(F)(3) & (4) (Weil 2008). Section 7(B)(8) of the revised regulations for EMDs provides that a sigh owner may modify existing, legal, conforming structures to an EMD only after filing an application and receiving approval by the Department. RAM applied for such a permit, and the Department denied the application because (1) the sign site is hot located in a commercial/industrial area; (2) the property was zoned industrial, and, although three billboards were built over thirty years ago, there has been no industrial development of the property; (3) the property is a | ¿forested tract of land located in a floodplain, where there has been no development, and no development is likely to occur; and (4) the Sebastian County Assessor’s Office lists the landowner as “Fort Smith Riverfront/Jack White,” but the application does hot have a landowner’s permission‘"statement. ■ ■ • Following'the Department’s denial of its application, RAM requested an administrative hearing before the Arkansas" State Highway Commission, which appointed a hearing officer. II. Administrative Hearing Craig Roberts, RAM’s managing partner, testified that RAM’s proposed sign site is in an- area that the City of Fort Smith has zoned- Industrial Light. Roberts stated that he had observed ATV (all-terrain vehicle) activity on the land — primarily, on weekends — as recently as a few months prior. He stated that there was also a front-end loader parked at the site and that he had seen-the excavator loading dirt for construction projects. Roberts said that the front-end loader moved dirt eight or nine times out of ten when it was not raining. • Brandy Campbell, beautification coordinator with the Department, testified that he recommended that RAM’s application be denied because the sign was non-conforming, meaning that it would not qualify for a new permit in its present state. He testified that when "there is doubt about the legitimacy of zoning by the city, the Department uses'áñ unzoned latest to determine whether the zoning is consistent with the activity occurring there. Campbell, who described the proposed site as “a forested area,” testified that there was absolutely no industrial activity ■ that' one could observe from Interstate 540 and that the nearest commercial activity was 1.3 miles south of the site. Campbell also testified that he had spoken with the oper ator of the front-end loader and was told that there was no on-site office. Jeff Ingram,, an administrator at the Department and head of the beautification section, testified that the purpose of the Beautification Act is to limit signs to commercial or industrial areas. He said that, applying the unzoned test, there was no industrial development within 600 feet of the proposed site and no infrastructure. Ingram stated .that there were no recognizable structures that would lead one to conclude that there was a dirt pit or a mining operation on the property as one is traveling on Interstate -540. He testified that the extent of the dirt-pit operation was one man with a front-end loader who “occasionally” got phone calls and loaded a dump truck. He described the site, which he clarified is in a floodway, as “nothing but vacant land growing up in trees and weeds.” Ingram stated that there was a ten-year history of no development and that no development was likely, to occur over the next ten years. Ingram further testified that the city had a right to zone the property as industrial but, for purposes of the Beautification Act, it did not meet the expectations of the Federal Highway Administration. At the conclusion, of the hearing, the healing officer upheld the Department’s decision. The hearing officer found | n(l) that RAM’s permit application did not comply with regulations for EMDs; (2) that the Department was not bound by the zoning classifications or decisions of municipalities; . (3) that the activity within the zoned area did not meet the definition of “industrial” activity set forth in the regulations; and (4)that the regulations have been deemed constitutional by the Arkansas Supreme Court and do not impermissi-bly restrict certain speech. RAM then appealed to the circuit court, which reversed the agency’s decision. The Department brings this appeal to our court. III. Argument RAM, as. the challenging party, argues that the Department did not give due deference to the City of Fort Smith’s zoning decision and that there was no substantial evidence that the zoning was primarily to allow billboards, as was the case in Files v. Arkansas State Highway & Transportation Department, 325 Ark. 291, 925 S.W.2d 404 (1996). According to RAM, the Department ignored the General Assembly’s liberal grant of authority to municipalities regarding construction ,of the Arkansas Highway Beautification Act. RAM further contends that the Department was unable to point to any authority for its application of an unzoned test for areas that are in fact zoned industrial or commercial, making its decision both arbitrary and capricious. [7IV.. Standard of Review Review of administrative agency decisions, by both the circuit court and the appellate courts, is limited in scope. Ark. State Highway & Transp. Dep’t v. Lamar Advantage Holding Co., 2011 Ark. 195, 381 S.W.3d 787. The standard of review to be used by both courts is whether there is substantial evidence to support the agency’s findings. Id. The appellate court’s review is directed, not -toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id. When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. Ark. Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001). The challenging party has the burden of proving an absence of substantial evidence. Id. To determine whether a decision is supported by substantial evidence, the record is reviewed to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Ark. State Racing Comm’n v. Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001). When reviewing the evidence, this court gives it its strongest probative force in favor of the agency. Id. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that 18was made. Id. If there is substantial evidence to support even one basis for denial, this court must affirm'the agency’s decision. See, e.g., Lamar, supra. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Ward, supra. We review issues of statutory interpretation de novo, however, the interpretation placed on a statute or regulation by- an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Lamar, supra. V. Discussion In Files, supra, the appellant petitioned for judicial review of the AHTD’s denial of his application for a billboard permit. The circuit court affirmed the agency’s decision, and the appellant appealed to the supreme court, which held (1) that the Department could look behind a city’s zoning ordinance to examine the motivation behind the zoning decision and (2) that the Department’s determination that land was annexed and zoned commercial for the sole purpose of erecting billboards — contrary to the policies of the federal and state laws — was supported by substantial evidence. While we agree that this case does not' involve “sham zoning” and that there was no evidence that the proposed site was zoned industrial for the sole purpose of erecting billboards, Files stands for the proposition that the Department has authority to question the validity of zoning decisions. Here, the Department questioned the validity of Fort Smith’s zoning because it did not comport with the activities occurring there. The Arkansas Highway Beautification Act is remedial in nature and must be broadly construed so as to effectuate the purpose sought to be accomplished by its enactment. Files, supra. The Files court cited with approval Alper v. Nevada, 96 Nev. 925, 621 P.2d 492 (1980), which held that an inquiry into the status of billboard areas “should not be limited to a review of the face of a zoning ordinance”; rather, the inquiry should- include “reference to actual!,] as ■ well as contemplated!,] land uses.” Files, 325 Ark. at 298, 925 S.W.2d at 408. Our supreme court agreed with the analysis of the Nevada Supreme Court and held that the AHTD appropriately examined the .propriety of Brinkley’s zoning' ordinance. Our supreme court concluded that [sjome deference must be given to the Department’s interpretation of state and federal regulations in this area. The Department’s interpretation of its authority enables it to review limited commercial'zoning decisions relating to outdoor advertising to determine validity. This fosters the purposes of the 'Highway Beautification Act and assures ‘compliance1 with federal law. The General Assembly certainly contemplated that the Departmént would regulate outdoor advertising in accordance with state and federal law. Files, 325 Ark, at 298, 925 S.W.2d at 408-09. Considering the deference this court gives, agencies in the interpretation of their regulations and, given our supreme court’s conclusion in Files, we hold that substantial evidence from the administrative hearing supports the agency’s.decision upholding the Department’s denial of RAM’s application. Moreover,. we note . that the agency agreed with "the Department’s denial of RAM’s application for a permit based, in part, on a determination that the activity in the-.zoned area was not “industrial” ^according to the regulations. RAM does not challenge this finding on appeal. While there-.is no bright-line’standard for what constitutes industrial or commercial activity, the regulations do provide what activity is not' considered “industrial” or | ^“commercial.” There was evidence from which the agency could determine that the activity at RAM’s proposed sign site was transitory or temporary in nature and that the-activity was not visible from Interstate 540. Because we hold that there was substantial evidence to support the agency’s decision; it automatically .follows that it cannot be classified as unreasonable or arbitrary, Capitol Zoning Dist. Comm’n v. Cowan, 2012 Ark. App; 619, 429 S.W.3d 267. We ’do not address RAM’s other arguments ' because substantial evidence supporting only one basis for denial 'is sufficient to • affirm. See Lamar, supra. Accordingly, we reverse the circuit court and affirm the administrative agency’s decision. , Reversed, • Harrison and Whiteaker, JJ., agree. . Counsel for the AHTD conceded at the administrative hearing that title to the property was not in dispute. . City of Fort Smith Ordinance No. (Fort Smith, Ark., Code § 27-704-4 (1976)). . See Yarbrough v. Ark. State Highway Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976). . Arkansas Code Annotated section 14-56-402 (Repl. 1998) provides that cities of the first and second class and incorporated towns shall have the power to adopt and enforce plans for the coordinated, adjusted, and harmonious development of the municipality and its'fenvirons.

Humphreys, J. This is an appeal from a decree of the Jefferson Chancery Court rendered on the 27th day of June, 1921, imposing a fine of $50 and a jail sentence of six months upon appellant for an alleged violation of an order entered in said court on the 10th day of December, 1915, under the provisions of section 6196 of Crawford So Moses’ Digest, prohibiting ap pellant from, selling intoxicating liquors in a building located, at No. 225 State street, Pine Bluff, Arkansas. A reversal is sought upon the ground that the record does not reflect that appellant had notice of the application for the order or the making thereof, or that a copy of the order was served upon him. At the time appellant filed his brief, the record reflected that a temporary injunction had been issued against him on the 10th day of December, 1915, ordering the building closed at No. 225 State Street, and prohibiting him from selling intoxicating liquors therein. But since that time the record has been perfected by certiorari so as to show that on the-r day of December, 1915, the temporary injunction was modified by the consent of appellant’s counsel in open court so as to restore the building to. appellant, but making permanent that part of the temporary decree prohibiting him from selling intoxicating liquors therein. This correction in the record eliminates the contention of appellant that he had no notice of the entry of the decree of injunction, for the violation of which he was fined and sentenced to serve a term in the jail of Jefferson County. While the record, as it stands, does not show the date in December, 1915, when the temporary injunction was made permanent, it does show that it was made permanent after the temporary decree was made. So, under the rule that every presumption will be indulged in favor of the validity of a decree, this court, must indulge the presumption that, on the same day, to-wit, on the 10th day of December, 1915, after temporary order had been entered, the parties appeared and had it modified by consent so as to restore the building to appellant, and to enjoin him from selling intoxicating liquors therein. No error appearing, the decree appealed from imposing a fine and jail sentence upon appellant for violating the order of injunction of date December 10,1915, is affirmed.

Hart, J. (after stating the facts). The deed to J. T. Souter to the land in controversy is absolute on its face. While equity will permit parol evidence to be introduced to show that the transaction was intended as a mortgage, in order to overcome the presumption of law and. show from the absolute form of the deed that the transaction was intended by the parties as a mortgage, the evidence must be clear, unequivocal and convincing. Wimberly v. Scroggin, 128 Ark. 67, and Snell v. White, 132 Ark. 349. According to these and .other decisions of this court, for the purpose of ascertaining the true intention of the parties, the court will consider all the surrounding circumstances, including the value of the land, the price paid, as well as the acts and declarations of the parties at the time the transaction was had. Tested by this rule, it can not be said that Lillie Jefferson showed by clear, unequivocal and convincing testimony that the deed to the land in controversy to J. T. Souter was intended to be treated by the parties as a mortgage. On the one hand, Lillie Jefferson testified that her husband induced J. T. Souter to pay off an indebtedness against the land and to take an absolute deed thereto as security. On the other hand, Souter denied that he made such an agreement with Scott Jefferson, and testified that it was intended that the deed should be an absolute one. He admitted, however, that he made a verbal agreement with Scott Jefferson for a resale of the land if Jefferson would pay him back the purchase money and an account for supplies which he ówed him. Souter received a deed to the land on the 20th day of January, 1912. He waited on Jefferson during the years 1912 and 1913 to carry out his contract to repurchase the land. Jefferson failed to carry out his part of the contract for the repurchase of the land, and it was then agreed that Jefferson should begin to pay rent for the land. Souter is corroborated by the testimony of the merchants who agreed to furnish Jefferson with supplies in 1914. The merchant testified that Jefferson told him that Souter .only claimed a lien for rent and would waive his landlord’s lien for supplies. The declaration .of Jefferson to the merchant was against his interest and is ad missible against Ms successors in interest and all who claim under Mm. Russell v. Webb, 96 Ark. 190, and Strickland v. Strickland, 103 Ark. 183. It is claimed that the testimony of Lillie Jefferson is corroborated by the fact that the consideration agreed to be paid for the land was grossly inadequate. Counsel point to the fact that Souter only claimed $592 and that the land was worth $1,000. Souter purchased the land in January, 1912, and the testimony showing the land to be worth $1,000 referred to the time when the present suit was brought, which was in January, 1917. It is a matter of common knowledge that lands appreciated greatly in value during the.period of time referred to, and the alleged inadequacy of price is not, under the circumstances, of any weight in determining whether the transaction was an absolute sale or not. It is true that the'testimony of Lillie Jefferson is corroborated by the attorney.who testified that he had made a tender of the amount claimed to be due by Souter, and that the latter had refused to accept the tender and execute a deed to Jefferson to the land. The testimony is in direct and irreconcilable conflict, and Lillie Jefferson failed to establish her claim by that clear, unequivocal and convincing testimony which is required under the settled law in this State. It follows that the decree must be affirmed.

Hart, J. (after stating the facts). The original complaint stated that the plaintiff was the owner of the property, and his affidavit for replevin stated that he had a special ownership by virtue of a lien in writing. The defendant interposed a demurrer to the complaint which was sustained by the court. The plaintiff then filed an amended complaint in which he stated that he had a special ownership in the property by virtue of a lien in writing. It is contended by counsel for the defendant that the amended complaint stated a new cause of action, or at least that the amended complaint was inconsistent with the original complaint. We can not ag’ree with counsel in this contention. In Climer v. Aylor, 123 Ark. 510, the court held that a complaint in replevin was defective because it was not shown by the allegations whether the plaintiff claimed under a general or special ownership. The court said that the complaint was not wholly defective, and that the defect could have been reached by a special demurrer, in which case tne plaintiff could have amended his complaint to show whether his ownership was general or special, and, if special, to set forth the facts upon which his claim of special ownership was based. In the instant case the plaintiff alleged a special ownership in the property by virtue of a lien in writing. If defendant wished the plaintiff to set forth, the facts more in detail upon which his claim of special ownership was based, he should have filed a motion to make the complaint more definite, instead of a motion to strike the amended complaint from the files. Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227. The question of whether the defendant’s motion to transfer the case to equity should have been granted is pot raised by the appeal for the reason that the defendant obtained leave to withdraw his answer from the files of the court and thereby eliminated the question from the case. The case was heard before the court sitting as a jury. There was no bill of exceptions filed, and the judgment recites that the case was heard upon the pleading’s, the obligation in writing of the defendant, and the evidence of the plaintiff. The judgment recites that this is a suit in replevin for certain specifically described personal property or the balance due under a' lien or mortgage. The judgment further recites that the plaintiff have judgment for the property which is specifically described, or the balance due under the mortgage. There being no bill of exceptions, we can only review the judgment for errors manifest upon the face of it, and in doing so can only consider the recital of facts contained in the judgment upon which it is based. Baucum v. Waters, 125 Ark. 305; Sizer v. Midland Valley R. Co., 141 Ark. 369; and Carroll County v. Poynor, 142 Ark. 546. It will be seen that the judgment recites that the replevin suit was under a mortgage of the property held by the plaintiff from the defendant. In the absence of a bill of exceptions, and in view of the recitation in the judgment that the case was heard upon the written obligation of the defendant and the evidence of the plaintiff, the presumption is that the evidence adduced at the trial sustained the finding of the circuit court and warranted the judgment rendered. The holder of a chattel mortgage may, upon the mortgagor’s default, sue at law to recover the mortgaged chattel, or for its conversion, or he may sue in equity for the foreclosure of the lien which he has by virtue of the mortgage. Thornton v. Findley, 97 Ark. 432. To reverse the judgment counsel for the defendant rely upon the case of the Southern Cotton Oil Co. v. East, 134 Ark. 404. In that case the defendant set up an answer which was exclusively cognizable in chancery, and the court held that he was entitled to have the’ issue determined by the chancery court, and for that reason the trial court erred in not' transferring the case to equity. As we have already seen, the defendant, by leave of the court, withdrew his answer from the files, and this action eliminated any alleged error in refusing to transfer to equity. Moreover, the defense interposed by the defendant' in his answer was not exclusively cognizable in equity. He could have set-off at law as well as in equity that the plaintiff was only due a certain amount under the mortgage. Our statute authorizes proof of payment of. the mortgage indebtedness or a set-off for the purpose of determining whether or not the debt has been 'discharged in full, or, in ease of partial discharge, the amount of the balance due. Jones v. Blythe, 138 Ark. 81. It follows that the judgment must be affirmed.

McCulloci-i, C. J. This appeal brings up for review proceedings before the Corporation Commission, initiated against appellant by citizens of the town of Lewisville, to require the company to construct a new passenger station at that place. Notice was given as required by statute, there was a hearing upon the testimony of witnesses and an order was made by the Commission requiring the construction of a new building as prayed for in the petition. An appeal to the Pulaski Circuit Court was prayed and granted, and a few days thereafter the statute now in force was enacted abolishing the Corporation Commission and transferring its functions, so far as related to control over public utilities, to the Railroad Commission. The old statute (Act 571, Acts of 1919) provided for an appeal from the decision of the Corporation ■Commission to the circuit court of Pulaski County, where the matter should be heard upon the record made before the Commission, and also provided for an appeal to the Supreme Court from the judgment of the circuit court, and that “in such case appeals to the Supreme Court shall be governed by the procedure, and reviewed in the manner which is now or may hereafter be prescribed by law governing appeals from chancery courts.” Secs. 27-28, Act 571, Session of 1919. The statute abolishing the Corporation Commission (Act 124, Session of 1921) provided for appeals to the circuit court of Pulaski County, thence to the Supreme Court, and that on appeal to the Supreme Court that court “shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable.” Sec. 21, Act 124. Sec. 22 of the last statute provides that “ail cases which have heretofore been appealed to the circuit courts of this State from any decision or order of the Corporation Commission and which appeals are now pending shall be heard and determined by said courts on the merits as in other cases by law made and provided.” The first controversy here between counsel relates to the question of procedure, whether this court shall, hear the cause “in the manner which is now * * * prescribed by law governing appeals from chancery ■courts,” as provided by the act of 1919, supra; or whether it shall disregard the findings of fact by the circuit court and “review all the evidence and make such findings of fact and law as it may deem just, proper and equitable,” as provided in the act of 1921, supra, for appeals from the Railroad Commission as now constituted; or whether the court shall hear the case and review merely for error, as on other appeals from judgments of circuit courts. The contention of counsel for appellee is that section 22 of the act of 1921, supra, is controlling, and that this appeal affords merely review for error as in other law cases. On the other hand, counsel for appellant contend that the procedure on the present appeal is controlled by the provision of the old statute declaring that the Supreme Court shall hear the cause according to the practice governing appeals in chancery courts, or by section 21 of the act of 1921, supra. There is another question which might raise itself, ■and that is, whether or not the Legislature has the power to change the practice in this court on appeals in law cases from a review for error to a trial de novo as in chancery cases. We do not deem it necessary to decide these questions, for, if we adopt the practice most favorable to the appellant and review the evidence do novo, as in chancery cases, we do not find that the conclusions of the Corporation Commission and of the circuit court on appeal are contrary to the preponderance of the evidence. It appears from the evidence that Lewisville is a growing town, with a population of about 2000 inhabitants, and is situated at the junction of appellant’s line of railroad and a branch line known as the “Shreveport branch;” that the present station building,' which is a combination one for both freight and passengers, is a frame building about 30 years old; that it is not of sufficient capacity for the convenience of travel, that it is unsightly and insanitary, and that it is inconveniently located in that it is too close to the main track to afford platform space between the station building and the railroad. The contention of appellant was, and is, that a building constructed according to the orders of the Corporation Commission would cost about $25,000, and that the present building could be repaired 'and additions made thereto so as to furnish adequate accommodations at an expense not exceeding $6,000. It was shown by the testimony that the building was insanitary for the reason that water stood under it for seven or eight months in the year, furnishing a breeding place for mosquitoes, but testimony was adduced by appellant tending to show that, according to reports of its engineers, this condition could and would be rectified. We do not thinlc that the testimony in the case presents such a state of facts as would justify this court in disregarding the finding of the Corporation Commission and the circuit court. If we indulge ourselves the utmost latitude in reviewing the testimony, it cannot be said that the preponderance is against the findings of the Commission and the circiut court. When it comes to the exercise of mere discretion, we do not feel authorized to substitute our judgment for that of the Corporation Commission or the circuit court unless we can discover that, according to the preponderance of the evidence, it is unwise or unjust to require the carrier to comply with the order with respect to the construction of a new building. The statutes of the State lodged that power, primarily, in the Corporation Commission, and have since transferred it to the Railroad Commission, and it was not the purpose, we conceive, of the framers of the statute in allowing an appeal to substitute the judgment of the courts, unless it appears that an error was made by the Commission in its conclusions. An attack was made on the validity of the order on the ground that the report of the Commission recites that the conclusions were reached after a personal inspection of the locality by the members of the Corporation Commission and also upon a report of the Commission’s engineer as well as upon the evidence in the case. The contention is that, the statute having given a hearing in the courts concerning the propriety of the Commission’s order, and that the hearing in the courts must be on the record made before the Commission, this provision would be nullified if the Commission be permitted to gather evidence from personal investigation or inspection. The claim is that this renders the order of the Commission void because it acquired information which could not be put into the record, and which is not avail able to the courts on review. Counsel rely upon the decision of the Supreme Court of the United States in the case of Interstate Commerce Commission v. L. & N. Ry. Co., 227 U. S. 88, where it was held that the provision in the statute creating the Interstate Commerce Commission (par. 12) which authorizes the Commission to gather information on its own initiative, was only available for use in instituting prosecutions for violations -of law and not for a hearing on the fixing of rates. The statute (Crawford & Moses’ Digest, 1639) authorizes the Corporation Commission, after filing of such petition, “to proceed to make a personal inspection of the conditions complained of and investigate the objects sought to be accomplished,” but this does not mean that evidence is to be heard which cannot be put into the record, for the provision of the statute in regard to appeals contemplates that the court shall hear the cause upon the record made before the Commission. It is true that the statute provides for an appeal to the circuit court on the record made before the Commission, and this, of course, negatives the idea that the Commission may consider matters within their personal knowledge which cannot be put into’the record, but aside from any express statutory authority it was within the power of the Commission to make a personal inspection, not to gather evidence, but to understand that which is introduced in such form as can be put into the record for consideration on appeal. That is all that it is shown was done in this case. It does not appear from the report of the Commission that it gathered any evidence not in the record, but merely that there was a personal inspection. Notwithstanding such inspection by the members of the Commission, the case is heard in review by the courts on the record made, and not by any outside matters which the Commission may have considered, and if upon that record it appears that the order was erroneous, it becomes the duty of the court to set it aside. The fact that the Commissioners have made a personal inspection may put them in a better attitude than the courts on review to comprehend the evidence adduced before them, and this affords a reason why the-order should not be overturned unless it affirmatively appears to be erroneous, yet the fact that there was an inspection does not alter the rule that in a review- by the courts the case must be heard upon the record as made before the Commission. It is also recited in the report of the Commission that there was an inspection by the engineer of the Commission.-It is contended that this invalidates the order of the Commission because the report of the engineer is not in the record. The record does not show that the engineer made a report in writing* to the Commission. The written report or opinion of the Commission merely recites that “the conditions at the town of Lewisville were inspected by the engineer of the Commission and by the members of the Commission,” The Commission had the right to consider the report of its engineer, if there was such report, as it would have been advisory in its character and not evidentiary, and the report should have been put into the record. Appellant had the right to insist that it go into the record, but, having* failed to have it done, is not in -an attitude to complain. Furthermore, appellant has had the benefit of a trial de novo in the circuit court on the record, which included all of .the testimony which it saw fit to introduce before the Commission. It is not shown that anything was omitted which is material to appellant’s case, and it has been afforded full protection of the law in -all of its rights by a trial in the circuit court where the cause was heard, not for the purpose of reviewing for errors of the Commission, but to determine the merits of the controversy. The fullest requirements of the law are thus satisfied. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287. Lastly, it is contended that it is beyond the power of the Commission to prescribe the character of the building and the material of which it should be constructed. The power to require the construction of a new station building carries with it, by implication, the power to prescribe the kind and capacity of bnilding and the material. Of course this power cannot be captiously or arbitrarily exercised. We do not find that the order of the Commission is open to that charge. Appellant merely denies the authority of the Commission to give any directions with respect to the kind of material, and in this we think that counsel is mistaken. We discover no ground for setting aside the order of the Commission, and the judgment of the circuit court will therefore be affirmed. Hart and Smith, JJ., dissent.

Humphreys, J. This suit was commenced by appellees against appellant in a magistrate’s court in Cadron Township, Faulkner County, Arkansas, to recover the sum of $181 for meat furnished by appellees to J. F. Rich, a subcontractor under appellant, which had a con tract with the Conway-Damascus Road Improvement District to construct a road from Conway to Damascus- and had given a bond under the provisions of Act No. 466 of the General Assembly of the State of Arkansas approved June 2,1911. (Gen. Acts 1911, p. 462). Under the allegations of the complaint filed before the justice of the peace it was sought to charge appellant with the debt upon two grounds: first, that appellant had bound itself by written contract with J. F. Rich, its subcontractor, to pay said indebtedness as a part of the consideration for surrendering his -contract for grading the road back to appellant; and, second, that appellant bound itself by oral agreement with appellees to pay said indebtedness upon appellees’ release of the obligation against J. F. Rich, its subcontractor. A default judgment was rendered in the magistrate’s court for said sum against appellant, from which an appeal was duly prosecuted to the circuit court, where the cause was tried de novo by the circuit court sitting as a jury by the consent of the parties. At the conclusion of the testimony the court took the case under advisement until a later date in the term, at which time, over objection and exception of appellant, the case was re-opened, the complaint amended to also charge liability against appellant for the indebtedness under the provisions of the original contract entered into between appellant and the Conway-Damascus Road Improvement District for the construction of the road, and additional evidence introduced in support of the amendment. Thereafter the court rendered a judgment in favor of appellees for the sum of $181 with six per cent, interest thereon from December 20, 1920, from which an appeal was duly prosecuted to this court. The written memorandum of agreement between appellant and its subcontractor, J. F. Rich, upon which appellees rely as fixing liability for the account upon appellant, is as follows: "Whereas, on August 3, 1920, the Oliver Construction Company and J. F. Rich, did on ter into a contract whereby the said J. F. Rich did agree to do certain work in the construction of the road being constructed by the Conway and Damascus Road District of Faulkner County, Arkansas, for the consideration set forth in said contract; and whereas, the said J. F. Rich now finds himself unable to proceed with said contract and desires to release therefrom; and whereas, certain sums are due to said J. F. Rich for said work, and said J. F. Rich is indebted to various parties for work and labor and material, services done for and furnished to J. F. Rich in and about the prosecution of said work; now in consideration of the premises the said J. F. Rich does hereby release and surrender to the Oliver Construction Company said contract and all rights thereunder, and does acknowledge full payment and settlement of all amounts due and owing to him from the Oliver Construction Company thereunder; and the Oliver Construction Company does hereby agree that it will assume and pay off all valid claims against the said J. F. Rich for work and labor and material, services and done for and furnished to said J. F. Rich in and about the prosecution. of said work. This................ day of November, 1920.” Signed by Oliver Construction Company and J. F. Rich. The clause in the original contract between appellant and the Conway-Damascus Road Improvement District under which the appellees seek to charge appellant for the meat bill is as follows: “The contractor shall pay promptly when due for work and labor done, material, machinery, appliances and supplies of every kind and nature furnished and used in and about the work contemplated in the contract; and the contractor shall file, within ten days after receiving the notice provided for in paragraph 10 of this contract, a bond as provided by section 2 of act No. 446 of the G-eneral Assembly, approved June 2, 1911. Should the contractor fail to file said bond, the board may, at its option, require the contractor to file at such time as it may direct, with it, written receipts and releases from all persons and cor porations furnishing any material, labor, machinery, or appliances in said work or any part thereof.” The evidence responsive to the issue of whether appellant became responsible' for the indebtedness under an .oral contract assuming it, is in substance, as follows: Appellant entered into a contract with the Conway-Damascus Road Improvement District to build a road from Conway to Damascus 'in Faulkner County. J. F. Rich procured a contract from appellant to grade the road. During the time he was grading the road he maintained boarding camps for his laborers, and in settling with the laborers at stated intervals deducted their board bills from their wages. The account sued upon was a balance due appellees for meat furnished by them for consumption in the boarding camps. J. F. Rich issued a check on the Conway Bank to appellees to cover the account. Before cashing same, it developed that Rich was unable to complete his contract, and he was released therefrom by appellant. ■ J. E. Erbacher, one of the appellees, testified that Rich requested the return of the check, stating that appellant would pay the amount; that he interviewed R. S. Smith, a representative of 'appellant, who agreed to pay the account, and requested an itemized statement thereof; that he returned the check, and therefore looked to appellant for the debt; that he itemized the account as per request and gave it to Smith, who agreed to take it up; that he called on Smith a week later, who then said, if anything was due J. F. Rich under the contract after paying the labor, he would apply it on the debt. Charley Jones testified, over the objection and exception of appellant, that during the time J. F. Rich was grading the road the Jones Milling Company furnished him feed and flour to the amount of $597.05 for which the Oliver Construction Company, by its president, R. B. Oliver, later executed its note payable in sixty davs after date. R. S. Smith testified that he was an agent of appellant, and as such had charge of the books and payrolls for it in connection with the construction of the road; that he deducted the board bills from the wages of the laborers on the payrolls turned over to him by J. F. Rich before paying them; that he told appellees if any money was left after paying the labor which belonged to J. F. Rich he would pay it on the meat bill; that he had that authority; that he did not agree to pay the bill, as he had no authority to do so. W. R. Emmit, vice-president and secretary of appellant, testified that he did not agree to pay the account, and that R. S. Smith had no authority beyond paying labor and material with money furnished him for that purpose; that Smith had no authority to promise to pay other accounts. Appellant insists that appellees’ claim is not within and protected by its written contract with J. F. Rich, assuming certain of his indebtedness, nor the original contract between it and the road district. ' We think the contention is correct. The contract between appellant and Rich, in specific terms, covered bills for work, labor and material only; and while the language in the original contract between appellant and the road district is extended to include supplies, the context clearly indicates that it relates to supplies which should enter into the construction of the road. We find nothing in the language or context, when given a natural construction, which would include meat furnished to a sub-contractor. Thus interpreting the meaning of the contract, it becomes unnecessary to determine whether any privity existed between the promises in the contract and appellees. Appellant also insists that it is not liable under oral contract to pay the account. The contention is that R. S. Smith was without authority to make the alleged oral agreement assuming the payment of the debt; that, if made, it was without consideration, and also within the statute of frauds. It is true that J. E. Erbacher testified that R. S. Smith was the representative of appellant, but that he did not pretend to testify as to the extent of his authority. The rule is well established that an agency cannot be presumed, but must be established by proof, and that one dealing with an agent is bound to ascertain the extent of Ids authority. Liddell v. Sahline, 55 Ark. 627; Latham v. First National Bank, 92 Ark. 315; Wilson v. Shocklee, 94 Ark. 301; Wales-Biggs Plantation v. Grooms, 132 Ark. 155; Pierce v. Fioretti, 140 Ark. 306. E. S. Smith, the book-keeper, and W. E. Emmit, vice-president and secretary of appellant, testified that the-authority conferred upon Smith was limited to the payment of accounts for labor and material entering into the construction of the rpad with money furnished him for that purpose. According to the undisputed evidence therefore, the alleged oral contract of Smith,, assuming to pay the meat bill, was made without authority, if made at all. In this view, it is unnecessary to determine whether there was a consideration for the alleged promise, or, if made, whether within the statute of frauds. The case appears to have been fully developed, and. no liability being established against appellant under the evidence, the judgment is reversed, and the cause dismissed'.

Wood, J. These appeals are from decrees rendered by R. L. Rogers, special chancellor, declaring void act No. 264 of the Acts of 1921. The title of the act is: “An Act to provide For More Efficient County Government for Pulaski County: For Two County Judges: For Separating the Offices of Sheriff and Collector; Fora County Comptroller; For a County Purchasing Agent; For Chief Deputies; For County Officers; For a Board for Approving Additional Deputies; For Fixing the Salaries of County Officers and of their Deputies; For a Court of Common Pleas; For Fixing the -Court Costs in the Circuit and Chancery Courts; and for Other Purposes.” Section 1 provides that there shall be two county judges for Pulaski County; one designated as county judge and the other probate judge. Section 2 provides that the Governor shall appoint the probate judge, who shall hold office until his successor is elected and qualified. Sections 3, 4 and 5 confer power upon the county judge, by and with the advice and consent of the grand jury, to appoint a county comptroller and a county purchasing agent. These several sections prescribe the duties and qualifications :,vspectively of the comptroller and the purchasing agent. The comptroller’s “term of office” is made concurrent with that of the county judge appointing him. He takes an oath of office and is required to furnish a -bond in the sum of $25,000 for the faithful performance of his duties. He prepares •a county budget, makes monthly reports of the county finances, expenses and obligations. He keeps a record of county property and chocks the emoluments of county and township officers, making an annual audit of the taxes of the county, and, among other things, is “to perform any service that may be required of him by the county judge or by the grand jury/’ and the county court is prohibited from considering any claim until it has first been presented to the comptroller for his approval or1 disapproval. Sec. 6 makes offices of sheriff and collector separate and distinct, and provides that at the next general election a sheriff and collector shall be elected. It provides for bonds for these respective officers, and provides that, until January 1, 1923, the sheriff shall continue to perform the duties and receive the same compensation as he is now performing and receiving as sheriff and collector. Sec. J provides for deputies for the county officers and a head clerk in the collector’s office. The chief deputy in the sheriff’s and collector’s office and the head clerk in the collector’s office to receive the same salary as is now provided by law. By § 8 the three circuit judges, the chancellor and the county judge “snail constitute a board for allowing additional deputies to the county officers and fixing their compensation,” but this board “shall not have authority to decrease the present deputies and clerical force, either in number or compensation, and the contingent expenses and allowances of the officers as now provided by law, without the concurrence of the quorum court, but they shall have authority to increase the compensation of the present force, contingent expenses and allowances of the officers as now provided by law,- they may also create additional contingent expenses and allowances fox the various officers. The. county judge shall be chairman of the board. On written petition of any county officer for an additional deputy or deputies, additional contingent expenses and allowances, the board shall have a public hearing and shall grant or refuse the petition as the public interest may ¡require. Any petition granted by said board shall be allowed and ordered paid by the county court.” Sec. 9 prescribed certain duties of the county treasurer. Sec. 10 provides that § § 1043 and 1017 of Crawford & Moses’ Digest shall not apply to Pulaski County, and that section 1042 shall not apply in so far as it requires the collector to visit the voting- places of the county to collect taxes. Sec. 11 prescribes certain duties of the county officers, except the collector, with reference to the filing of reports of the funds and emoluments collected by them and making settlements. See. 12 provides that § 10 of act 145 of the Acts of 1917, approved February 28, 1917, shall not apply to the offices of county judge, probate judge, comptroller, purchasing agent, or sheriff. Sec. 13 provides penalties for failure to comply with the provisions of the act. • Sec. 14 designates the salaries which the county officers and their deputies shall receive, and, after specifying- the amounts, it is provided that “the collector shall, in addition to his salary, be allowed to retain as part of the emoluments of his office all fees and costs for the collection of delinquent taxes, as now provided by law.” See. 15 provides “that the court costs for each action, suit or proceeding in the circuit and chancery courts which shall be paid in advance by the party instituting such action or proceeding, shall be as follows: In the circuit court, for each appeal from an inferior court, $7.50; all other actions or proceedings $10.00. In the chancery court, for each divorce suit, and each ex parte proceeding, $10.00; for all other suits or proceedings, $15.00.” Out of the clerk’s costs in the circuit and chancery courts the sum of fifty cents shall be paid into a library fund to be kept by the clerk of the chancery court, and expended by him, under the direction of the chancellor, in providing and maintaining a law library for the nse of the judges, county officers and practicing attorneys. The various courts are given the power to tax and adjust the cost between litigants in all cases. Sec. 16 creates a court of common pleas to be held quarterly by the county judge. Secs. 17 to 26, inclusive, define the jurisdiction of the court and the duties of the clerk and sheriff in connection therewith, and prescribe rules of practice governing same. Sec. 21 is as follows: ‘ ‘ The judge of the probate court shall be judge of the court of common pleas.” Sec. 27 provides for an additional contingent expense to be allowed the sheriff in case of riots, uprisings and emergencies, the application to be made to and approved by either of the judges of the board mentioned in section 8, which, upon such allowance and approval, “shall be allowed and ordered paid by the county court ou't of any available funds of the county.” Sec. 28 is as follows: “If any section, sub-section, sentence or phrase in this act shall be. held unconstitutional, such decisions shall not affect the validity of the remaining portions of the act. The Legislature hereby declares that it would have passed the remainder of said act, and each and every part thereof, irrespective of such unconstitutional part.” By the concluding section 29 the law is “made supplemental to existing laws, and shall not operate to repeal any existing laws except to the extent that it may conflict with this act, which shall take effect and be in force from and after its passage.” We will discuss the act in the order presented in the brief of learned counsel for appellants. They ask first: Is the act severable ? This court, in the case of Oliver v. Southern Trust Co., 138 Ark. 381, 386, 387, announced the general rule upon the subject by quoting at length from Cooley’s Constitutional Limitations, 6th Ed. p. 210. A portion of that quotation is as follows: “If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” See also Davis v. State, 126 Ark. 260-63; Snetzer v. Gregg, 129 Ark. 542; Skipper v. Street Imp. Dist. No. 1, 144 Ark. 38-44. The purpose of this act, as expressed in the first sentence of its title, is: “To provide for more efficient county government for Pulaski County. ’ ’ After thus declaring the purpose, the title enumerates the various particular methods by which the “more efficient government” is to be effected. The act, as shown by its title as well as the subject-matter of its various sections, was intended to be, and is, if valid, a comprehensive and complete plan of government for the county of Pulaski. So many of the sections of the act are interrelated and dependent upon each other, we are convinced that, if the Legislature had known in advance that several of the more important sections would be eliminated because of their unconstitutionality, it would not have enacted the remaining portions of the act. For some of the provisions of this act were already the law. To illustrate, this act fixes the salary of the county assessor at $4,000, and that was his salary when the act was passed. Likewise it fixes the salary of the collector a't the same as now provided by law. The act under review provides that the county judge, with the advice and consent of the grand jury, shall appoint a county comptroller. The county judge, with the advice and consent of the grand jury, had the power when this act was passed to select and appoint an auditor. We mention these simply as illustrations, and there may be others, to show that the purpose of the Legislature by the act under review was to enact a complete scheme for the government of the county, which was to stand or fall as a whole, and which could not be separated into parts. This is undoubtedly the correct conclusion if the intention of the law-makers is to be gathered alone from a consideration of the title and the subject-matter contained in the various sections of the act, and without regard to section 28. The title of the act should be paraphrased and construed as if it read: “We intend by this act to provide for more efficient government for Pulaski County in the following particulars.” Then, after' enumerating the particulars that were to be embraced in the law, it' concludes: “And for other purposes.” The concluding clause, “and for other purposes,” means that any other purposes not enumerated, but found in the body of the act, would be purposes of a like nature with those already mentioned to effectuate or complete the system of government proposed. While the title of the act is not controlling, it is proper to consider it in determining the meaning of the law-makers. School Dist. v. Howell, 124 Ark. 475: Oliver v. Southern Trust Co., supra. Counsel for appellants, in the second place, argue that “the Legislature had the power to declare the act severable,” and that it has done so by section 28, which we here again set out: “If any section, sub-section, sentence or phrase in this act shall be held unconstitutional, such decisions shall not affect the validity of the remaining portions of the act. The Legislature hereby declares that it .would have passed the remainder of said act, and each and every part thereof, irrespective of such unconstitutional part.” In several of onr cases, we have recognized the doctrine that where statutes are worded in a manner to justify it the Legislature may express its will that the provisions of such statute declared hy the court to be valid shall stand, notwithstanding other provisions in the same statute may be declared unconstitutional, and that the courts will respect and carry out such legislative declaration. Snetzer v. Gregg, supra; Sallee v. Dalton, 138 Ark. 549; Milwee v. Tribble, 139 Ark. 574. We need not decide, and do not decide, whether it was in the power of the Legislature, by the sweeping language used in section 28, to validate each and every part of this act which might constitute a valid law when standing alone and disconnected from such other parts as might be found unconstitutional. We do not believe that the Legislature intended by the language of the 28th section to declare that it would have passed each and every part of the act, even though several of its outstanding provisions were unconstitutional and stricken out. For the act, as we have seen, was intended as a whole to provide a complete and more efficient system of county government. If such strict and literal meaning is given to the language of section 28, then the Legislature “doth protest too much, methinks.” For, if such were its meaning, it has impeached itself for doing, as we have shown in certain particulars the vain and nonsensical thing of enacting or re-enacting laws already existing and covering precisely the same subject matter. Would the enactment of such laws provide for a more efficient government for Pulaski County? Certainly not. It is our duty to construe all the words of the statute so as to give them, if possible, some sensible meaning. Therefore, we conclude that the Legislature by the broad language used in § 28 meant that “if any section, sub-section, sentence or phrase” in the act were found unconstitutional and could be eliminated without destroying the integrity of the act as a whole and leav ing an effectual act for a complete and more efficient system of government for Pulaski County, then its purpose was to enact suck residual portions of tke act. This brings us to tke question: “Is any part of tke act unconstitutional?” Sec. 28 of article 7 of our Constitution is as follows : ‘ ‘ Tke county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, tke apprenticeship of minors, tke disbursement of money for county purposes, and in every other case that may be necessary to tke internal improvement and local concerns of tke respective counties. Tke county court skall be held by one judge, except in cases otherwise herein provided.” Tke exception has reference to tke quorum court. Tke first section of the act under review providing that there skall be two county judges for Pulaski County, “one to be designated county judge” and tke other “probate judge,” clearly contravenes tke above provision of the Constitution. Under the Constitution there can not be more than one county judge. Tke limitation is found in the numeral£ £ one ’ ’ in tke clause, ‘£ Tke county court shall be held by one judge,” and likewise in tke very nature of tke jurisdiction of suck court and tke functions of its presiding judge. Martin v. State, 60 Ark. 343. Tke county judge is tke governor, so to speak, in tke affairs of tke county in the matters over which the county courts are given exclusive jurisdiction. He is given supreme or exclusive original authority over the matters enumerated in the Constitution, and suck authority, in the very nature of tke case, must be exercised by one presiding and controlling genius. There is no room under tke Constitution for a division of authority and responsibility in tke office of county judge. Tke idea that there can be two county judges, either one of whom could preside over tke county court, would be incompatible with tke intention of tke framers o,f tke Constitution in conferring jurisdiction and power upon sucli court and its judge. The functions of this office in its control over taxes, roads, bridges, and other matters of local concern and internal improvement, aré indivisible and can only be exercised by one person. To avoid cross purposes and inextricable confusion in the government of the affairs of the county enumerated in article 7,. see. 28 of the Constitution, supreme or exclusive original authority is lodged in one functionary — the county judge. It may be well to note here some of the incongruities of this act that forcibly illustrate the hopeless muddle into which the government of the affairs of the county would be plunged, grounded upon the notion that they can be administered by two county judges. The act provides for two county judges and furnishes no method for determining which of these judges shall hold the court. It provides that the governor shall appoint a probate judge, but .there cannot be any vacancy in the office of the probate judge as long as there is a county judge who must, ex officio, fill it. If the Governor in advance of the next general election could appoint a probate judge, after that time only the county judge, and not the probate, could be elected, and who would have the power then to say which one of the county judges should preside over the county court and which over the probate court? The act suggests no method for determining. Sec. 16 of the act creates a court of common pleas to be held by the “county judge,” while section 21 provides that “the judge of the probate court shall be the judge of the court of common pleas.” Sec. 32 of article 7 of our Constitution provides that the General Assembly may authorize the judge of the county court to hold a court of common pleas. Sec. 21 of the act under review, conferring power upon the judge of the probate court, to perform that function, is therefore void; and if this section were stricken out and section 16 allowed to stand, and the. section creating the two county judges were also. allowed to stand, then which one of these judges would hold the court of common pleas? If alternately, when and how? Sec. 3 gives the county judge the power to appoint a county comptroller. Section 5 gives the county judge the power to appoint a purchasing agent. Section 8 makes the county judge the chairman of the county board, and section 15 gives the common pleas court power to tax and adjust cost between litigants in all cases before that court. If there were two county judges, which one of them is to perform these several and various functions? ' Who, under the act, has the power to determine which one of the county judges shall do so? The act is silent on this subject. If there could be two county judges, both must be elected, and elected as county judges at the same time, and both must have equal authority and perform the same functions under the act. Now, who in this mix-up would have the power to say which one of the county judges should exercise the several functions imposed upon the county judge in various sections of this act? Could the two county judges voluntarily settle these matters between themselves, or, in the event they should not agree concerning these things, where is the .tribunal to settle the difference between them and to have these important duties performed? The act furnishes no answer, and none could be given. It is manifest from the foregoing that it is wholly beyond the power of the Legislature to create two county judges. Another salient provision in this plan of county government is contained in section 8. That section provides that the three circuit judges, the chancellor, and the county judge shall constitute a board. To that board is given power to allow additional deputies to county officers and to. fix their compensation, and, with the concurrence of the quorum court, to decrease the number of deputies and clerical force and their compensation as well as the contingent expenses and allowances of the officers as now provided by law. To this board is given the authority, without the concurrence of the quorum court, to increase the compensation of the present officers, contingent expenses and allowances of the officers, as ■ now provided by law, and also to create additional expenses and allowances for the various officers. On written petition of any officer for additional deputies, contingent expenses and allowances, the board shkll have a public hearing and refuse or grant the petition as the public interests may require. Any petition granted by such board “shall be allowed and ordered paid by the county court.’ Sec. 14 of the act provides a complete schedule of salaries for the various officers of the county and their chief deputies and for the comptroller and the purchasing agent. Article 16, section 4, of our Constitution provides: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the - different departments of the State shall be fixed by law.” By article 19, see. 23 of our Constitution “no officer of any county shall receive directly or indirectly for salary, fees and perquisites more than $5,000 per annum and all above this sum shall be paid into the county treasury.” It will be observed that the board created by section 8, with the concurrence of the quorum court, has' the power to decrease the number as well as the compensation of the deputies of the officers, which in section 14 of the same act are designated and their annual salaries fixed at a specified amount. The board also has the power to decrease, with the concurrence of the quorum court, expenses and allowances of officers as now provided by law, and, without the concurrence of the quorum court, this board is given the power “to increase the compensation of the present force,” which would include the chief deputies, and also the contingent expenses and allowances of the various officers as now provided by law; and also may create additional contingent expenses and allowances for all the various officers. The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function, which, within the limits of the Constitution, is lodged in the supreme law-making power of the State — .the Legislature. Cain v. Woodruff County, 89 Ark. 456; Humphrey v. Sadler, 40 Ark. 100; Throop on Public Officers, § 500. The General Assembly cannot delegate this legislative power to any individual, officer, or board. We conclude, therefore, that section 8 of this act is repugnant to article 16, section 4 of our Constitution. Article 16, section 4, together with article 19, section 23, were intended by the framers of our organic law to forestall, if possible, any extortion, extravagance, or corruption on the pari of those'entrusted with the administration of public office, and to promote the general welfare by protecting the people from exorbitant taxation in order to meet the necessary burdens of government. A critical analysis of the various provisions of this act will disclose that sections 1 and 8 touch at some angle nearly all of the other provisions of the act except those embodied in the two last sections. Sections 1 and 8 are to this act as is the hub to a wheel or the foundation pillars to a building. Since these two sections fall under the condemnation of the Constitution, they must bo removed from the act, and thereby the whole fabric of the county government built up by the framers of this law necessarily falls to pieces. We need not pursue the subject further. The decrees of the special chancellor are in all things correct, and they are therefore affirmed.

Smith, 'J. This cause comes here on appeal from a judgment rendered on a verdict returned by a jury under the directions of the court. Appellee insists this judgment must be sustained if there was' any testimony legally sufficient to support it, inasmuch as both parties asked the court to give peremptory instruction in the trial below. It is true both parties asked a peremptory instruction; but, in addition thereto, appellant asked other instructions, and the court should not, therefore, have directed a verdict against him, if the testimony in his behalf, viewed in the light most favorable to him, would support a verdict in his favor. Webber v. Rodgers, 128 Ark. 25. Thus viewing the testimony, the facts may be stated as follows: The suit is upon a promissory note for the sum of $1,500, which, as executed, reads as follows: “$1,500. Pangburn, Ark., June 28, T9. “Thirty days after date, for value received, we or either of us promise to pay to the order of Bank of Pang-burn fifteen hundred no 1/100 dollars at the Bank of Pangburn, Pangburn, Arkansas, with interest at the rate of ten per cent, per annum from date until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment, and protest, and authorize extension of time without notice thereof. Interest unpaid when due to become as principal and draw the same rate of interest. Due — Demand. P. O. — City. No. 150. Witness: R. II. Dickenhorst. J. W. Pierce, J. Morrow, R. T. King, L. E. Morrow, L. King. ’ ’ J. W. Pierce, J. Morrow and R. T. King were principals, and L. E. Morrow and appellant, L. King, were sureties. Appellant King is the only signer who made defense, and this appeal involves only the question of his liability. At or about the time the note fell due King was about to change his residence on account of his health, and he went to the bank to ascertain whether the note had been paid. Finding that it had not been paid, King demanded that the cashier give all parties notice to com" to the bank and pay the note, King stating at the time that he did not want to leave any unfinished business behind. The cashier, on his own initiative, suggested that he did not care to press the makers of the note for payment, but that if he (King) would cause $400 to be paid on the note the time for the payment of the balance would be extended, and King released from further liability. Acting upon this suggestion, King saw the makers of the note and had them to pay the sum of $400 on the note. About two days later King called at the bank to see if this payment had been made. Only the assistant cashier was present in the bank at that time, but that officer, who was familiar with all the facts, promised to call the matter to the attention of the cashier. Relying on this promise, appellant King gave the matter no further attention until this suit was brought. Thereafter the following notations were made on the note by the cashier of the bank: The payment of the $400, with the date of payment, was indorsed on the back of the note. Above the date of the note there was written with pen and ink the words, “Renewal date 7-29-19.” The words, “Thirty days,” appearing in the original note, were obliterated by drawing a line through them with pen and ink and the word “Demand” written above them. The name of “L. King” — this appellant — was canceled by drawdng a line through it and immediately following the name the words “Not on renewal” were written above with pen and ink. The words “Ten days,” in the lower left-hand corner of the note, were obliterated by a line drawn through them, and the word “Demand” written above them. Appellee defends the action of the court below in directing a verdict in its favor upon the ground that the agreement to release appellant was without consideration, and says the transaction between the parties constituted, in effect, a mere renewal of the note, and, being only a renewal, King was not discharged, and, in support of this position, cites and relies upon the case of Hamiter v. State National Bank of Texarkana, 106 Ark. 157. We have here, however, the converse of the case of Hamiter v. Bank, supra. There the note was renewed under an agreement to accept the new note of Hamiter in payment of the note sued on — the original note — the agreement being made after the original note had fallen due, and without a surrender of the original note or any change therein. Here'we have an executed agreement to release King. The signature of King was obliterated. Other material alterations were evidenced by other mutilations. These mutilations were made in the execution of the agreement to release King, and to further conclusively evidence the execution of the agreement to release King there was written opposite his name the notation, “Not on renewal.” King thus ceased to be a maker of the note sued on. The agreement to release King having been fully performed, it becomes immaterial to determine whether it was enforcible prior to its performance. The agreement has been executed. It became an accomplished fact. Kerr v. Birnie, 25 Ark. 225, 234. If a contract is fully performed on both sides, the question of consideration becomes immaterial. 1 Page on Contracts, § 540; 1, Elliott on Contracts, § 202, p. 330. The note is now, in effect, a new note to which King is not a party, and he can not therefore be now sued as if he were a maker thereof. The judgment of the court below must therefore be reversed, and, as there is no dispute about the controlling facts, the cause will be dismissed.

Woon, J. This is an appeal from a judgfnent of conviction for the crime of a breach of the peace. The indictment, omitting the formal opening and conclusion, as as follows: “The grand iurv of Howard Countv, in the name and bv the authority of the State of Arkansas, accuse P. W. Schaal of the crime of breach of peace commi'ted as follows, to-wit: The said G. W. Schaal in the county and State aforesaid, on the 3rd day of March, 1921, did unlawfully make use of violent, abusive, and insulting language toward and about one E. K. .Walden and in the presence and hearing, said language in its common acceptation being calculated to arouse to anger the said E. K. Walden and cause a breach of the peace, against the peace and dignity of the State of Arkansas.” The court overruled a demurrer to the indictment and also a motion in arrest of judgment. Section 2774 of Crawford & Moses’ Digest reads in part as follows: "If any person shall make use of any profane, violent, vulgar, abusive, or insulting language toward or about any other pérson in his presence and hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine, etc.” The indictment charges that the insulting language was "toward and about E. K. Walden and in the presence and hearing.” The use of the word "the” before the word "presence,” taken in connection with the other words in the sentence just quoted, could not have meant anything else -than that the insulting language was used in the presence and hearing of E. K. Walden. The context shows that the word "the” was intended for the word “his,” and the use of the word "the” instead was a mere clerical misprision. The indictment charges a public offense under the above statute. The indictment follows substantially the language of the statute and is sufficient. There was no error therefore in overruling’ appellant’s demurrer and motion to arrest. Blais v. State, 94 Ark. 327; State v. Perry, 94 Ark. 215; Evans v. State, 58 Ark. 47. There was testimony on the part of the State tending to show that one Hodge was appointed to act as constable in a replevin suit to take possession of a machine whibh at the time was at the home of the appel lant. Hodge was accompanied to appellant’s home by E. Ej. Walden. When they arrived at appellant’s house, Hodge showed appellant the writ in his hands-. The appellant objected to the service of the writ on the ground that it -did not show that Hodge had been legally appointed constable to serve the same, Hodge not being the duly elected constable. When this controversy arose, Hodge referred appellant to Walden, who was an attorney for the plaintiff in thp civil action. Walden stated he thought the papers were regular. Thereupon appellant said to Walden, “What in the hell have you got to do with it?” Walden replied, “I haven’t got a thing--only I am attorney in the case.” Appellant then said, “By Gr — , you will leave here; I am a good mind to take a billet of wood to you.” Walden remonstrated with him, and appellant further said, “By —, you will leave here. If you don’t, I will go in the house -and get my pistol.” This all occurred at appellant’s home outside the gate. After defining the offense in the language of the statute, the court instructed the jury that the burden was on the State to prove the guilt of the defendant beyond a reasonable doubt, and further said, “The defendant. in this case claims the prosecuting witness, Walden, accompanied Mr. Hodge there for the purpose of serving the papers, and did not have legal authority for that purpose, and that E. K. Walden, after he reached the place to serve the papers, was the aggressor and caused the disturbance. If you find this to be the -case, you may take that fact in mitigation of the punishment of the defendant, if you find the defendant guilty.” The appellant duly excepted to that portion of the instruction which said, “you may find in mitigation only,” and asked the court to instruct the jury in effect that, if Hodge was not duly appointed special agent to serve the writ, then he was a trespasser, and the defendant would be justified in forcing them to leave the premises. The court refused appellant’s prayer, to which ruling the appellant duly excepted. The court did not err in its ruling. The fact that Hodge was not legally appointed special agent to serve the writ could furnish no 'justification to appellant in using profane, abusive and insulting language toward and about Walden. 8 R. C. L. § 307, p. 286. Even though Walden and Hodge were proceeding illegally, and in that sense were trespassers, nevertheless such fact would not justify the appellant in using profane and opprobrious language toward and about Walden. The court correctly instructed the jury that they might consider the fact that Hodge and Walden were proceeding illegally in mitigation, if they found the appellant guilty as charged. There is no error, and the judgment is therefore affirmed.

Woon, J. The appellee instituted this action against the appellant on a benefit certificate issued by the appellant on February 23, 1918, to the son of the appellee. The appellee was named as the beneficiary in tbe certificate, and in her complaint set up the certificate, and alleged that she had complied with all of the terms of the contract and was entitled to recover thereon the sum of $500. The appellant admitted that it had issued the certificate, but denied that the appellee was entitled to recover the sum of $500. It admitted that, under the contract, it was due the appellee the sum of $17.76, and offered to confess- judgment for that amount. The essential facts are substantially as follows: The appellant is a fraternal benefit society doing business in this State. Its constitution and by-laws are expressly made a part of the contract of insurance. The contract contained the following provision: “In the event the holder of this certificate shall die while serving in any branch of the United States army or navy, either as an officer or enlisted man, outside of the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality; provided that, should the holder of this certificate so desire, he may, within thirty days after entering the service in any branch of the United States army or navy as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America and pay in advance to the sovereign clerk, for the society, the sum of $37.50 per one thousand dollars insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign Camp of the Woodmen of the World; and upon so doing at the death of the member, or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries.” Peaugh enlisted as a private in the United States army on April 13, 1918, and on October 26, 1918, he was killed while engaged in a battle in France. The insured did not pay the additional $37.50 to the sovereign clerk, and did not notify the sovereign clerk that he had enlisted in the United States army. Before leaving for France, Peaugh arranged with the cashier of the Bank of Success to pay all of his assessments as they were presented. He had on deposit with the bank more than $100. The cashier paid the dues for several months as they were presented by the clerk of the local camp, and would have paid the additional sum of $37.50 if it had been called to his notice that it was necessary to do so in order to keep Peaugh’s policy alive. Appellee went to see the clerk of the local camp concerning the payment of her son’s dues. The clerk told her that he was looking after the payment of the dues. He knew that her son had gone to the army. The court, in effect, instructed the jury that if the insured had made arrangements with the cashier of the hank where he had sufficient money on deposit for the payment of his dues to pay these dues and had arranged with the clerk of the focal camp to collect the dues from the hank, and the clerk of the local camp told the appellee that he was looking after the collection of the dues and premiums on the policy in her favor, and failed or neglected to collect the $37.50 additional insurance, and they further found that it was his duty to collect the same and report the same to the sovereign clerk, the appellant would be estopped from saying that the required notice was not given and the additional premium was not paid. The appellant asked the court to instruct the jury to find for the appellee in the sum of $17.76, and to instruct the jury that upon the uncontroverted facts they could not return a verdict for the appellant in a greater sum. The provision in the contract requiring the insured, in the event he entered the United States army or navy, to notify the sovereign clerk at Omaha, Nebraska, of such fact and to pay the sovereign clerk the sum of $37.50 in addition to the régular sum in order to keep the policy alive for the full amount of $500 specified therein, was a valid provision and mutually binding upon the parties to the contract. Miller v. Illinois Bankers’ Life Association, 138 Ark. 442; Security Life Insurance Co. of America v. Bates, 144 Ark. 345. See also Sovereign Camp W. O. W. v. Ricks, 106 S. E. 185; Nowlan v. Guardian Life Insurance Co., 107 S. E. 177; Marks v. Supreme Tribe of Ben Hur, 230 S. W.540; Huntington v. Fraternal Reserve Association of Oshkosh, 181 N. W. 819; McQueen v. Sovereign Camp W. O. W., 106 S. E. 32. The contract expressly required of the insured, in the event that he entered the service of the United States army or navy, to notify the sovereign clerk at the home office of the Society at Omaha, Nebraska, of that fact and to pay “in advance to the' sovereign clerk for the society the snm of $37.50.” The undisputed testimony show's that this was not done. The facts in this case clearly differentiate it from the cases of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132; Security Life Insurance Co. of America v. Bates supra; Sovereign Camp W. O. W. v. Key, 148 Ark. 562; and Illinois Banker s’ Life Association v. Dowdy, 149 Ark. 72. The appellant is not estopped by its conduct from availing’ itself of the defense that the requirements of the “war clause” of the contract were not observed in the matter of giving the notice and paying the additional sum of $37.50. The local camp clerk was not a general agent, and there is no testimony to show that he was authorized to act for the sovereign clerk in giving the notice and receiving the payment required by the above express provision of the contract. The court therefore erred in submitting this issue to the jury and in not instructing .the jury as requested by the appellant. Since the above provision of the contract was not complied with on the part of the insured, the appellee under the undisputed evidence is only entitled to recover the sum of $17.76, for which the appellee offered to confess judgment. The judgment of the court will be modified by reducing same to the sum of $17.76, and as thus modified it is affirmed.

McCulloch, C. J. This is an appeal from a conviction of murder in the first degree, the punishment of appellant being fixed by the jury at life imprisonment. The accusation against appellant is that he killed Lewis Vandergeten in Pope County on the night of November 27, 1920, by shooting him with a gun. The first contention of appellant is that the evidence is not sufficient to sustain the verdict. The killing occurred in a building called the “wash-house,” at a coal mine about three miles from Bussellville. On the night mentioned, the deceased and a crowd of other boys and men were engaged in playing craps in the wash-house at the coal mine, and about 11 o ’clock they were held up and robbed by three masked men. The three men walked into the wash-house by different doors, and one of them coming through the door at the north was armed with a shotgun. Deceased failed, when ordered, to put up his hands, and the man with the gun shot him, killing him instantly. The weapon used was a double barrel shotgun, and the empty shell was' extracted and thrown on the floor at the spot where the shot was fired. One of the participants in the crap game who testified as a witness identified appellant as the man who fired the shot. The witness stated that he was well acquainted with appellant, and was standing in the crowd in the wash-house when the three robbers entered; that he saw enough of appellant’s face to be able to recognize him and did recognize him as the man who fired the shot. Two other witnesses testified that the next morning after the killing appellant, apparently laboring under excitement, in speaking of the killing, said: “I done it. I might as well say I done it. I will be accused of it anyhow.” That was, according to the testimony, before the appellant was arrested, and before any accusation was made against him. Appellant and his step-mother lived in about 300 yards of the wash-house. He had been to Russellville that night, and shortly before the killing he and two other young men drove out to the wash-house in a jitney, entered the house and participated in the game. Appellant left the house in a few minutes, and about fifteen or twenty minutes later the robbers entered and committed the crime. Appellant testified that when he left the wash-house he went home and remained there for about an hour and a half, and on his return to the wash-house ascertained that the crime had been committed, but that he was not a participant in the crime, and had no knowledge of it until he had returned to the wash-house. A double-barrel shotgun was found at the house occupied by appellant and his step-mother, and on examination it appeared that one of the barrels of the gun had been recently fired. Shells of the same size and make as the empty one found on the floor in the wash-house were found at appellant’s house. During the progress of the trial there were experiments made by firing from appellant’s gun the same kind of shells, but these are matters which will be referred to later in discussing other assignments of error. There was sufficient evidence to sustain the verdict. The credibility of the witnesses was a question for the jury to determine, and there was testimony adduced, both direct and circumstantial, which tended to establish appellant’s guilt. There are other assignments of error which will be discussed !n the order mentioned in the brief of counsel. Objections were made to certain questions propounded to Mrs. Bettie Shinn on cross-examination and the exhibition to her of a letter said to have been received from appellant without introduction of the letter before the jury. Mrs. Shinn was asked whether or not she had corresponded with appellant while he was temporarily held in the penitentiary under the present charge. She answered in the affirmative, and the prosecuting attorney thereupon held up a letter and asked her if she had received that letter from appellant. There was a long colloquy then between counsel in the case, in which appellant’s counsel objected to the introduction of any correspondence on the ground that it was not admissible because written from tho penitentiary, and also on the ground that the letter itself should first be shown to the witness. The court permitted the question to be asked in the following form, and answered: “Q. I will ask you if you got a letter from Shinn in which he stated this, ‘You all know that I left home and come back through the same door, and that the lights were burning when I left and when I come back, and that I could not have took my gun or brought back any gun, as the lamp was lit when I come back, and the kind of pants I wore, so you will be asked all these, and that I slept on a couch in the north room, your room, and that the lights burned all night, and me and Luther got up and fed and milked the cows, etc., in the morning. ’ Did you get a letter from him with a statement like that from him ? A. “Yes, sir.” Without determining whether or not the contents of the letter were properly brought to the attention of the jury, we are clearly of the opinion that there was no possible prejudice that could have resulted from this incident in the trial. There was nothing unfavorable to appellant’s defense contained in the purported statement in the letter. It was written to his step-mother, with whom he was living at the time the killing occurred, and with whom he sustained, according to the testimony, the most cordial relations, and the statement does not tend to incriminate appellant in any way, so therefore there was no prejudice in its introduction. It is next contended that there was error in permitting appellant to be cross-examined concerning »his past conduct. Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. Ware v. State, 91 Ark. 555; Hunt v. State, 114 Ark. 239; Nelson v. State, 139 Ark. 13. After appellant closed his case, the State called several witnesses in rebuttal, among others one Everett Gray, who was asked about an alleged conversation between him and appellant in regard to another robbery. The witness stated that he had had such conversation, and no objection was made to that testimony. Objection, however, was made to the next question propounded to the witness, and the prosecuting attorney withdrew the question for the time. Thereupon, the State was permitted, over appellant’s objection, to recall appellant himself for the purpose of asking him concerning his statements to witness Gray. The objection was made in the following language: “The defense closed, and he is now asking questions in rebuttal — going to open the case in order to make rebuttal testimony. We object to it.” The ground of appellant’s 'objection was, in substance, that the case should not be reopened for the purpose of allowing appellant himself to be cross-examined. The court overruled • the objection, and the prosecuting attorney was permitted to ask the witness if he aad not requested Everett Gray to go to one Baker and get a gun and assist in robbing a certain crap game. The appellant replied that he did not make such a request. Witness Gray was then recalled and was examined and cross-examined concerning the alleged request made of him by appellant to participate in holding up another crap game. Appellant made no objection to the introduction of the testimony of Gray. The recall of appellant as a witness for further cross-examination was a matter in the discretion of the court, and it does not appear that the discretion was abused. It was competent for the State to ask appellant on cross-examination whether or not he had requested Baker to assist in robbing a crap game on another occasion, but the State was bound by appellant’s answer, and, it being a collateral matter, the State could not introduce independent testimony concerning it. There was no objection, however, to the introduction of Gray’s testimony, and therefore, appellant was in no attitude to complain of the rulings of the court in admitting it. During the progress of the trial, certain experiments were made by the attorney for the State and one of the witnesses using the. gun owned by appellant and empty shells similar to the one .found on the floor of the wash-house. It appears that in these experiments the gun was snapped on the empty shells in the presence of the jury. There was no objection to the experiment being thus made in the presence of the jury, but counsel for appellant objected to the introduction of the impression made on the primer of the shells in the experiment, on the ground that the shells being empty the impression would not be the same as on a loaded shell. A long colloquy between counsel resulted, and appellant’s counsel finally withdrew the objection. Certainly, no error could be assigned under these circumstances, for there was no objection made to the experiment, and the objection made to the introduction of the shells was expressly withdrawn. It appears that after the indictment of appellant by the grand jury the gun which he is said to have used and the empty shell found on the floor of the wash-house were preserved by the sheriff and were exhibited to the jury during the progress of the trial. Before the trial certain experiments had been made by a deputy sheriff and one of appellant’s attorneys, Mr. Ward, and the result of these experiments in firing the gun at a target was offered in evidence, but the State objected on the ground that the shots had been fired by one of appellant’s attorneys. Thereupon appellant requested that the jury be permitted to take the gun and shells similar to the one found in the wash-house and fire at a target. The attorney for the State agreed to this suggestion, and asked that the jury be allowed to go to the wash-house and fire the gun from the spot where the man who shot Vandergeten stood, but the court refused to send the jury to the wash-house. At the close of the trial appellant renewed his request for these experiments to be made by the jury, and the court ordered it to be done. The record contains the following statement made by the court: “Gentlemen of the jury, the sheriff has procured here the shells, all shells just like the one that was in the gun, three other shells not of the same brand, but same size shot. Now I understand the jury wants to get a shave, and in the morning before you come to court I will have the sheriff bring these shells and these targets and the gun down to the hotel, and Mr. Worsham can take you out with a tape line, and I will give written instructions here as to the distances you can fire these shots. I have stated here that yon oan fire three shots from a distance of 23 feet 7 inches, three from a distance of 21 feet and 9]/- inches, three from a distance of 17 feet 8 inches, and three 15 feet and 7 inches. Let the man who shoots stand on a line at a distance indicated from the target. And. nobody to go with the jury making any demonstration. Yon can bring these targets back into court, Mr. Deputy Sheriff. And, gentlemen, you will not talk .about, it yourself or comment at all, and I don’t want you to let anybody go with you out where it is occurring. If anybody should undertake to follow you, just suggest to them that they must not go. Now you can number each shell; number the targets the same number of shells. No harm about that. Let the record show that the defendant was present when the targets and experiments were made.” This seems to have occurred late in the afternoon, and the record -shows that on the following morning when court convened the following occurred: ■ Counsel for appellant stated: “We wish now to introduce the shells which were, fired by the jury this morning by direction of the court yesterday, and also to identify the targets made by the jury with the shells. The jury has these targets. We want these introduced as evidence.” The Court: “The jury has the targets and the shells are here, 'and numbered. There is no need to identify them further. They will he considered in evidence now in the case, upor. your motion.” Nothing further occurred concerning ■ this incident, and there is nothing -else in the record to indicate whether appellant was actually present when the experiments were made, though it is inferable from the recitals in the record that neither appellant nor his counsel were present when the experiments were made. It is contended now that the integrity of the trial was destroyed by permitting the jury to make these experiments outside of the court room and in the absence of the court and in the absence of appellant himself. It is. however, affirmatively eh own in the record that all that was done was at the specific request of appellant himself. He was given the opportunity to be present if he so desired, and the next morning, when the results of the experiments were brought in, counsel for appellant made the specific request that they be introduced to the jury for their consideration. The conduct of the court and jury was induced by the appellant himself, and this makes a case of invited error. If there was error committed, it was at appellant’s own request, and he took advantage of all that was accomplished in that portion of the proceedings. Under those circumstances, appellant is in no attitude to complain. The constitutional right to have the tests made in his presence, and in the presence of the court, was expressly waived. McVay v. State, 104 Ark. 629; Davidson v. State, 108 Ark. 191; Scruggs v. State, 131 Ark. 320. We find no error in the proceedings, and the judgment is therefore affirmed.

McCulloch, C. J. Appellant is a road improvement district in Randolph County created by a special act of the Legislature, approved February 27, 1919 (Road Acts 1919, p. 356), and on June 17, 1919, the district entered into a written contract with appellee’s intestate, E. J. Hahn, for the sale of bonds to be issued for the purpose of raising funds to be used in the construction of the improvement. .It was stipulated in the contract that the purchaser should accept the ‘ ‘ entire anticipated bond issue in the sum of $400,000, or so much as the district may require, the bonds to be serial and run from one to twenty-five or thirty years, as the district may elect, to be dated October 1, 1919, and to bear interest at the rate of six per cent, per annum, payable semiannually.” It was further agreed in the contract that the purchaser should, within ten days, deliver to the secretary of the board a certified check, in the sum of $10,000, “to guarantee compliance with the terms of the contract, ’ ’ the cheek not to be cashed, but to be held in trust until the bonds were tendered in compliance with the contract. Still another stipulation in the contract was •that the commissioners agreed “to use their best efforts to have the assessment of benefits confirmed and the bonds issued with the least possible delay.” Hahn delivered to the secretary of the board of commissioners a certified check for the sum of $10,000 on a bank in Little Rock, in compliance with the terms of the contract, and, shortly -thereafter, before anything else had been done under the contract, Hahn died. The subsequent dealings with the district were conducted by Hahn’s personal representative and those associated with him in the business. The bonds were never accepted by Hahn’s representative, and this is an action instituted by the administrator to restrain appellant district from collecting the check and to restrain the bank from paying the same. The chancellor granted the relief prayed for in the complaint, and the district has appealed. There was a clause in the contract to the effect that the purchaser of the bonds should make advances to cover the preliminary expenses of the district, which advances were to be paid out of the first issue of bonds. Sums of money were furnished from time to time, aggregating about $15,000, and negotiable promissory notes were executed by the district to cover the same, but it does not appear in this record what became of those notes, and they are not involved in the present litigation— the sole subject-matter of the suit being the check deposited by Hahn as a guaranty for the performance of the contract. The district covered a large area in Randolph County, said to constitute about four-fifths of the county, and the original statute creating the district provided for surfacing the specified roads with crushed rock and constructing necessary bridges along certain roads in the district. There were eleven roads mentioned, which were to be improved. The statute also contained a provision that the average cost of the road should not exceed $3,000 per mile, and it was estimated by the engineer during the progress of the preliminary work that the improvement could not be constructed within the limits thus specified as to cost. An amendatory statute was enacted at the extraordinary session of the Legislature in January, 1920, providing that the limitation of $3,000 per mile upon the cost of the improvement was to be exclusive of the cost of bridges and culverts. The amendatory statute' provided also for the improvement of three additional roads, making fourteen in all, instead of eleven, as originally provided for, and it also provided that the roads described should be graded and drained, and that such parts of them as the commissioners deemed advisable should be surfaced with gravel or crushed rock. The new act also provided for repairing and strengthening the bridge across Black River. The final estimates and plans of the engineers were filed with the commissioners April 26, 1920, and were approved by the commissioners on that day. The lists of assessments of benefits were filed with the county clerk on May 21, 1920, and, after publication of notice, the same were completed on June 8, 1920. In a letter dated March 25, 1920, the personal representative of Hahn’s estate indicated to the commissioners a refusal to accept the bonds, it appearing that at that time there had been very considerable depreciation in the market price of bonds of this character. Further correspondence took place between the parties, but those representing the Hahn estate persisted in the refusal to accept the bonds, formal tender of which was made after the approval of the final plans and specifications and the completion of the assessment of benefits. It is contended by counsel for appellee that the Hahn estate was absolved from liability under the con tract on two grounds: First, that the contract itself was altered by the amendatory act of February 4, 1920; and, second, that the district committed the first breach by 'delaying an unreasonable length of time before putting itself in an attitude to make delivery of the bonds. We are of the opinion that the first contention of counsel is correct, and it is therefore unnecessary to- discuss the second. Nor is it necessary to discuss the question how far the parties were bound by the executory features of the contract, as we are dealing now with the sole question of the right of Hahn’s estate to prevent the collection of the check which had been deposited with the district as a guaranty of the performance of the contract. It is to be remembered that the purchaser obligated himself to accept the entire anticipated bond issue of the district, estimated to be the sum of $400,000 “or as much more as the district may require.” The obligation was to accept the entire bond issue, whatever it might be under the law and the necessities of the district as then existing. The changes wrought by the new statute were very material and constituted a substantial alteration of the contract itself. It removed certain limitations as to the cost of the improvement and enlarged the scope of the improvement by providing for the improvement of three additional roads. It also changed the purpose from one to surface all the roads with crushed rock to the surfacing only of such roads as the commissioner’s might decide upon. This is not a case, as argued by counsel for appellants, where the law has merely imposed additional obstacles or burdens on the performance of a contract. Therefore, the cases cited in the brief of counsel are not applicable. It is a case where the contract itself has been changed by authority of law, and it is unimportant that this change was not a voluntary one on the. part of the district itself, but was compelled by the lawmakers. The district is a creature of the law, and any changes made by the lawmakers were tantamount to changes made by the district itself. The original statute, creating the district and the powers and duties conferred and imposed thereby, entered into the contract and became a part thereof, and a change in the law necessarily constituted a change in the contract, in so far as it altered the obligations of the parties. In this respect, the case presents merely the familiar question -of one party attempting to change the contract without the consent of the other. The difference is this, however, that in the case of individuals a change can not be made by one without the consent of the other who has a right to insist upon the performance of the contract as made; whereas, in this instance, the change is made by the sovereign power of the law which controls the action of the improvement district. Nor is there any question involved of the impairment of the obligation of the contract, for it was merely tentative, and'was not binding on the district in advance of a completed assessment of benefits demonstrating that the cost of the improvement would not exceed the benefits. Cherry v. Bowman, 106 Ark. 39; Thibault v. McHaney, 119 Ark. 188. It follows that the decree of the chancery court was correct, and the same is affirmed.

Smith, J. On the 18th day of January, 1916, the People’s Bank of Searcy recovered a judgment against H. L. Brown in the sum of $4,500. An execution issued on said judgment and was levied on lots 10, 11 and 12, in block 30, of the city of Searcy. Sometime prior to the issuance of the execution, Brown had moved from his home on the above-described lots to Des Arc, and had rented his home to one McCain. He claimed the property as exempt, and that claim was sustained by this court in the case of People’s Bank of Searcy v. Brown, 136 Ark. 517. The opinion in that case was delivered May 6th, 1918. On September 3, 1918, another execution was issued and levied on the above-described property, but the property was erroneously described in the sheriff’s return, in the notice of sale, and in the certificate of purchase, as being lots 10,. 11 and 12, in block 27, although the levy was actually, made on the lots belonging to Brown. The bank brought suit in equity, in which the facts above recited were alleged. It was further alleged that on October 29, 1918, Brown had pretended to convey the lots to W. M. Bell, but that no consideration had passed from Bell to Brown, and that said conveyance had been made to hinder and delay the bank in the collection of its judgment. That Brown was insolvent, and Bell was holding the title for Brown’s benefit. There was a prayer that the sheriff’s return and certificate of purchase be Corrected to read block 30, instead of block 27, and that the deed to Bell be canceled. In his answer Brown denied the allegation stated, and alleged the fact to be that said lots had at all times been his homestead until the sale thereof to Bell. This answer was adopted by Bell as his own. The court found the fact to be as alleged in the bank’s complaint, and made a specific finding that Brown had abandoned his homestead, and that the con veyance to Bell was in fraud of Ms creditors. The court canceled the deed to Bell and ordered the property sold, and this appeal is from that decree. The examination and the cross-examination of Bell makes it reasonably certain that the deed to him was without consideration; and, in support of the validity of the deed, it is chiefly insisted that, as it was a conveyance of a homestead, no creditor had the right to complain. The controlling question in the case is whether there had been an abandonment of the homestead prior to the levy of the execution; and we have concluded, upon a careful consideration of the testimony, that the finding of the court that there had been an abandonment is not clearly against the preponderance of the evidence. The testimony upon which that finding was made is to the following’ effect: Brown left Searcy in 1915, and did not thereafter at any time reside in Searcy. After leaving Searcy, he immediately and continuously offered the lots for sale. On Ms direct examination as a witness Brown testified that before his sale to Bell he had already bought a home in the town of Des Arc. On his cross-examination he stated that his wife had bought the home, and that after his sale to Bell, and out of the proceeds of that sale, he had paid his wife back the money she had paid for the Des Arc home. But, as has been said, the examination of Bell and his answers to questions as to the amount paid by him, where he obtained the money, and how he paid it, makes it reasonably certain that Bell paid Brown no money, and that the deed to him was not bona fide. Brown explained his action in buying the home from his wife, after she had bought it and paid for it and had taken the deed in her own name, by saying that he found it unpleasant to live in a home owned by his wife. It is true, as is insisted by counsel for Brown, that Brown’s offer of Ms home for sale did not, of itself, constitute an abandonment thereof, and it is also true that his own testimony shows he had no such intention; but we think the facts stated herein, with the inferences reasonably deducible therefrom, warranted the court in rejecting this statement and support the finding that he had in fact abandoned the Searcy home, and that it thereupon became subject to sale in satisfaction of the judgment against him. This being true, it follows that the conveyance of it, made in fraud of creditors, was properly set aside. Decree affirmed.

. Wood, J. On the 7th day of April, 1921, Frank Mosley and M. C. Wade entered into the following contract : “I hereby make application for lots 12 and 13 in block 3 in Iron Mountain Addition to Texarkana, Arkansas, at the price of $425, payable $10 per month without interest, except after maturity, and all past due payments to draw 10 per cent, interest. It is agreed that I am to get general warranty deed when I have paid amount due in full. It is understood and agreed that when payments are sixty days behind, this contract is null and void, and all payments made shall be forfeited as rents. ’ ’ M. C. Wade and B. H. Kuhl were the owners of the lots described, and Wade, in entering into the above contract, was acting for himself and Kuhl. The Iron Mountain Addition was a negro settlement. John W. Welch, a negro, was employed by Wade and Kuhl to sell lots for them and to receive and turn over to them contracts of sale made by him with purchasers of lots, and to collect the first payment. The sales he made were subject to the approval of Wade and Kuhl. The contracts, when entered into, were to be signed 'by Wade and returned by Welch to the purchaser. The above contract was consummated in this manner. Following the printed matter on the sheet were blanks to be filled in, showing the particular date and amount of each payment. All of the payments made under the above contract were made to Welch. Of the amounts paid Welch he turned over to Wade and Kuhl the sum of $317.50. Mosley testified that he made other payments to Welch which were not turned over by him to Wade and Kuhl, and these payments were indorsed on the contract, which brings the total amount of the payments made by Mosley as shown by the indorsements to $412.50. The last of the these indorsements was made July 15, 1919. Mosley made a further payment to Welch as shown by a receipt dated April 24, 1920, of $30, making a total of $442.50 paid as purchase money by Mosley to Welch on the lots under the contract above mentioned. According to the testimony on behalf of Wade and Kuhl, all the payments under the contract matured in 1915. Mosley never complied with the terms of the contract, but the vendors continued to receive payments under it long after maturity of the contract. In November, 1919, there being still a considerable sum due, the vendors elected to declare the contract of sale void and to treat the payments as rents, and on December 1, 1919, they sold the lots mentioned to John W. Welch, executing to him a warranty deed for the same in which the consideration mentioned was $425. John W. Welch actually paid them the sum of $142.20. Kuhl testified concerning this transaction as follows: “We deeded the lots to John W. Welch, without figuring the interest on the deferred payments, for practically what was due on the contract at the time he purchased. We took his representation for it. He claimed that Mosley had left the country; was down in South Texas or somewhere, and his wife was here in bad circumstances; and we told Mm at the time that the contract was void because the time had elapsed, and we declared it now void, and we wanted him to go ahead and sell it to some one else. He begged because I think he said Mosley’s wife was his cousin, and asked if I would allow him to preserve the woman’s equity in the property by paying the balance and deeding it to him, and let him in turn deed it to her, and I said I would under the circumstances. * * *The sum of $142.20 paid by John W. Welch was the balance due at the time of the contract, without figuring the interest on deferred payments.” Mosley went into possession of the lots soon after the contract for the purchase thereof was entered into, and made improvements thereon, and has since continuously occupied the same with his family as a home. On January 16, 1920, the Texarkana Building. & Loan Association took a mortgage from John W. Welch on certain properties, including the lots mentioned, to secure a note for $2,525, representing the amount of money which the association had loaned Welch. This suit was instituted by the Texarkana Building & Loan Association and the trustee in the mortgage against John W. and Mattie Welch, his wife, to foreclose the mortgage. Mosley intervened, and set up that he was the owner of the lots in controversy under his contract of purchase above mentioned, which he alleged had been fully executed on his part by the payment of the purchase money. He alleged that he had no knowledge of the warranty deed executed by Wade and Kuhl to John W. Welch, and that the same was executed by the parties to it by collusion and with a fraudulent intent to defeat him of his rights of title to the property; that the grantees, Welch and wife thereafter executed a mortgage or deed of trust to the Building & Loan Association conveying the lots in controversy with a fraudulent intent also to deprive him of his title; that the association and its trustee, Sanderson, were cognizant of and charged with notice of Mosley’s equity in the lots. He prayed that his title to the property be declared and vested in him. The Building & Loan Association answered the intervention of Mosley, setting up the deed from Wade and Kuhl to Welch and wife and the mortgage from Welch and wife to it, and asked that the same be foreclosed. It is 'also alleged that, if Wade and Kuhl breached their contract with Mosley by conveying the lots in controversy to Welch, it was entitled to recover of Wade and Kuhl the sum of $425, the amount of the consideration named in the warranty deed from them to Welch, because it had relied upon said deed in making the loan to Welch. It also set up that Mosley had forfeited his contract with Wade and Kuhl. It prayed that the intervener take nothing; that Wade and Kuhl be made parties, and that, in the event it be adjudged that Mosley was the owner of the lots, it have judgment against Wade and Kuhl for breach of warranty of their deed to Welch in the sum of $425, the consideration named therein. Wade and Kuhl were made parties, and they also answered the intervention of Mosley, denying all of its allegations, set up the contract mentioned, and claimed that Mosley had forfeited his right as purchaser thereunder, and that they had declared such forfeiture and had treated the contract as one of rental, and had declared the same null and void as to Mosley, and had conveyed the property by warranty deed to Welch. They also answered the cross-complaint of the Building & Loan Association and the trustee in the mortgage, denying its allegations, and setting up that they had executed a warranty deed to Welch for the actual consideration .of $142.50, and that the sum of $42.5 mentioned in the deed was not the true consideration. They prayed that the intervention of Mosley be-dismissed, and their deed to Welch be confirmed, and for all proper relief-. The above are substantially the issues and the facts •upon which the court rendered a decree vesting the title to the lots mentioned in Mosley and divesting the title out of Welch and wife and out of Wade and Kuhl, and also entered a decree in favor of the Building & Loan Association against Wade and Kuhl for breach of warranty in their deed to Welch in the sum of $425 with interest at 6 per cent, from January 16, 1920, and also foreclosing the mortgage on the other property mentioned therein. It was shown that the Building & Loan Association derived from the mortgage foreclosure the sum of $1,824.35, leaving a balance due it under the decree of $618.40. From the decree of the court Wade and Kuhl and Mrs. Kuhl prayed and were granted an appeal. Both the appellants, Wade and Kuhl, testified that Welch had authority to sell the lots in controversy and to collect the first payment, hut they also testified that he had no authority beyond this. But whether Welch had any actual authority to collect any hut the first payment, we need not stop to consider, for it is certain from the preponderance of the evidence in this case, which it is unnecessary to set out and discuss in detail, that Welch had apparent authority to represent the, appellants, not only in making the sale and collecting the first payment, but also in collecting subsequent payments. Mosley continued to make the subsequent payments to Welch which the appellants received from him and credited on Mosley’s contract of purchase. Indeed, Mosley testified that he paid all the money on the property to Welch, and the appellants do not controvert this, nor do they controvert the fact that they received such payments as were made by Welch and credited the same on Mosley’s contract óf purchase. By their conduct they clearly held Welch out to Mosley as having authority to receive the payments made by him on his contract of purchase, and they are now estopped from saying that Welch had no such authority. By the express terms of the contract under review, it became null and void as a purchase con tract if Mosley defaulted in the payments for sixty days, and the appellants had the right under the contract after such default to declare the contract of purchase at an end and to treat Mosley thereafter as their tenant and the payments made by him as rents. Sorrells v. Marble, 142 Ark. 300; Hanson v. Brown, 139 Ark. 60; Souter v. Witt, 87 Ark. 593. But the provision forfeiting’ the right of Mosley as purchaser upon default in making payments as prescribed was one made for the benefit of the appellants which they could waive. See above cases. The facts are that Mosley, immediately upon the execution of the contract, entered into possession of the property and continued in the possession of the same, making improvements, paying the taxes, and holding the same continuously as purchaser and owner and not as a tenant. The appellant testified that Mosley made default after the first payment, hut the uncontroverted testimony in the record shows that the appellants never at any time indicated to Mosley that they considered his contract of purchase forfeited and would thereafter treat him as a tenant. On the contrary, they continued, even to the time of making the warranty deed to Welch, to treat Mosley as the purchaser, and the testimony of Kuhl himself shows that their warranty deed was executed to Welch for the consideration of $142.50 upon the representation made by the latter that he should be allowed “to preserve the woman’s equity in the property by paying the balance and deeding it to him and let him in turn deed it to her.” The issue as to whether the appellants had waived the forfeiture was one depending upon the facts and circumstances developed by the testimony, and, as we view the evidence, the facts are undisputed and show clearly that the appellants had waived their right to treat Mosley as their tenant rather than as the purchaser. See Souter v. Witt and other cases supra. As between the appellants and Mosley, the next question then is: had Mosley complied with the terms of the contract by making full payment of the purchase money? This is purely an issue of fact. The original contract of purchase shows indorsements of payments made thereon and the last payment of $10 was indorsed July 15, 1919, which brought the total payments to that date to $412.50 and left a balance due at that time on the principal of $12.50 not including interest. Mosley testified that on April 24, 1920, Welch brought the final report showing that the balance due on the purchase money for the lots was $70, and he presented, in connection with it a deed purporting to be signed by Wade and Kuhl to Mosley and wife; that he paid Welch at that time the sum of $30, leaving a balance due of $40; that he was going away and told Welch that he would pay the balance when he returned. When he came back, Welch had gone, and the $40 claimed by Welch as the balance was not paid. But it appears from the indorsements on the original contract of purchase that, exclusive of interest, after the last payment on July 15, 1919, there was only due the sum of $12.50. Therefore, the payments made by Mosley of $30 on April 24, 1920, overpaid the balance due of the purchase money in the sum of $17.50, not including interest. But we are convinced from the testimony of Kfnhl himself that the appellants did not intend to, and did not, charge Mosley any interest on the deferred payments of 'purchase money, for the reason that the testimony of Kuhl shows that the appellants received the sum of $142.50 as a balance of the consideration due by Mosley under the contract. Kuhl expressly stated that the sum of $142.50 was paid by Welch and received by the appellants as the balance due under that contract. As before stated, the testimony clearly shows that Mosley had paid to Welch, treating him as the agent of the appellants, more than the amount called for as purchase money under the contract, not including interest. It occurs to us that the determination of the appellants to charge Mosley interest on the deferred payments of purchase money was an afterthought and one of the eventualities of this lawsuit. That suit was not in contemplation of the parties at the time Welch, acting for the ap pellants, received from Mosley payments which in "the aggregate exceeded the balance due by Mosley at the time the last payment of $30 was made. That Welch did not account to his principals for all the money which Mosley paid him is not the fault of Mosley. The appellants, as we have shown, held Welch out to Mosley as having authority to receive these payments, and Mosley was justified in so treating him and in making the payments to him. The court, therefore, was correct in holding that Mosley had paid the full consideration for the lots and in entering a decree investing and quieting title to same in him. The court entered a decree in favor of the Building and Loan Association against the appellants in the sum of $425, the amount of the consideration named in the warranty deed from appellants to John W. Welch with interest thereon at the rate of six per cent, per annum from the date of the mortgage by Welch to the association. The decree in this respect was correct. When Welch executed the mortgage to .the association including the lots in controversy, he presented to the association a warranty deed from appellants to him showing as a consideration for the lots in controversy the sum of $425. On the mortgage debt to the association, Welch is still due the sum of $618.42 with interest and costs of the foreclosure suit. Under the circumstances disclosed by the undisputed testimony, the appellants, as between them and the association, are estopped from claiming that they only received a consideration of $142.50 for their warranty deed to Welch conveying the lots in controversy. Welch represented to Wade and Kuhl that the $142.50 was being paid by him for Mosley on the latter’s contract of purchase. The testimony of Kuhl showed that the appellants acted upon this representation and made a deed to Welch expecting him in turn to deed the lots to Mosley. In making up the consideration for the deed, the former payments that had been made by Mosley to Welch were embraced.. By deeding the lots directly to Welch, instead of to Mosley, they thus put it in the power of Welch to defraud the Building and Loan Association by presenting their warranty deed to him. Appellants knew at the time they executed the deed to Welch that Mosley’s contract of purchase was outstanding. The appellee did not know this. In a suit for breach of warranty in a deed, as a general rule, parol testimony is admissible to show the true consideration for the purpose of increasing or diminishing the damages. Barnett v. Hughey, 54 Ark. 195; Davis v. Jernigan, 71 Ark. 494-97. But the appellants can not avail themselves of that rule against the association, because their conduct in connection with their deed to Welch should estop them from disputing the consideration which they specified. The covenant of warranty runs with the land, and when the purchaser or covenantee conveys, the covenant passes to his vendee or assignee, and such vendee or assignee, in case of eviction or failure of title, may recover from the original or remote grantor or warrantor the sum which such original grantor or warrantor received from his grantee, with interest thereon from the time of the conveyance to the last vendee or assignee, but he can not recover more than this sum. Barnett v. Hughey, supra; Hollingsworth v. Mexia, 37 S. W. (Tex.) 455; Lewis v. Ross, 67 Tex. 405. See, also, Phillips v. Reichart, 17 Ind. 120, 79 Am. Decisions, 463; Brooks v. Black, 11 L. R. A. (Miss.) 176; Rogers v. Golson, 31 S. W. (Tex.) 200; see, also, 11 Cyc. 1170. Since appellants, under the circumstances, must be held to have received from Welch the sum of $425 for the purchase of the land, and are estopped from asserting otherwise, the court was correct in awarding a decree in favor of the appellee for that sum with interest thereon at six per cent, from the date of its mortgage from Welch. The decree being in all things correct, it is.affirmed.

McCulloch, C; J. Appellant was convicted of the crime of assault with intent to kill, alleged to have been committed by shooting one Taylor with a gun. It is undisputed that Taylor was shot and seriously wounded as he was driving along a lonely part of the road late in the évening of March 26, 1921, returning to his home in Stone County from' Mountain View, the county seat. Taylor testified that appellant did the shooting. His statement was, in substance, that as he was driving along in a wagon he saw appellant come out into the road with a gun on his shoulder, and, after walking a short distance in the direction of the witness, he turned into the bushes, and as the witness drove by he fired the shot which took effect in the shoulder of-witness. He testified that he saw appellant and recognized him as he fired the gun. Appellant testified in his own behalf, and denied that he fired the shot or was present when the prosecuting witness received the wound. Appellant testified that he was out in the woods hunting for strayed goats, and upon hearing the shooting he went to the scene and ascertained for the first time that the witness, Taylor, had been shot. There had been previous difficulties and ill-will between the parties, and each one in his testimony placed the blame for their troubles on the other. There was other testimony in the case bearing with more or less force on the question as to who fired the shot, but all of the direct testimony on that issue came from the two parties to the encounter, the appellant and Taylor. After the return of the verdict appellant filed a mo-' tion for new trial, setting up, in addition to other grounds, the discovery of new evidence. It was alleged in the motion that Taylor was shot by one Shanks, and there was filed with the motion certain affidavits tending to support the claim that Shanks did the shooting. One of the affidavits was made by Shanks himself, in which he swore that he shot Taylor himself; there was also filed the affidavit of one Ware, stating that he was in the woods near the scene of the shooting and saw Shanks shoot the witness Taylor. There were also affidavits of other parties to the effect that on the night of the shooting Shanks came to a dance in-the neighborhood and told them that he shot Taylor. On . the trial of the motion Shanks and Ware were introduced as witnesses, and Shanks testified to the same effect as the statement in his affidavit, that he had shot Taylor and did so in self-defense, after having engaged Taylor in a conversation with reference to an alleged slanderous statement made by Taylor concerning the mother of witness. Ware testified that he was standing in the woods near a little branch or creek, and, after hearing a quarrel between the parties, he looked and saw Shanks shoot Taylor. The court overruled the motion for new trial, and in doing so stated that he knew from his own personal knowledge that appellant and his counsel were advised before the trial that Shanks claimed to have done the shooting, and also that the court did not believe that the statements of the witnesses were true. It appears from the. record that Shanks was summoned as a witness and was in attendance at the trial, and on the cross-examination of Taylor appellant’s counsel asked him the question whether or not Shanks had done the shooting. It does not appear that appellant was apprised, before the trial, of the testimony of witness Ware, but it is clear that appellant and his counsel were advised before the trial all about the claim of Shanks that he had done the shooting and his statements to that effect to numerous parties on the night of the dance. There is an entire lack of diligence which is essential before an accused can claim the benefit of another trial on account of newly discovered evidence. Shanks could not have been compelled to testify to facts which would incriminate himself (Ex parte Butt, 78 Ark. 262), but after appellant’s conviction he volunteered his testimony and would perhaps have voluntarily testified to the facts if he had been called to the witness stand at the trial. At least, it was the duty of appellant, knowing that Shanks had openly avowed that he had done the shooting, to call the latter to the witness stand and give' him an opportunity to testify. He had so freely and publicly made the statement to that effect that it was reasonable to assume that he would then as well as later have been willing to narrate the facts on the witness stand. While appellant was not apprised, so far as it appears from the record, that Ware would testify to having seen Shanks do the shooting, it was his duty to make all possible inquiry into the testimony tending substantiate Shanks’ statement that he had done the shooting. Besides this, the story told by Shanks and Ware is so improbable that the court was justified in the conclusion that the whole thing was a “frame-up” after the trial to secure appellant’s acquittal and then also to secure Shanks’ acquittal on the ground of self-defense. The court was therefore correct in refusing to set aside the verdict. This is the only ground urged here for reversal of the judgment, and since we find there was no error in refusing to grant a new trial on account of newly discovered evidence, it follows that the judgment must be affirmed, and it is so ordered.

Humphreys, J. This is an appeal from a decree of the Craighead Chancery Court, Western District, foreclosing a lien for delinquent assessments for the year 1920, with a penalty of 25 per cent, thereon, interest and costs, against lands owned by appellants in Drainage District No. 16, Craighead County. The complaint, in substance, alleged the creation of the drainage district, the appointment of commissioners, the assessment of benefits for the year 1920 against appellants’ lands, the delinquency in payment of the assessments and the accrual of penalty and interest on account of the failure to pay the same. Appellants filed an answer denying the corporate capacity of the drainage district to sue, and any liability for a penalty and interest, or the existence of a lien on the land for the payment of same; and, as additional defenses, alleged the disqualification of the county judge who made the order creating the district, the pendency of an appeal to the Supreme Court from a suit instituted in the circuit court by a large number of the land owners in the district for the abandonment of said district, the confiscatory nature of the assessment, alleging that it amounted to more than the current cash value of the property of the owners in said district, the sale of bonds to the amount of $50,000 for the construction of an extension or outlet of the drainage district in Poinsett County which was in territory not embraced in the district, and the failure of the commissioners to record the contracts made by them for the improvements in said district. A general demurrer was filed to the answer, which was sustained by the court. Appellants elected to stand upon their answer, whereupon the court rendered a decree declaring a lien upon each parcel of land for the tax, penalty, interest and costs thereon, and foreclosing the same, from which an appeal has been duly prosecuted to this court. Appellants contend that the court erred in sustaining the demurrer to the answer. We think not. The defenses interposed were collateral attacks on the order establishing and creating the drainage district and assessing the benefits on account of the improvements against the several parcels of land within said district. In a suit to enforce a lien against lands for benefits assessed against them in a drainage district theretofore organized, all defenses except a plea of payment are necessarily collateral. It is not contended that the assessments were paid. The matters as set forth in the answer attacking the validity of the assessment cannot be inquired into in this proceeding because they constitute a collateral attack on the judgments of the county court creating the district and confirming the assessment of benefits. Mudd v. St. Francis Drain. Dist., 117 Ark. 30; St. L. I. M. & S. R. Co. v. Maple Slough Drain. Dist., 138 Ark. 131; Dickerson v. Tri-County Drain. Dist., 138 Ark. 471; Washington Fire Ins. Co. v. Hogan, 139 Ark. 130. Of course, matters rendering a district or the assessment of benefits void for jurisdictional reasons might be pleaded as a defense in suits for the enforcement of assessments, but the matters pleaded in the answer in the instant ease do not go to that extent. No error appearing, the decree is affirmed.

Smith, J. Appellants brought suit by attachment in a justice court to enforce a laborer’s lien on three bales of cotton in the possession of appellees, Chandler and Redwine and George Cotton, to enforce a demand of $149.50 alleged to be due appellants for labor performed by them in the production of said cotton. There was a trial by the justice and a finding and judgment for the plaintiffs for the amount sued for. There was an appeal to the circuit court, where the cause was heard on the following agreed statement of facts: “It is hereby agreed that K. R. Chandler is a tenant in common with ,N. W. Redwine with regard to the product of the Redwine farm in Lonoke County, Arkansas, by virtue of an agreement between the said Redwine and K. R. Chandler, that they were to have equal shares of the product of said farm during the year of 1920, and the farm was to be worked by croppers who were to receive one-half of the cotton raised on said farm as a remuneration for labor performed in the production of said crop. It is further agreed between the said Redwine and Chandler that Chandler was to be the overseer of said farm and vested with the authority to contract with croppers to work the land for a consideration of one-half of the cotton produced by the labor of said croppers. “It is also agreed that K. R. Chandler and George Cotton entered into a contract whereby it was agreed that the said George Cotton was to cultivate about 80 acres of said land in cotton, and that the said George Cotton was to receive one-half of the crop of cotton raised on said 80 acres of land as a consideration for. labor performed by him in the production of said crop of cotton, and it was also agreed and understood by and between the said K. R. Chandler and George Cotton that one Carl Cotton and one Earl Cotton were to assist the said George Cotton, and that they were to receive one-third of George Cotton’s one-half of the cotton as a consideration for labor performed by them in the production of said crop of cotton. “It is also agreed that K. R. Chandler advanced George Cotton a credit of $1,035 upon the condition that the said credit was to be paid out of the proceeds of George Cotton’s share of the crop, and, after accounting for all the products raised on the farm of the defendants for 1920, there remains due and unpaid $17.53 to K. R. Chandler on supplies and money furnished the defendant George Cotton.” The court below found against appellants, and a judgment for a sum of money erroneously rendered against them. Since the transcript was lodged in this court, this judgment has been corrected to show that no judgment for money was in fact rendered against appellants, and that the judgment of the court was simply a dismissal of the suit to enforce a laborer’s lien. This correction of the judgment below does not dispose of the appeal, as the real question in the case is whether appellants have a laborer’s lien which should be enforced against the cotton attached by them. Redwine was not made a party by appellants in the justice’s court; but be appears to have been made a party on bis own motion, and tliis was a proper action to have taken; at any rate, it was not one which prejudices appellants. The contract between Chandler and Redwine, as shown by the agreed statement of facts, constituted them partners in their farming operations. The contract embodied in the agreed statement of facts between Chandler and Redwine and Cotton and Cotton’s sons — these appellants — is of a tripartite character, the effect of which was to constitute George Cotton and both his sons as share-croppers of their landlords,— Chandler and Redwine. As to the crop grown on this eighty-acre tract of land, the three Cottons were sharecroppers, and the landlord had a lien on the entire crop for advances made necessary to make it. The sons of Cotton did not elect to make a separate trade with tire landlord, which, of course, they might have done, whereby they would have been liable only for such advances as might have been made them individually. On the contrary, they cultivated the land under a contract which their father had made .with the landlord, and that contract was one under which the landlord had the right to make advances upon the security of the lien given Chandler and Redwine by law as landlord. No question is made about the advances to George Cotton being necessary to enable him to make the crop, and the judgment of the court below is therefore affirmed.

Smith, J. This proceeding grew out of the following citation which issued out of the Garland Circuit Court: “Whereas, on the 4th day of July, 1921, Charlie Weldon, in the County of Garland and State of Arkansas, made an assault on the person of the Hon. Scott Wood, judge of this court, and whereas said assault was without provocation and was prompted by malice by the acts of said judge in the performance of his judicial duties in a case pending in this court wherein the State of Arkansas is plaintiff and Charlie Weldon and others are defendants, and said assault was made with the intent to intimidate said judge and deter him .from the performance of his duties in the trial of said case; it is therefore ordered that an attachment of contempt of court be issued for the'said Charlie Weldon, and that he be requested-to appear at the next regular day of the present term of said court on the 13th day of July, 1921, and show cause if any he have why he should not be punished for said contempt. ’ ’ An agreement of exchange of courts was made between the judge of the Garland Circuit Court and W. B. Sorrels, judge of the Eleventh Circuit, and the matter was heard on the return day of the citation before the last-named officer. The case coming on for hearing, defendant Weldon, who will hereinafter be referred to as the petitioner, was found guilty as charged, and his punishment fixed at imprisonment in jail for three months and a fine of $500. Petitioner has by certiorari brought before us the record of the court below for review. • Judge Wood testified that the court over which he presided had taken a recess from the Saturday before the 4th of July to the 13th of that month, and that he spent the 4th at a bathing place called Arbordale Springs, eight miles from Hot Springs, the county seat; and that, as he came from the water, and was standing outside a dressing booth waiting to get in, hfe noticed petitioner walking toward him, and as petitioner came up he said to witness, “You are a smart guy,” and struck at the judge. The judge said, “What is the matter with you? You are crazy; you are a fool.’’ Petitioner said, “Did you hear what he called me?” The judge denied having called petitioner any name. The judge testified that he said to petitioner, ‘ ‘ I know what you are doing this for; you think you can bully somebody,” or “you are doing it because I did in my official capacity have to try you.” The petitioner used vulgar language toward the judge and called him some names, and asked, “What have you got it in for me for? What have I done to you?” but never denied that he was acting for the purpose of which the judge accused him, and made no response to the statement of the judge. The judge and the petitioner struck at each other, then clinched, but were separated without either having inflicted any bodily harm on the other. The judge further testified that he had only seen the petitioner in court, and had never before. had any conversation or communication with him. He stated that petitioner had been indicted’in his court for manufacturing intoxicating liquors, but an agreement had been made between petitioner and the prosecuting attorney that the charge should not be tried until a similar charge had been disposed of in the Federal court. Petitioner was convicted in the Federal court, but that conviction was reversed in the Federal Court of Appeals. Whereupon petitioner was put on trial in the Garland Circuit Court. There was a mistrial, and, in dismissing the jury, Judge Wood, who had presided, made the remark that the case would be set for another day and tried until a verdict was reached. Petitioner testified that he spoke to the judge civilly, who responded by saying, “Hello, mooner,” meaning thereby to call him a “moonshiner,” and that this offensive epithet of the judge caused the difficulty which then ensued. Each of these witnesses was corroborated in several material respects, but, without further reciting the testimonjq we announce the conclusion that the finding of the trial court is supported by the testimony. Ex parte Winn, 105 Ark. 193. It is insisted that the judgment of the court below must be quashed and the proceeding dismissed because the incident herein set out occurred on a day when the court was not in session, and at a place where a session of the court could not be legally held, and further that, as the conduct complained of did not take place in the actual presence of the court, the punishment imposed is without authority of law, and is, in any event, in excess of that permitted by the law. It is true that the incident complained of did not occur on a day when the Garland Circuit Court was in session (Light v. Self, 138 Ark. 221), although it did occur before the adjournment of the court for the term. It is also true that the incident occurred at a place where court could not be legally held (Mell v. State, 133 Ark. 197). But are these facts conclusive of the question presented on this appeal? Section 1484, C. & M. Digest, provides that every court of record ‘ ‘ shall have power to punish as for crim inal contempts persons guilty of the following acts,” and there follows in five paragraphs an enumeration of acts declared to constitute contempt of court. This section is taken from section 37, chapter 43, of the Revised Statutes of Arkansas; and no change appears to have been made in it except that as approved (February 28, 1838) it read: “Every court of record shall have power to punish as for criminal contempts persons guilty of the following acts, and no others,” and thereafter follow the five paragraphs as they now appear in section 1184, C. & M. Digest. The words, “and no others,” have been eliminated from the statute. This was done, by Josiah G-ould in the digest of the statutes' prepared by him in 1858, and in a note to the section where this omission first occurs the digester has the following explanation: “The words, ‘and no others,’ are stricken out as not binding on the courts. See State v. Morrill, 16 Ark. 384, and cases, there cited.” The facts in the case of the State v. Morrill, 16 Ark. 384, were that Morrill had published an article in a newspaper reflecting upon a decision of the Supreme Court and apparently attributing the decision to extraneous influences. In response to the summons which there issued, the defendant filed a plea to the jurisdiction, submitting that the publication was not embraced within the statute regulating the punishment of con-tempts. Speaking for the court, Chief Justice English conceded that the act charged against the defendant was not embraced within any clause of the statute. The insistence was made by counsel for the defendant that the court must look to the statute for its power to punish contempts, and not to any supposed inherent power of its own springing from its constitutional organization, and that the courts were controlled by this statute, and-could not go beyond its provisions. The Chief Justice proceeded to answer and to refute this insistence in an opinion evincing great research and learning. He quoted from the opinion of this court in the case of Neel v. State, 9 Ark. 263, as follows: “By the common law, a court may punish for contemptuous conduct toward the tribunal, its pi~ocess, the presiding judge, or for indignities to the judge while engaged in the performance of- judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts.” The opinion in the Neel case is one of equal erudition, and the two, together, so thoroughly discuss the common-law doctrine of contempt that this writer is unequal to the task of adding anything to the discussion, and the two opinions, together, make it clear that courts have power to punish for contempt as a necessary incident to the exercise of their express powers, and that in doing so statutory authority need not be sought or found to warrant that action. It is insisted, however, that our present Constitution has deprived the courts of this power, and that since its adoption the courts must look to the statute for authority to punish for contempt except those committed in the immediate presence or hearing of the court, or in direct disobedience to its process. The provision of the Constitution referred to is section 26, of article 7, and reads as follows: “The General Assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience to process.” Section 1483, C. & M. Digest. A similar contention was made in the case of Turk and Wallen v. State, 123 Ark. 341. There Turk and Wallen were never shown to have been at any time in the actual presence of the court. On the contrary, it affirmatively appears that the conduct complained of, to-wit, the intimidation of a litigant from appearing in court and prosecuting his suit there pending, was committed “before reaching the courthouse.” It was there insisted that, as the offense with which Turk and Wallen were charged “was not committed in the presence or hearing of the court, and was not in disobedience of any process of the court, its power to punish was exceeded in the fine and imprisonment assessed,” inasmuch as section 1485 C. & M. Digest (sec. 721 Kirby’s Digest) provides that punishment for contempts not so committed “shall in no case exceed the sum of $50 nor the imprisonment ten days.” Answering this insistence, Mr. Justice Kirby, for the court, said: “It is universally held that intimidating a witness and preventing his appearance at court or procuring him to absent himself from the trial is a contempt of court. Preventing the appearance of a litigant in court for the prosecution of a suit brought to enforce a right, by intimidation and threats, is such an obstruction of judicial procedure as renders absolutely worthless all process of the court, which is instituted for the enforcement and protection of the rights and the redress and prevention of wrongs of the litigants. It destroys the dignity and power of the court and brings the administration of justice into disrepute. “Here a citizen appealed to the court for the redress of an alleged wrong only to find himself confronted by the wrongdoer and his associate on the day set for the trial, at the door of the court, and so intimidated with threats, that he found it necessary to absent himself from the court of justice to which he had appealed, and abandon the prosecution of his cause of action through fear. “The conduct of appellants was a flagrant offense against the dignity and power of the court, whose arm is long enough and strong enough to keep open and unobstructed the way to its door to all who must invoke its authority, which is not limited in the right to punish offenses of this kind except by the infliction of such punishment as is commensurate with the the enormity of the offense and calculated to preserve and uphold the dignity and honor of the court and its respect in the confidence of the people. Ford v. State, 69 Ark. 550. The court had jurisdiction to hear the proceeding and did not exceed its authority in the assessment of the punishment.” If full faith and credit is given to that opinion, we think it must necessarily follow that petitioner is as guilty of contempt as were Turk'and Wallen. If intimidating a witness and preventing his appearance at court, is a contempt; if preventing the appearance of a litigant in court is such an obstruction of judicial procedure as constitutes contempt, why is it not contempt to be guilty of improper conduct designed and intended to influence and control the action of the court itself? The reasoning of Mr. Justice Scott in the case of Neel v. State, supra, is applicable here. He said: “When, therefore, the common law deemed it so necessary for this great purpose, to protect the juror, the witness, the informer, the party, the jailer, the attorney, and other persons, many of whom might never again be called into a court of justice, it was not to be expected that it would fail to cover, with its complete armor, the presiding’ minister of the law’s majesty, who would be so often exposed to similar trials. Not that any higher personal privileges were arrogated for him, than for the humblest of these, but because it was obvious that the principle, which suggested the protection of these, would, at least to the same extent, protect him, if it did not rise with the grade of the officer, and the majesty of the law be more degraded in the person of a higher than a lower officer, entrusted with its administration.” In offering actual physical violence to the person of the judge, petitioner was in the constructive presence of the court, for he sought thus to influence, intimidate and control the action of the judge in the matter of re-setting his case for trial when the judge had again resumed the bench. In the case of Stuart v. People, Scam. (Ill.) 395, the Supreme Court of Illinois said that in the class of constructive contempts would necessarily be included all acts calculated to impede, embarrass or obstruct the court in the administra tion of justice, and that such acts would be considered as done in the presence of the court. See also, People v. Wilson, 64 Ill. 196, 16 Am. Rep. 528; Ex parte McCown, 139 N. C. 95, 51 S. E. 597; 2 L. R. A. (N. S.) 603; McCarthy v. Hugo, 17 A. & E. Ann. Cas. 219, and the notes thereto in which cases supporting and opposing the view, that acts impeding the administration of justice will be held to be within the constructive presence of the court, will be found. It follows, therefore, that the judgment of the circuit court must be affirmed, and it is so ordered.

Hart, J. (after stating the facts). It is first earnestly insisted by counsel for appellants that the circuit court was without jurisdiction to try the case, and for that reason the appeal should be dismissed. No motion was filed or presented in the circuit court to dismiss the appeal from the probate court for want of jurisdiction, and the question of jurisdiction in the circuit court to try the case is raised here for the first time. The record of the proceedings in the cause in the probate court is contained in the transcript. It shows that the judgment of the probate court dismissing the petition of Alsie Thomas was entered of record on the 28th day of February, 1920, and that this was a day of the regular January, 1920, term of the Ashley Probate Court. The probate record also shows that C. D. Oslin was the judg’e of the probate court who rendered the judgment. In addition we copy from the record the following: ‘ ‘ Affidavit fob Appeal. “In re Estate of James Thomas. Petition for Assignment of Dower. “Alsie Thomas respectfully prays an appeal from the judgment of the probate court herein to the circuit court of Ashley County, and says that said appeal is taken because she verily believes she is aggrieved, and is not taken for the purpose of vexatión or delay. “Alsie Thomas. “Subscribed and sworn to before me this 28th day of February, 1920. “TJ. J. Cone, Notary Public. ‘ ‘ Filed February 28,1920. “George T. Gardner, Clerk. “Examined and approved this February 28, 1920. “0. D. Oslin, Judge.” It is claimed by counsel for appellants that the record of the probate court does not show that an appeal to the circuit court was granted, and that the circuit court acquired no jurisdiction of the case. Counsel for appellants invoke the general rule announced in Matthews v. Lane, 65 Ark. 419; Walker v. Noll, 92 Ark. 148, and other decisions of this court to the effect that it is necessary, in order to invest the circuit court with jurisdiction, that it appear from the record that the affidavit and prayer for appeal were presented to the probate court, and that the appeal was granted. In certain cases the statute requires that the county court shall grant the appeal to the circuit court, and under such statutes it has qlso been held that the granting of the appeal by the county court is a prerequisite to th.e exercise of the jurisdiction by the circuit court. Hence counsel places particular reliance upon the decision in Drainage District No. 1 v. Rolfe, 110 Ark. 374. In that case it was held that the circuit court was without jurisdiction, and that the judgment on appeal from the county court was void, where the record did not disclose in the matter of a formation of the drainage district that any of the steps were taken perfecting an appeal from the county to the circuit court. The court further held that, inasmuch as the record showed that the circuit court was without jurisdiction of the cause, the defect of jurisdiction was not waived by a failure to move the court to dismiss the appeal. Every decision must be construed with reference to the facts of the particular case. In that case the record of the Supreme Court contained a transcript of the proceedings in the county court, and did not show anything about a remonstrance against the formation of the district being filed in the county court; nor did it show an appeal from the county court, if any was granted; nor any of the steps necessary in taking an 'appeal. The statute required the county court to grant the appeal, and, having prescribed the method for taking an appeal, such method must be substantially followed in order to give the circuit court jurisdiction. In that case there was an entire absence, in the record brought to the Supreme Court, of any showing that the county court had granted the appeal, or that the parties interested had taken any of the necessary steps toward taking an apneal. Here the facts are essentially different. The record shows that an' affidavit for appeal substantially in the language of the statute was filed and sworn to on the day that the judgment of the probate court was rendered. Attached to this, affidavit is the following: “Examined and approved this February 28, 1920. C. D. Oslin, Judge.” The record of the probate court shows that February 28, 1920, was a day of the regular January, 1920, term of the Ashley Probate Court, and that it was the day upon which the judgment in question was rendered and entered of record. The probate record also shows that C. D. Oslin was the judge who rendered the judgment. The notation made by him on the petition is sufficient to show that the prayer for appeal was granted. Alsie Thomas had complied with the statute with regard to taking the appeal,.and was entitled to have it granted as-a matter of right. The record shows that the petition was filed while the court was in session, and the fact that the presiding judge marked on the petition the words, “Examined and approved,” and signed the same as judge, is evidence that he intended to act upon the petition and to grant the appeal. It is true that the order was not entered of record, but that was not necessary in order to invest the circuit court with jurisdiction. The granting of the appeal by the probate court upon the filing of a proper petition by the losing party was sufficient to confer jurisdiction upon the circuit court. The entering of such an order upon the records of the probate court was merely evidence of the fact that the appeal had been granted. The judicial act of the presiding judge of the probate court in term time in granting the appeal upon proper affidavit filed invested the circuit court with jurisdiction, and the manner of proving that the order was made could be waived, and it was waived by the appellants here not appearing in the circuit court and moving to dismiss the case there for want of jurisdiction. If they had made a motion to dismiss in the circuit court, they might have insisted that the record of the probate court was the best proof of whether or not an appeal to the circuit court had been granted, or they might have waived the production of the record and have permitted other proof to have been introduced of the fact that an appeal had been duly granted. The essential thing that gives the circuit court jurisdiction is the granting of the appeal by the probate court upon proper affidavit filed, and not the manner of proving the granting of the appeal. In short, under our decisions the parties could not waive the granting of the appeal by the probate court, but they could waive the manner of proving the same. This is shown by other decisions bearing on the question. In Stricklin v. Galloway, 99 Ark. 56, there was an insufficiency of the affidavit of appeal from the probate court to the circuit court, and the court held that this was waived by the parties appearing in the circuit court and taking substantive steps in the case. Again in Huffman v. Sudbury, 117 Ark. 628, the court held that it is not essential to the exercise of jurisdiction bv the circuit court that the affidavit for appeal filed in the probate court should appear in the record, but that the fact that it was so filed might be established by other evidence. So, too, in Spybuck Drainage Dist. No. 1 v. St. Francis County, 115 Ark. 591, where the statute required the county court to grant the appeal upon an affidavit filed in the manner provided by the statute, the court held that it was not necessary that the record of the county court should show that the affidavit for appeal had been filed, but that this fact might be shown by other proof that the affidavit for appeal was filed with the proper officer, and that when such proof was made the jurisdiction of the circuit court attached. In the application of this rule to the instant case it may be said that the record contains affirmative testimony from which the circuit court might have legally inferred that the probate court granted an appeal to the circuit court, and appellants will be deemed to have waived the proof of that fact by the entry of the order granting the appeal on the records of the probate court, because they did not move to dismiss the appeal in the circuit court on the ground that the jurisdictional facts were not shown by the best evidence. Therefore it can not be said that the appeal was not granted 'by the probate court, and that on this account the circuit court acquired no jurisdiction in the case. On the merits of the case, it is earnestly insisted that the findings of fact made by the circuit court are not supported by the evidence. The court found that Alsie Thomas was the widow of James Thomas, deceased, and as such was entitled to dower in his estate. Appellants introduced testimony tending to show that James Thomas and Alsie Thomas had never been legally married, and that they lived together in a state of concubinage. We need not set out this evidence in detail, because the case was tried before the court sitting as a jury, and the circuit court made a genéral finding of fact in favor of appellee. It has been uniformly and repeatedly held that the findings of fact made by a circuit court are as conclusive as the verdict of a jury, and will not be disturbed on appeal unless the evidence is legally insufficient to support them. Huffman v. Sudbury, 117 Ark. 628; Gay Oil Co. v. Akins, 100 Ark. 552; Fort Smith & Van Buren Bridge Dist. v. Scott, 111 Ark. 449; Cady v. Pack, 135 Ark. 445, and Matthews v. Clay County, 125 Ark. 136. This brings us to a consideration of whether the evidence adduced by appellee was legally sufficient to sustain the judgment. Appellee was a witness for herself. According to her testimony, James Thomas died on January 9,1920, at his home in Ashley County, Arkansas, and they had lived there as husband and wife for about eight years before he died. James Thomas and Alsie Thomas were married at Fort Smith, Ark., on the 6th or 7th of April, 1910, and lived together as husband and wife until James Thomas died. Appellee lived in the same house with James Thomas about six years before 1910, and cooked for him. She did not stay in the same room with James Thomas, but slept in another room with Causey Drew and Ms wife. James Thomas asked her to marry him, but put off their marriage. Finally she told him she was going to leave and go to Fort Smith to live because he had not married her as he had agreed to do. A few weeks after she went to Fort Smith James Thomas wrote her and asked her if she would marry Mm, if he would come to Fort Smith for that purpose. She answered that she would. He then wrote her to meet him at the train at Fort Smith on a certain day. On that day she did meet him, and he had a marriage license that was issued by the clerk of Ashley County, and as they walked along the street from the train they met an old negro preacher named Mooney, who used to live in Ashley County, and James Thomas- procured him to marry them. James Thomas turned over the marriage license to the old preacher, and they never saw it afterward. The marriage .license was never returned to the clerk by the preacher as provided by the statute. Two physicians who practiced medicine in Ashley County near where James Thomas lived after he brought Alsie back from Fort Smith testified that James Thomas told them that Alsie was his wife and always spoke to and of her as his wife. One of the physicians testified that he did their practice for four years, and during'all of this time James Thomas conducted himself toward Alsie as his wife and treated her as such. A salesman in the store where they traded stated that James Thomas always spoke of and treated Alsie as his wife. Several other witnesses testified that they lived near to James Thomas several years before he died, and that he always spoke of Alsie as his wife and treated her as such. According: to common repute in the neighborhood, they were regarded as husband and wife. It was shown on the part of appellants that the old colored preacher whom Alsie testified as having performed the marriage ceremony between James Thomas and herself in 1910, had died in Ashley County before that time. For this reason it is insisted that her testimony is not entitled to any probative force. We can not agree with counsel in this contention. This was a matter which affected her credibility as a witness only. It diminished the weight of her testimony, but did not destroy it. The law in this State is that marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation. Declarations of the parties are evidence tending to establish marriage. Kelly’s Heirs v. McGuire, 15 Ark. 555; Jones v. Jones, 28 Ark. 19; 2 Greenleaf on Evidence (16 ed.), § 462; 1 Wigmore on Evidence, 268, and vol. 3, §§ 2082-2083. In the light of these authorities, it may be said that the testimony of appellee to the effect that she and James Thomas were married in Fort Smith in 1910 under a license he had procured in Ashley County is testimony of a fact which, if true, established a ceremonial or legal marriage between them. Her testimony is not overcome because the marriage license was not returned by the preacher as required by the statute. Proof that they procured a license as required by the statute and were married by a minister of the Gospel showed a legal marriage, and the return of the minister of that fact on the marriage license was only evidence that the marriage had been performed by him, but did not of itself constitute the marriage. It may be that appellee was mistaken in the preacher who married them, but this did not overcome her testimony to the effect that they were married by a minister of the Gospel after James Thomas had procured a license therefor as provided by the statute. Her testimony is corroborated by that of several witnesses to the effect that James Thomas over afterward referred to appellee as his wife and treated and conducted himself to ward her as such. The testimony of appellee and the other witnesses was testimony of a substantive character and legally sufficient to support the findings of the circuit court to the effect that appellee was the widow of James Thomas, deceased, and as such entitled to dower in his estate. It is also insisted that the judgment should be reversed because the circuit court found that certain of the personal property was the individual property of appellee and rendered judgment in her favor for it. It is contended that the circuit court acquired only such jurisdiction on appeal as the probate court had in the original proceeding, and that the probate court had no jurisdiction in a contest between the administrator and others over property rights. It is true that the jurisdiction of the probate court is confined to the administration of the estate of the decedent. The probate court had jurisdiction to appoint appellee as administratrix of the estate of James Thomas, deceased, and to allot her dower in his estate as his widow. According to the evidence adduced by her, she and her husband lived on a farm in Ashley County, Arkansas, and he had accumulated considerable personal property which was kept on the farm. Certain articles of this property, however, belonged to her, and the court gave it to her. In order to properly administer the estate of James Thomas, deceased, and to allot dower to his widow, it was necessary for the court to determine what property belonged to the estate, and the question of the title to certain articles arose as a necessary incident to the determination of the main matter before the court. In such case the probate court can determine the question of title to the property, for this is necessary in properly administering the estate and allotting the property to those entitled to it as distributees under the statute. King v. Stevens, 146 Ark. 443. It follows that the judgment must he affirmed.

Hart, J. (after stating the facts). The suit was brought under the act of Congress of February 13, 1893, for the Regulation of Commerce and Navigation. II. S. Compiled Statutes, 1916,’ Ann. vol. 7, §§ 8029-8031; Barnes, Federal Code, 1919, §§ 7237-7239. In Knott v. Botany Mills, 179 U. S. 69, it was held that domestic voyages come within the provisions of the act. The first section of the act of Congress above referred to provides that clauses in bills of lading relieving the owner of any vessel transporting merchandise or property as provided in the act from liability for negligence, etc., are prohibited. The third or last section of the act provides that “if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel. ’ ’ In the interpretation of these sections of the act as applied to the facts of the case, the court gave, over the objections of the defendant, the following instructions: “4. If you find from a preponderance of the evidence that the two bales of cotton here sued for were delivered to the defendant company at Osceola landing and received by the company, then it was the duty of the defendant company to carry and deliver said cotton to the Eainer & Connell Company, consignee, at Memphis. And if you find from the evidence the defendant company did receive the cotton and failed or refused to so deliver the same, then you will find for the plaintiff for the market value of the cotton at Memphis at the time it should have been delivered there, together with interest at six per cent, from October 11, 1919.” “5. You are further instructed and it is agreed that lbe Helen Blair was seaworthy and properly manned. So, if you find the cotton was properly loaded on the boat and lost before the boat reached Memphis on account of any fault or error in navigation, or in the management of the boat, or on account of the danger of the river, if any, produced- by heavy winds, then you will find for the defendant.” The court then instructed the jury that the burden of proof on the whole case was upon the plaintiff. Counsel for the defendant insists that the judgment should be reversed on account of the conflict between instructions four and five. He claims that, because the defendant admitted that it had failed to deliver the cotton to the consignee, instruction number four was a peremptory instruction for the plaintiff. "We do not agree with counsel in this contention. The burden of proof was upon the plaintiff to prove that the defendant had failed to carry the cotton and deliver it to the consignee. Without making this proof, the plaintiff could not recover at all. Under the statute, there are certain exceptions to tlie general rule of liability. The burden of proof to show that the case.came within one of the exceptions was upon the defendant. Where goods are received in good order on board of a vessel under a bill of lading agreeing- to deliver them at the termination of the voyage in like good order and condition, and the goods, are damaged on the voyage, in a proceeding to recover for the breach of the contract of affreightment, after the amount of damage has been established, the burden lies upon the carrier to show that it was occasioned by one of the perils for which it was not responsible. The Folmina, 212 U. S. 354. In the present.case it was admitted by the plaintiff that the Helen Blair was properly manned and was seaworthy. The evidence for the plaintiff showed that the cotton was loaded on the boat, and it was admitted that it was lost before the boat reached Memphis. It was shown by the defendant that the water was rough and rolling on account of the winds. There were 512 bales of cotton on the boat. Instruction number five properly placed the burden of showing that the damage arose from one of the excepted causes upon the carrier. It, in effect, told the jury that it must find that the cotton was properly loaded on the boat before it could find for the defendant on account of any of the excepted causes. Thus we see that there was no conflict between instructions number four and five. Instruction No. 4 properly predicated the right of the plaintiff to recover upon its showing a failure of the defendant to deliver the cotton to the consignee. The packet company defended the suit on the ground that the loss of the cotton resulted from one of the exceptions to the general rule of liability, and instruction No. 5 told the jury that the burden was upon the carrier to establish this defense. The instructions thus dealt with different phases of the case and were in harmony with each other. Counsel for the defendant also claims that, because the complaint alleges that the cotton was loaded on the boat and delivered to the defendant, Wils on-Ward Co., which had converted the same to its own use, the plaintiff cannot recover <on the ground that the cotton was not property loaded on the boat. It is true that' the complaint contains the allegation just referred to; but it also contains another paragraph in which it is alleged that it had delivered the cotton to the Tri-State Packet Company for shipment to Memphis to Bainer & Connell Company, and that the defendant, Tri-State Packet Company, failed to deliver the cotton to the consignee or to account to the plaintiff for the value thereof. The case was tried on the theory that the cotton was lost in transit, and it was. submitted to the jury on this theory. As we have already seen, the burden was on the defendant to show that the cotton was properly loaded on the boat, and that it was not lost on account of any error in navigation or on account of the danger of the river caused by heavy winds. The admission by the plaintiff that the boat was property manned and was seaworthy, did' not also operate as an admission that the boat was properly loaded, or that there was no error in navigation, or in the management of the boat on the trip. The boat might have been property manned and yet not property navigated during the trip. Neither did the admission that it was seaworthy show that the boat was property manned during the trip, or that the loss of the cotton was necessarily caused by the dang’er of the river from the heavy winds. There was no prejudicial error in the record, and the judgment will be affirmed.

Hart, J. This is an appeal from a judgment sustaining a demurrer to and dismissing the complaint for damages for an alleged breach of contract. On January 31, 1921, E. W. Miles filed an amended complaint against the American Railway Express Company which is as follows: “The plaintiff alleges: “That defendant is and was at all times hereinafter mentioned a common carrier engaged in the carriage of express matter for hire, over the line of the Missouri Pacific Railroad Company, between the town of Bald Knob and the city of Little Rock, Arkansas. “That on the 15th day of June, 1920, plaintiff, through his agent, the Huffaker Mercantile Company, delivered to defendant, and the defendant accepted at its office in the town of Bald Knob, one metal bucket properly packed, iced and labeled, containing the head of a dog to be transported to the city of Little Rock, a distance of fifty-seven miles, and there delivered to the hygienic laboratory, and that plaintiff, throug’h his said agent, paid the sum required of him as charges for said services, and at the time informed defendant’s agent of the contents of said shipment and the specific purpose for which it was intended to be used. ‘ ‘ That, on the morning of said day,the dog from which the head was afterward severed, while showing symptoms of hydrophobia — which symptoms also show in other and less dangerous diseases of dogs — severely bit and .lacerated Florence Miles, aged six, a daughter of the plaintiff. ‘ ‘ That plaintiff,for the purpose of protecting the said child from the probable danger of contracting hydrophobia from the bite of said dog, and acting upon the advice of a local physician, killed said dog, severed the head therefrom and caused the same to be shipped as aforesaid for microscopical examination to determine whether said dog was affected with hydrophobia or rabies, a dangerous and dreaded disease which may be communicated to human beings, and which in most instances causes great suffering and certain death. “That defendant wilfully, negligently and wrongfully failed and refused to deliver said bucket to the consignee until the evening of the fourth day after the day of shipment, at which time said dog head was so decomposed that a microscopical examination to determine the presence or establish the absence of hydrophobia germs could not be successfully made, and plaintiff was thereby deprived of the only method known and recognized by medical science for determining whether the said dog was infected with germs of hydrophobia. “That plaintiff repeatedly communicated with the said hygienic laboratory by telephone, seeking information concerning the results of the intended examination, but each time was informed that no such shipment had arrived; and each time thereafter plaintiff went to def end-ant’s office at Bald Knob and urged its agent to investigate the delay, but was given no information or satisfaction by tbn defendant’s said agent, he appearing very indifferent about the matter. “That, on the account of the failure as aforesaid to determine the presence' or to establish the absence of hydrophobia germs in. said dog by means of a ¡microscopical examination, which failure was caused by the negligence of the defendant, plaintiff was then advised by his physician that the only reasonable course left for the protection of the said child from the probable dangers of hydrophobia would be to cause it to undergo a preventive treatment, which treatment is commonly and generally known as the Pasteur treatment for prevention of hydrophobia or rabies. ‘£ That plaintiff, acting upon said advice, took said child to the department of pathology of the University of Arkansas School of Medicine, located in the city of Little Rock, and caused it to undergo the said treatment, which treatment required a twenty-one days’ course and caused the said child much pain and suffering. “That plaintiff expended the sum of $127.50 for medical services and medicine, attendant for said child, hospital fees, board, railroad fare and other necessary items, including express charges on said shipment and telephone messages in trying to secure delivery thereof, all of which he was compelled to expend on account of defendant’s wilful negligence and wrongful failure and refusal to deliver said package within a reasonable time, and plaintiff further suffered much annoyance and inconvenience by reason of said default and suffered great anxiety and distress of mind on account of the pain and suffering of his said child by reason of said anti-hydrophobia treatment. “That plaintiff is entitled to the sum of $127.50 for money actually expended as aforesaid, and the sum of $500 for special and exemplary damages on account of defendant’s negligence as aforesaid. “ Wherefore plaintiff prays judgment for the sum of $127.50 on his first count, and for the sum of $500 on his second count, and for costs and for all other and proper relief. ’ ’ On the same day W. N. White filed an amended complaint against the American Bailway Express Company which is the same as the above complaint, except as to the name of the plaintiff and the name and age of the plaintiff’s child. The defendant filed a demurrer to the complaint in each case. The cases were consolidated by order of the court, and a demurrer to each complaint was by the court sustained. The plaintiffs , elected to stand on their amended complaints and refused to plead further. Whereupon the court dismissed the plaintiffs’ cause of action and gave judgment against them for costs.. Counsel have not cited us to a case similar to the one at bar, and, after a somewhat diligent search, we have not been able to find a case directly in point. Counsel in their respective briefs have ably discussed the general principles of law applicable to the case. It is not necessary to go beyond our own decisions to find a statement of the general principles governing suits for damages for breach of contract. This court has always intended to follow the old English case of Hadley v. Baxendale, 9 Exch. 354, on this subject. In Western Union Tel. Co. v. Short, 53 Ark. 434, the court said that the rule is correctly laid down in Hadley v. Baxendale, as follows:' “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself; or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of a breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants and thus known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in his contemplation the amount of injury which would arise g-enerally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.”' To the same effect see Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275. In determining the reasonable contemplation of the parties, it is proper to consider the nature and purpose of the contract and the attending circumstances known to the parties at the time the contract was executed, and those damages should be awarded which might reasonably have been expected to follow from a breach of the contract. In the case at bar the express company might have reasonably anticipated that plaintiffs would be put to the expense of the Pasteur treatment, if the package containing the head of the dog, which bit the plaintiffs ’ children, should not be promptly carried and delivered at the point of destination, and this, too, regardless of the fact that the dog might not have been rabid. It is commonly known that the Pasteur treatment diminishes the dangers by hydrophobia from the bites of rabid dogs. Under the allegations of the complaint, the express company knew, when it received the dog’s head for shipment, that the object of the analysis was to-ascertain whether or not the dog that bit the children was suffering from rabies. The .express company must have reasonably anticipated that the Pasteur treatment would not only be administered to the children if an analysis of the dog’s head showed that the dog was rabid, but that it would also be given as a precautionary treatment if the package was not delivered promptly so that an analysis of the dog’s head might be made. So it may be justly assumed that such damages were within the contemplation and purposes of the parties in entering into the contract, and that the breach of contract on the part of the express company was the proximate cause of the damages suffered by the plaintiffs in giving the Pasteur treatment to their children. Counsel for the defendant urged that, if the dog suffered with rabies, the Pasteur treatment would have been given in any event, and that the complaint is faulty because it does not allege that an analysis would have shown that the dog was not a rabid animal. The argument is faulty in this respect. Counsel do not take into consideration the fact that the plaintiffs made known to the defendant the object and purposes of the analysis, and the defendant might have anticipated that it would be necessary to give the Pasteur treatment, regardless of the fact of whether the dog was a rabid animal or not, if there was a violation of the contract by the defendant in respect to the prompt carriage and delivery of the package containing the dog’s head. The parties knew the purpose for which the package containing the dog’s head was sent, and might have reasonably anticipated that a 'breach of the contract would cause the plaintiffs of necessity to go to the expense of the Pasteur treatment, and that the breach of the contract was the direct cause of the damage suffered by the plaintiffs. This is a suit by parents for damages, and they can not recover for the physical suffering endured by their children. Neither can they recover damages for mental suffering. The parents did not receive any physical injury, and it is well settled in this State that mental suffering alone, unaccompanied by physical injury, can not be made the subject of an action for damages against the carriers. St. L., I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42; and St. L., I. M. & S. Ry. Co. v. Buckner, 89 Ark. 58. There was no element of wilfulness or statement of facts from which malice might be inferred. Hence there is nothing to justify the infliction of punitive damages against the defendant. St. L. S. W. Ry. Co. v. Evans, 104 Ark. 89, and St. L., I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261. It follows that the court erred in sustaining the demurrer to the complaint, and for that error, the judgment- will be reversed, and the cause remanded for a new trial.

Humphreys, J. Appellant instituted suit in the Grant Chancery Court against appellees for partition of the northeast quarter of section 21, township 5 south, range 12 west, in said county, alleging that he owned an undivided one-twelfth interest, Minnie Miller an undivided one-sixth interest, and Oneal Oxner, Fannie Boyd and Martha Oxner an .undivided one-fourth interest each in said real‘estate; that appellees inherited their several interests, and appellant acquired his by purchase. The prayer of the bill was for a decree of partition if it could be made without prejudice to the owners thereof, and, if not, that the land be sold and the proceeds divided according to said interests. Appellees filed answer, admitting the allegations of the bill as to ownership of the land by appellant and appellees in the proportions alleged, stating that the lands could be partitioned, praying for partition and the appointment of commissioners to divide same in kind among them according to the value of their respective shares. Pursuant to the pleadings, and by consent of the parties, the court rendered a decree of partition in kind, if the land could be divided without great prejudice to the parties, and appointed W. D. McDonald, S. F. Fielding and Geo. V. Griffith commissioners to divide the lands. After a view of the lands the commissioners formally reported, in substance, that the land could not be partitioned in kind entirely, and recommended that the timber be sold and the proceeds divided among the owners in proportion to their several interests in the land; that the southwest quarter of the northeast quarter be assigned to Fannie Boyd, the southeast quarter of the northeast quarter to Oneal Oxner, and that the north half of the northeast quarter be sold and the proceeds divided among Martha Oxner, Minnie Miller and F. O. McGehee, in proportion to their several interests in the land. Appellees filed exceptions to the report upon the ground that the location of the timber on the land, the topography and quality of the land warranted a division of the land in kind among the owners, and that it was unnecessary to sell the timber or any part of the land in order to make a division thereof. At the same time the attorneys filed a motion to set the decree of partition and the report of the commissioners aside upon the ground that they had represented one of the appellees, Minnie Miller, through mistake. Thereupon the decree and report of the commissioners were set aside, and, after Minnie Miller was made a party and proper service was had upon her, a decree was rendered and the commissioners reappointed. The commissioners made a second view of the land and reported that, on account of the timber being located very thickly at some places and very scatteringly at other places upon the land, it was impossible to divide all the land in kind, and that in their opinion it was necessary to sever and sell the timber from the land and divide the proceeds, and that in that event the forty-acre tracts designated in the former report might be assigned to Fannie Boyd and Oneal Oxner and the north half of the’ tract sold and the proceeds divided among Martha Oxner, Minnie Miller and F. O. McGehee according to their several interests in the land; that, unless their original report was adopted, it was impossible to divide all or any part of the land in kind without great prejudice to the parties in interest; that the only other alternative would be to sell the land in 40-aere tracts and divide the proceeds, which would give each owner an opportunity to bid on the forty acres he desired to retain. Appellees’ exceptions to the first report were renewed as to the second and sustained. The report was set aside, and the commissioners ordered to partition the land in kind according to the interests of each. Pursuant to the order, the commissioners valued each forty-acre tract, including the timber thereon, at $800, assigning to eacli .owner of a one-fourth interest 40 acres, to the owner of a one-sixth interest 26 2-3 acres, and to appellant, the owner of a one-twelfth interest, 13 1-3 acres. The report contained the following statement of the commissioners: “We in making said partition have tried to divide the land and timber under instructions of the court to the best of our knowledge and ability as to value and location. We in making this partition as set forth above believe it would be prejudicial to small land owners ■and would recommend that all the land be sold in 40-acre lots and the proceeds thereof prorated among the respective owners as their interests appear.” Appellant filed exceptions to that part of the report partitioning the lands in kind, alleging that the division in kind was contrary to the best judgment of the commissioners and prejudicial to the rights of the small land owners, especially to appellant, because in that locality a 13 1-3 acre tract was too small to possess a marketable value. Appellees filed an answer to the exceptions, and testimony was heard in support of and against the partition in kind, which resulted in a decree approving the division in kind and vesting title to the particular tract assigned to each in him or her. From that decree an appeal has been duly prosecuted to this court. Appellant’s first insistence for the reversal of the decree is that the first and second reports of the commissioners were set aside for the same causes. Section 8107 of Crawford & Moses’ Digest is cited in support of the contention. That section is as follow: “Upon good cause shown by either party, on the report being made and . returned to the circuit court, it may be set aside by the court, who may appoint new commissioners, who shall proceed in like manner as hereinbefore directed ; but the court shall not set aside a second report for the same cause for which the first report was set aside.” The section quoted relates to and is binding upon circuit courts in partition proceedings. This court ruled in the case of Moore v. Willey, 77 Ark. 317 (quoting syllabus): “While the statutory procedure in partition cases must be followed in a suit at law, such is not the case in equity, the statutory remedy being cumulative only. ’ ’ Appellant’s next insistence for reversal is that the partition in kind contained in the third report of the commissioners was a partition directed by the court and not a partition made in the exercise of the commissioners’ best judgment. This contention is based upon the assumption that a chancery court, in partitioning lands, is compelled to do so by the adoption of the report of the commissioners appointed by it to divide the land in kind. This is not the law. Commissioners appointed to divide lands in kind are arms or agents of the court for the purpose of rnaking a division under the order and direction of the court. It is the duty and province of chancery courts to partition lands among those interested therein justly and equitably upon proper petition and may use commissioners for that purpose, but are not required to accept as absolute a division made by commissioners. The division and report made by the commissioners can only be regarded as advisory to the court. Chancery courts may order a sale of property if necessary to effect an equitable division thereof among the owners upon evidence other than and wholly independent of a report of commissioners. Moore, v. Willey, supra; Glasscock v. Glasscock, 98 Ark. 151. Appellant’s last insistence for reversal is that the partition in kind made by the commissioners under direction of the court was prejudicial to him for the reason that the tract assigned to him was so small it was not marketable at a fair value in that locality. The evidence is in conflict as to whether the 13 1-3 acre tract assigned, to appellant would sell on the market for as much per acre as it would sell for if sold as a part of the, ydiole tract, or if sold in 40-acre tracts. The entire tract was appraised at $20 per acre. There was much evidence tending to show that the 13 1-3 acre tract would readily sell upon the market for as much as the appraised value- per acre of the 160-acre tract. In fact, appellees offered in open court to pay appellant $20 an acre for the tract, which he refused to accept. We have read the evidence carefully bearing upon the market value of the 13 1-3-acre tract, and are convinced that the finding of the chancery court to the effect that no prejudice resulted to appellant in the partition in kind is sustained by a preponderance of the evidence. The decree is therefore affirmed.

Hart, J. (after stating the facts). The judgment of the circuit court was wrong. At the time the bank failed it had made no appropriation whatever of the amount of the general deposit of Hughes towards the payment of any of Ms notes dne the bank. When the receiver was appointed, Hughes directed-him to apply the amount due him on general deposit by the bank to the payment of the note sued on first, and the balance to the payment of other indebtedness. The receiver had no right to refuse to make the appropriation as directed. This court has held that, the relation between a bank and a general depositor being that of debtor and creditor, if the bank becomes insolvent, a depositor who is also indebted to the bank may set off the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due the bank. Funk v. Young, 138 Ark. 38, and Steelman v. Atchley, 98 Ark. 294, As we have already seen, the record in this case shows that the bank did not appropriate the deposit of Hughes to the payment of any indebtedness due the bank until after Hughes had directed it to be applied to the payment of the note sued on. It is true that the note sued on was signed by Hughes and Bundle as his sureties. It is well settled in this State that a debt due from a sole plaintiff to one of several defendants may be pleaded under our statute as a set-off by the defendant to whom such debt is due. Burton v. Blytheville Realty Co., 108 Ark. 411, and Rush v. Citizens’ National Bank, 114 Ark. 170, and cases cited. It follows from the facts stated that Hughes had a right to set-off against the note sued on his individual indebtedness to the bank, and the court erred in directing the jury to find a verdict for appellee. For that error the judgment will be reversed, and the cause will be remanded for a new trial.

McCulloch, C. J. Appellant owns and operates a short-line railroad in Logan County, Arkansas, between the towns of Paris and Scranton, connecting at Paris with the road operated by the Arkansas Central Railway Company, running from Paris to Fort Smith. In the year 1919, appellee delivered cotton to appellant at Scranton for shipment to Fort Smith, and appellant issued bills of lading for through transportation over appellant’s line from Scranton to Paris, thence over the line of the connecting carrier to Fort Smith. These bills of lading contained a stipulation to the effect that appellant’s agreement was only to transport the cotton over its own lines, and would not be liable for loss, damage or injury not occurring on its own line of road. This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by de preciation in the weight and value of the cotton and expense of rebaling the same resulting from alleged delay and exposure of the cotton to inclement weather while in transit. The damages were laid in the sum of $1,933.62, and the verdict of the jury awarded damages in the sum of $1401.43. The testimony “adduced by appellee was sufficient to establish the fact that the cotton was delivered to appellant at Scranton in good condition, and that it was considerably damaged and depreciated in value when it arrived at Fort Smith; that the cotton had to be repiclced and re-baled — ’“reconditioned”—as the witnesses term it, and that the damage amounted to the sum named in the complaint. The principal ground urged for reversal is that, under the clause in the bills of lading exempting the initial carrier from liability, except for loss occurring on its own line, there can be no recovery, for the reason that the evidence does not show that any loss occurred while on appellant’s line of railroad, and that the court not only erred in refusing to give a peremptory instruction, but also erred in refusing to give other requested instructions submitting that issue to the jury. In making this contention, counsel either overlooked or ignored the statute of this State, patterned to some extent after the Federal statute, making the initial carrier issuing the bill of lading liable for any loss or injury occurring during transportation over the line of a connecting carrier. Crawford & Moses’ Digest, § 924. This statute provides that “when a railroad or other transportation company issues receipts or bills of lading in this State the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be liable for any loss or. damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may pass, and the common carrier, railroad, or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company through whose negligence the loss, damage or injury may be sustained.” Most of the numerous assignments of error are settled by the application of this statute, for the case was apparently "tried below by appellant’s counsel on the theory that there was no liability unless it was shown that the loss occurred on appellant’s own line. It is also insisted that the court erred in refusing to make the Arkansas Central Railway Company, the Director-General and the Missouri Pacific Railway Company, defendants. It is not shown why the Director General was sought to be made a party, but it is contended that the Arkansas Central Railway Company was a proper party, so that appellant could have judgment over and against it on proof that the loss occurred on its line. The statute does not require that the connecting carrier be made a party, but merely declares the liability of the connecting carrier to the initial carrier. There was no error in refusing to make the' connecting carrier a party, for under the statute the right of action against the connecting carrier is preserved. Error is assigned in the refusal of the court to give several instructions relating to the question of congestion of traffic to the extent that there was an interference in obtaining cars for shipment of commodities. This is not a suit for failure to furnish cars, but is one for damage which occurred during transportation where the carrier had received the commodity for transportation and given a bill of lading. Under those circumstances, the carrier cannot excuse itself by showing difficulties or interferences in procuring cars for shipment. It is contended that the court erred in refusing to give the following instruction: “When the injury for which compensation is sought was occasioned by different causes, for only one of which the defendant is individually responsible, the burden of proof is upon tlie plaintiff to distinguish the damage resulting from the cause for which the defendant is responsible from thalj resulting from the other causes; and if the plaintiff has failed-in this, your verdict should be for the defendant; and damages cannot be proved by the opinion or conclusion of witnesses.” This instruction is erroneous, because it ignores the question of liability for1 concurring negligence. Payne v. Orton, ante p. 307. There was some evidence introduced by appellant tending to show that the cotton was damaged before delivery to the carrier and not after; but this instruction does not submit that issue, and the court was correct in refusing to give it. Again, it is urged that the court erred in refusing to give certain requested instructions in regard to delay caused by an embargo laid by the compress company at Fort Smith. It is sufficient to say in regard to these assignments that there was no evidence to justify the submission of that issue to the jury. There are other assignments, which we do not think are of sufficient importance to discuss in detail, as they are covered by the principles hereinbefore announced. The judgment is affirmed.

McCulloch, C. J. This is an action instituted by the plaintiff, Mrs. Abrams, against the defendants, Hornor Transfer Company, a copartnership, to recover the value of certain articles of per&onal property alleged to have been received from the plaintiff by the defendants at their warehouse and which were, not returned on demand. The defendants in their answer denied that they were engaged in the business of operating a warehouse or that they received plaintiff’s property in that capacity, and denied that the property was lost by reason of any negligence on the part of the defendants. There was a sharp conflict in the testimony concerning the circumstances under which defendants received plaintiff’s property and the agreement between them with respect to it. It is uncontradicted that some time during the month of January, in the year 1918, plaintiff received at Helena certain bundles or packages containing the articles in controversy, which had been shipped to her from Cincinnati, Ohio. The packages were shipped to Helena by steamboat. The defendants were agents at Helena for the steamboat company and received all consignments of freight to the city of Helena. Defendants were also engaged in the transfer business in the. city of Helena, hauling goods and other property for hire. On receipt of the bill of lading and on the arrival of the goods plaintiff’s husband gave the bill of lading to defendants and the goods were placed in the upper story of the elevator building, defendants having their office in the lower story. The contention of plaintiff is that the defendants accepted the goods for hire and expressly agreed, in consideration of the payment of the charges, to keep the goods as warehousemen. On the other hand, defendants contend that they were not engaged in the warehouse business, but were merely agents for the steamboat company and were engaged in hauling for hire, and that at the request of plaintiff and merely for her accommodation, they permitted her to place the goods in the second story of the elevator building without any agreement with respect to safely keeping the same. They contended that they did not operate a warehouse there, but had permitted several persons to temporarily place goods in the second story of the elevator building, and one of the defendants testified that they kept a watchman on guard at the building and that he visited the second story of the building occasionally to see that everything was in order, and that there was no combustible matter, so as to avoid the outbreak of fire. Plaintiff did not discover the loss of the goods until about a year after they had been placed in the building, and then made immediate demand for their return or payment, which was refused, and this suit was instituted. The property consisted of a davenport, of the alleged value of $65, a roll of bedding, towels, kitchen utensils, scarfs, chafing dish, an electric iron, and certain other articles, the whole being of the alleged value of $231.50. The court, at the request of the defendants, submitted to the jury the question whether defendants received the property as warehousemen to keep the same for hire, or whether merely as a gratuitous bailee. The court told the jury, in an instruction given at the request of defendants, that, if they permitted the plaintiff to store the goods in the building for accommodation only, without compensation, the only duty that defendants owed the plaintiff with reference to the goods was to exercise slight degree of care in protecting the same, and that if the goods were stolen from the building while defendants were exercising such care there would be no liability. The verdict being in favor of the plaintiff, we must treat it as having settled in plaintiff’s favor the question whether or not defendants received the goods as bailee for hire. But the court went further and gave the following instruction, over the objections of defendants: ‘ ‘ If, on the other hand, you find from the evidence in this case that the defendant company was a bailee for hire, that is, that the goods were stored by. plaintiff with the defendant company and the defendant was to make a charge, or to charge for the storage of the goods, and they were lost while in the possession of the defendant company, then you will find for the plaintiff for the value of the goods, as shown by the evidence.” This instruction told the jury, in substance, it will be observed, that if the defendants were bailees for hire, and if the goods were lost while in the possession of the defendants, the latter were liable for the value of the goods. It was error, we think, to give this instruction, for, even though the defendants were bailees for hire, they were only liable for negligence. Bertig y. Norman, 101 Ark. 75. It is true that, according to the testimony adduced, the defendants were placed in exclusive possession of the property, and it devolved upon them to explain the loss before the plaintiff could be put upon proof as to negligence. Phoenix Cotton Oil Co. v. Pettus & Buford, 134 Ark. 76. But there was evidence adduced bv the defendants tending to explain the loss of the goods and also tending to show that the same were lost without negligence on the part of the defendants. In other words, there was legally sufficient evidence to warrant a submission to the jury of the question whether or not the loss was explained and occurred without fault or negligence on the part of the defendants. This being true, it was the duty -of the court to submit those issues to the jury, rather than take them from the jury by the instruction given, which, in substance, told the jury that the defendants were liable if they held the goods as bailees for hire. For the error in giving this instruction, the judgment must be reversed and the cause remanded for a new trial. It is so ordered. Humphreys, J., not participating.

Wood, J. The appellant instituted this action against the appellee to recover judgment on an instrument executed February 28, 1918, and due November 1, 1918. The first part of the instrument was a regular promissory note in the sum of $200 given as the. consideration of the purchase price for a certain brown mare. The latter part reserved title in the seller to the animal until the purchase price was paid, and contained other provisions evidencing the contract of sale. The appellee answered admitting the execution of the “note” and seti up by way of counterclaim that the “note” was a part of the purchase price of $400 for two horses that the appellee had bought from the appellant; that $200 had previously been paid by check; that before any of the purchase price was paid or the “note” executed the appellee directed appellant’s at tention to the fact that one of the horses appeared sick; that appellant verbally warranted that the horses were sound. ' The appellee alleged that he relied upon the warranty and accepted the horses and gave his check and note for the purchase price. He further alleged that one of the horses at the time was diseased and unsound, and died in less than twenty-four hours thereafter, to tile damage of appellee in the sum of $200. Appellee further alleged ihat in April of that same year he purchased of the appellant a horse for which he paid the sum of $15Q, and that before appellee accepted the horse appellant warranted the same to be sound in every way; that the horse was not sound and died in about seven days after the purchase; that appellee was damaged in the sum of $150 by reason of the death of this horse. He prayed judgment on his cross-complaint in the sum of $350 and asked that the judgment offset the note held by appellant in the sum of $200 and that appellee have judgment over against the appellant in the sum of $150. The appellant answered the cross-complaint and denied all of its allegations; denied that the horse for which the note was given was' unsound or diseased; denied that he warranted the same to be in good condition. He alleged that the horse for which the “note” was given was worth $200, and that the appellee was present, examined the horse and was satisfied with same and made no complaint until after the “note” in suit became due. He also denied that he warranted the second horse purchased by appellee from appellant in April of the same year for which the appellee paid $150. He alleged that this second horse was sound, and that the appellee was present, examined the horse, and made no complaint of same until after the institution of the suit. Appellant prayed that the counterclaim of appéllee against him be dismissed, and that he have judgment as práyed in his complaint. The testimony of the appellant was to the effect that he sold appelle horses, and that appellee was due him the sum of $200 on the purchase price as evidenced by appellee’s “note,” the instrument upon which the cause of action is based. He stated that not a word was said at the time about the unsoundness of one of the horses. Appellant guaranteed the horses to be serviceable and sound on delivery. He stated that Chapman knew as mucli about a horse as appellant; knew a good horse from a bad one; that when the horses were taken from appellant’s stables they were all right; that in.about three weeks, or maybe longer, the appellee came back end told the appellant that one of the horses had died. Appellant told, the appellee that he was sorry to hear of the loss of the horse, and then sold him another horse (worth $250) for $150, so -that he would lose $100 on the price of that horse; that the appellee agreed to .this and gave the appellant a check for $150 and seemed satisfied. Appellant heard no more from the appellee Until the note became due and the appellee refused to pay the same. The appellant stated thal he would not sell unsound horses; that he had a man paid especially to look after his barn. Appellant “had the reputation of selling the best mules and horses in the country.” The appellant did not owe the appellee anything because when he delivered the horses to him they were sound. When the appellee came back and told appellant that he had lost one of the horses, .appellant agreed to let him have a $250 horse for $150. Nothing was said at the time about this horse not looking right. The appellee gave appellant a check for $150 for the last horse, which was in settlement of the whole matter between them, and appellee said that he was satisfied. The testimony of the appellant- was corroborated by another witness who was in the employ of the appellant at the time and was present when the sales were made. The appellant guaranteed that the horses were serviceable and sound at the time they were delivered, and so far as witness knew they were sound. When appellee bought the last horse of appellant, the purchase price wa-s $250, and appellant agreed to let appellee have the same for $150 and appellee was perfectly satisfied. The testimony of the appellee tended to sustain the allegation of his counterclaim. He stated that on the day of the first purchase he went away to St. Louis and was gone about a week, and upon his return one of the horses was dead. He notified the appellant to that effect, -and appellant stated that he would get appellee another horse. The matter drifted along for some time, and appellant called the appellee over the telephone, stating that he had a horse that would match. Appellee then went to see appellant to get another horse and reminded appellant that he was to get appellee a horse to take back in the place of the one that had died. Whereupon the appellant replied that he had to have $150 on the horse that he then proposed to let appellee have. He stated that he would make appellee a special price of $150. Appellee had to have the horse, and appellant said he would guarantee it absolutely. Appellee then took the horse home, and it died in about a week. Appellee thought that he notified appellant, but did not know-whether it was immediately after this last horse died or not. The appellant wrote the appellee when the note was due, and also called him over the telephone and asked why the note was not paid. Appellee told appellant he had guaranteed the horses, and -that they were both dead, and that appellee was willing to lose one if appellant would lose the other. Appellant replied that appellee would have to pay the note. Appellee then testified that at the time of the sales appellant'guaranteed the horses; that he told the appellee at the time he purchased the last horse that if it died it was his (appellant’s) loss, and that it was upon these representations and guaranty that appellee took the horses. Another witness on behalf of the appellee testified, tending to corroborate the testimony of the appellee to the effect that the appellant at the time of the sale of the horses in February guaranteed the same to be absolutely sound. The court instructed the jury in part as follows: ‘ ‘ The plaintiff alleges, in rebuttal of the rights of the defendant to recover on the counterclaim, that, in the sale of the third horse, that in that transaction certain concessions of price amounting to the sum of $100 were allowed in the sale of this horse, by which all liability by reason of any differences of any liabilities that might arise in the sale of the two horses made on the 28th day of February should be eliminated; and that it was agreeable and acceptable and satisfactory to the defendant in this case. This the defendant denies, but claims that the sale was made to him in the direct course of business, and on a guaranteed price of $150. The question for you to decide here first is, what was the warranty as between these two parties? If you find from the evidence that plaintiff’s contention is true, as to his warrant}' of the horses only, as to the soundness at the time of delivery, and found the horses sound when he delivered them to him, then the defendant must fail on his cross-complaint. If you find from the evidence that plaintiff warranted the horses as to not only the.soundness of them at the time of delivery'but a reasonable time thereafter, and the horses were not sound, and died from the result of a disease they were then infected with, then the defendant would be entitled to recover on his cross-complaint.” The court told the jury that the burden was upon the appellee to establish the allegations of his cross-complaint. The appellant objected generally to each of the instructions of the court, and he complains-here that the instructions set out above assume that the plaintiff (appellant) admitted liability on the warranty of the first horse, when in fact the plaintiff (appellant) in his reply and in his testimony denies that-there was any such warranty. No specific objection was made to the language of the instruction of which appellant here complains. The instruction, when considered as a whole, is not open to the' objection which appellant urges. When the latter part of the instruction is read, it is clear that the court did not intend by the language of the first part (to which appellant now objects) to assume that there was no issue before the jury as to the liability of the appellant on the alleged warranty of the soundness of the first horse. On the contrary, the instruction, fairly construed, submits to the jury the issue -as to whether or not the appellant was liable on any warranty as to the soundness of the horses at the time of their delivery and for a reasonable time thereafter. If appellant conceived that the instruction was faulty in assuming a fact not raised by the pleadings or the testimony, he should have specifically directed the attention of the court to it. Wright v. Midland Valley Ry. Co., 111 Ark. 196. The appellant and his corroborating witness testified that the appellant did warrant that the horses were sound at the time of the delivery, and the appellee testified in effect that the appellant absolutely guaranteed the horse, and, if it died within a reasonable time, it was to be appellant’s loss, and not appellee’s. The jury might have found from the testimony that the horses in controversy were sold by the appellant and bought by the appellee in the ordinary course of business. The testimony of appellant himself showed that he was engaged in the business of buying and selling horses, and prided himself on the reputation he had acquired of “selling the best mules and horses in this country.” The appellee’s testimony tended to prove that he did not agree to pay appellant the sum of $250 as a purchase price of the last horse, and that he paid appellant $150 in cash, and that appellant allowed appellee $100 in settlement of his claim on the warranty of the horse that died. The appellee testified that such “was not the deal and trade.” He paid appellant $150 as the straight-out purchase price; that appellant cut down the price on account of appellee’s having purchased three horses. But again, if the appellant conceived that there was nothing to warrant the submission of the issue as to ■whether the last purchase was “made in the direct course of business,” he should by specific objection have called the court’s attention to this phraseology of the instruction. The pleadings raised the issue as to whether or not there was an oral warranty as to the soundness of the horses, and the testimony on behalf of the appellee sustaining this issue was introduced without objection. The appellant is, therefore, not in an attitude to complain because the court submitted such issue to the jury. Indeed, appellant himself adduced testimony and presented prayers for instructions on that issue, which prayers were modified and given. The appellant here, for the first time, urges the objection that the testimony and instructions of the court submitted the issue of an oral warranty contrary to the writing which evidenced the contract of sale between the parties. By not raising this issue in the court below, he must be held to have waived it, and the contention that an oral warranty has been engrafted on a written contract 'of sale cannot avail for a reversal of the judgment by this court. Frauenthal v. Bridgeman, 50 Ark. 348; 22 Corpus Juris, p. 1295. There is no error in the rulings of the court. The judgment is therefore affirmed.

Smith, J. J. T. Meyers was ordered by the circuit court of Crawford County to pay to the clerk of that court $400 misappropriated by Meyers, the same being the proceeds of the sale of certain personal property belonging to the estate of T. C. Nall, deceased. Meyers failed to make the payment, and was cited for contempt, and on a hearing of that charge was fined $100 and sentenced to thirty days in jail. From this order of the court he prayed an appeal, and was allowed bail in the sum of $500. Meyers absconded, and the appeal was never perfected, and the bond was declared forfeited, and was paid by the sureties thereon. Thereafter the administrator of the Nall estate filed an account with the county court asking that, after the fine and costs of Meyers were paid, the balance of this fund be turned over to him as administrator to reimburse the estate for the money which Meyers had appropriated. The county court disallowed the claim, as did the circuit court on appeal. Hence the appeal to this court. The argument for the reversal of the judgment is that the bond was in the nature of a civil bond, and was not the property of the State; that, after the State had realized her claim out of it, that is, the fine of $100 and the costs, the balance ought to be applied to the payment of the claim of the estate against Meyers. We do not concur in this view. Appellant is mistaken in the character and purpose of the bond executed by Meyers and his sureties on the appeal from the order of the circuit' court adjudging him to be in contempt. The judgment directing Meyers to pay money to the clerk of the court has not been satisfied. It is still a subsisting -judgment, subject to be enforced through the usual processes of the law. The order of the court imposing a fine and prison sentence on Meyers has not •been complied with, and is a judgment which may still be enforced if Meyers is again taken into custody. If such were not the case, one sentenced to jail for contempt might employ this method to relieve himself of that punishment. The bond ran in the name of the State, and was for the benefit of the county in which the sentence was imposed. The sentence for contempt was imposed because of Meyers’ contumacious conduct in refusing to obey the order of the court by paying over the money. It is true, of course, as insisted by appellant, that the purpose of the original proceeding was to compel Meyers to disgorge; but, as that proceeding progressed, Meyers became guilty of contempt by defying the order of the court, and it was for this defiance that he was fined and sentenced to jail, and as his bond operated to stay the enforcement of that sentence, its penalty, when collected, inured to the' benefit of the county in which the sentence was imposed. Sec. 10183, C. & M. Digest. The judgment of the court below is affirmed.

Wood, J. The appellant was indicted on July 19, 1921, for the crime of murder in the first degree in the killing of one T. B. McCain. He was tried on the 26th day of July, 1921, and convicted of murder in the second degree. The defendant filed a motion for continuance, in which he set up that “he was a stranger in the community without friends and without funds and had not had an opportunity to prepare his case for trial; that, being confined in jail and being a stranger, he did not know the names of certain witnesses who could and would give testimony material to his case; that the witnesses are strangers in the community; that upon the proper investigation their identity can be established and their attendance had at court; that the driver of a service car is a material witness in this case, but that the defendant does not know his name, but can find said witness if. an opportunity is given him; that this witness, if present, would testify that he took the defendant prior to the time of the alleged killing from the neighborhood where the deceased is alleged t'o have been killed and drove defendant over to the rooming house of Dr. Tutt about two miles distant and left him there; that the defendant is informed and believes that Blondie Gordon would testify, if present, that he saw the defendant leave the valley where the deceased is alleged to have been shot and killed an hour or longer prior to the time the shooting is said to have occurred; that the defendant was not anywhere near or about the premises where the deceased is said to have been shot and killed; that the deceased was alleged to have been killed something like an hour after the defendant went to the home of Dr. Tutt; that witness is a resident of Breckenridge, Texas, and the defendant, if given time, can procure his attendance, or take his deposition; that the evidence of the car driver'■ and the evidence of Blondie Gordon is material to the issue in the case; that the defendant cannot make the proof by any other witnesses at this time known to the defendant; that there are other witnesses who could testify to the same facts, but the names of same are unknown to him.” The court overruled the motion for a continuance, and this is assigned as error in one of the grounds of appellant’s motion for a new trial. The motion for continuance was duly verified, but it will be observed it does not state that the affiant himself believed that the facts which he states the witness, if present, would testify to, were true. This was necessary. Secs. 1270, 3130, Crawford & Moses’ Digest; Burris v. Wise, 2 Ark. 33, 40; State Life Insurance Co. v. Ford, 101 Ark. 514. Moreover, the motion states that one of the absent witnesses whose presence was desired was a resident of the State of Texas, and therefore beyond the jurisdiction of the court. The motion does not set up facts showing how the attendance of this witness could be had- at the next term of court. It was not an abuse of the court’s discretion to overrule the motion for continuance on account of the absence of this witness. C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509; Hamilton v. State, 62 Ark. 543; James v. State, 125 Ark. 269. The appellant also contends that if he was guilty of any offense it was murder in the first degree, and that the verdict is therefore contrary to the law and the evidence. There was testimony to warrant the jury in returning a verdict against the appellant for murder in the first degree. The appellant is not in an attitude to complain because the jury found him guilty of a lesser degree of homicide when the testimony would have justified their finding him guilty of a higher degree. Webb v. State, ante p. 75; McGough v. Slate, 113 Ark. 301; Bruce v. State, 68 Ark. 310; Allen v. State, 37 Ark. 433. The appellant proved by the sheriff of the county that some one tried to get him to put a prisoner charged with grand larceny in the same cell with appellant in order that a confession from the appellant might be obtained; that the sheriff refused the request, telling the party that he would not believe anything that the person accused of grand larceny would say. The appellant complains here because he says that the above testimony shows an attempt on the part of the State to take an unfair advantage of appellant. The above testimony was elicited by the appellant himself. Furthermore, it does not show or tend to show that any unfair advantage was attempted to be taken of the appellant by the State. It was not shown who the party was that made the request of the sheriff, and certainly there is nothing in this testimony to connect the prosecuting attorney or any one .representing the State with an effort to procure a confession from the appellant. Moreover, the appellant did not make the complaint he here presents as one of the grounds of his motion for a new trial. There is nothing in this upon which to predicate error in the rulings of the trial court. Appellant next contends that the court erred in permitting one witness, a negro by the name of Hodge, who was accused of robbery and who was in jail at the same time with appellant, to testify that he heard appellant acknowledge to one Slim that he (appellant) had killed McCain. No objection was made to this testimony at the time it was offered, and the ruling of the court in permitting it is not assigned as error in appellant’s motion for a new trial. So there is nothing in this contention upon which error can be predicated. The appellant argues that the court erred in permitting witnesses C. A. McCain, J. D. Williams and A. H. • Lewis, to testify to statements made by the deceased after he was shot. C. A. McCain, the brother of the deceased, testified concerning this that he saw his brother after he was shot when he was being taken from the automobile to the hospital. His brother lived about twenty minutes after' he got to the sanitarium. He stated that he supposed his brother realized that he was going to'die. Witness said to his brother: “Who killed you, Tal?” and his brother replied, “The man who lives behind the barber shop shot me.” The witness further testified that his brother T. B. McCain “couldn’t talk loud, but he talked well enough to let you know he knew he was going to die.” The witness was then asked who lived behind the barber shop, and stated that it was B.lackey Freeman, the appellant. Witness Williams testified that he was about the first one to get to McCain after he was shot. McCain told those who were at'his side soon after he was shot that the man running around the building after shooting him was Blackey Freeman. Some one remarked that McCain was not hurt much, and witness tore his clothes back and saw that he was shot with buckshot. Then McCain remarked that he was iu pain, and-wanted to get to a sanitarium, and called for his brother. Witness Lewis testified that he drove the car in which T. B. McCain was taken to the sanitarium. He was asked, “What if any statement did McCain make to you as to who killed him?” and answered, “When he was coming along through the pine thicket, some men were hanging on the side of the car, and I told them to get off. One of them had a flash light, and as I looked back over the side I says, ‘T. B., who shot you?’ and he said, ‘The man at the back of the barber shop — the man with the white hat.’ ” The witness further stated that McCain told witness that the man wiio shot him lived “to the back of the barber shop,” that the man had on a light shirt and a pair of khaki pants, and said, “For God’s sake, don’t let him get away.” This witness stated that McCain lived about twenty or twenty-five minutes after he got to the sanitarium; that his clothes were open, and witness saw the blood oozing out of the holes made by the shot. The appellant did not save any objection to the above testimony at the time it was offered. Therefore, the cause could not be reversed on the assignment of error in the ruling of the court in permitting this testimony to go to the jury. See Lisko v. Uhren, 130 Ark. 111. Furthermore, even if proper objection had been made to this testimony at the time it was given, the court did not err in allowing it to go to the jury. The fact that T. B. McCain died within eighteen or twenty minutes after he was wounded, having Deen shot by fifteen or eighteen buckshot in his side or stomach, and that he talked loud enough to let his brother know that he, T. B. McCain, knew that he was going to die; that his person was exposed so that he could see Ms wounds; that the blood was flowing from these wounds, and that in response to a question as to who killed him he replied naming the appellant, are all circumstances which justified the court in holding that the testimony was competent. These circumstances certainly tended to prove that McCain at the time he made the declarations was conscious that death was impending, and that he had no hope of recovery. Rhea v. State, 104 Ark. 162, 176, and cases there cited. It is next insisted by counsel for appellant that the court erred in permitting witness Jack Davis to testify on cross-examination, over the objection of appellant, that Bill May conducted a rooming house and dance hall; that the house had quite a few women in it. Witness stated that he was living there at the time with his wife. He was asked if most of the women living there were not lewd women and replied. “I can’t say— it is a dance hall.” He stated that he moved away a day or two after the trouble. There was nothing in this testimony prejudicial to appellant. It is next urged that the court erred in permitting the sheriff to testify relative to finding an automatic pistol and some shells in the cell occupied by the appellant under the cover of the bed where the appellant slept. The sheriff further testified that he did not know how the shells got there; that the appellant said he didn’t know anything about them. Two of the appellant’s friends had visited him that day. The witness, upon the information he received, searched the cell and found the gun. The appellant objected to the above testimony unless the State would make the witness its own witness, which the State did. The appellant, therefore, is not in an attitude to complain of the ruling of the court, even if the testimony were incompetent, but the testimony was clearly competent. Although a weak circumstance, it was one which the jury had the right to consider in passing on the credibility of appellant as a witness in his own behalf. It is last contended that there is no testimony to sustain the verdict. It could serve no useful purpose to set out and discuss the testimony in detail bearing upon this issue. What we have already set out in the way of the dying declarations of McCain was competent evidence, and this, together with the other facts adduced, was amply sufficient to sustain the verdict. The judgment is therefore correct, and it is affix med.

Hart, J. (after stating the facts). It'appears from the record that the Douglass Coal Company transferred their mining lease, and sold to the defendant, HarbottleBailey Coal Company, their mine fixtures on the'6th day of November, 1918. At that time the Douglass Coal Company was operating its mines under an agreement with the St. Louis, Iron Mountain & Southern Railway Company for the construction of a spur track upon which to load coal from their mine. The spur track was constructed by the Douglass Coal Company under an agreement with the Railway Company and extended out on the land of the Douglass Coal Company 92 feet. On the 6th of November, 1918, the Douglass Coal Company, a partnership, transferred their interest in their agreement with the railway company to the defendant. It is claimed by counsel for the plaintiffs that this transfer is void because, under the terms of the agreement between the railway company and the Douglass Coal Company, the latter could not assign their interest in the contract without the written consent of the railway company. This provision, however, was evidently inserted for the benefit of the railway company and might be waived by it. The railway company permitted the defendant to use the spur track under the terms of the original agreement between the railway company and the Douglass Coal Company. It thereby waived the provision of the contract that no assignment thereof should be made without the written consent of the railway company. Therefore, the defendant succeeded to the rights of the.Douglass Coal Company in the contract with the railway company and had the right to the exclusive use .of the spur track in question. The plaintiffs were permitted to load coal from their mine on- cars placed on this spur track under a verbal permission to do so. This was revocable at tbe will of tbe party granting it. It does not appear that the Douglass Coal Company or tbe defendant ever entered into an agreement Avith tlie plaintiffs or their grantors to use the spur track to load their coal on cars for any definite length of time. According to the evidence for the defendant, the plaintiffs were permitted to use the track so long as it did not interfere with the business of the defendant. When the business of the defendant increased to such an extent that it was necessary for it to use the spur track at all times to load' its own coal, it refused to alloAv the plaintiffs to use it any longer to load their coal. This the defendant had a right to do, and the plaintiffs had no right to- use tlie spur track after their license to use it was revoked by the defendant: As we have already seen, the contract between the railway company and the Douglass Coal Company for the construction and use of the spur track was transferred by the Douglass Coal Company to the defendant, and the latter continued to operate its coal mine and use the spur track under the provisions of the agreement. The railway company, having consented to the transfer, is in no attitude to object that the transfer was not in writing, and it does not do so. The plaintiffs have no right to object; for they are not parties to the contract, 'and, no matter how great their necessities may be, they have no right to use the spur track to load their coal unless by the consent of the defendant. The spur track is a private one, and not an industrial track open to the use of the public. Therefore,- the court erred in making any finding in favor of the plaintiffs, and the decree will be reversed with directions to the chancery -court to dismiss the bill of the plaintiffs for want of equity.

Wood, J. This is an action by the appellee against the appellant to recover damages for alleged personal injuries. The appellee alleged in substance that the appellant is a corporation doing business in Arkansas and operating a coal mine at Hartford; that appellee, on the 21st of July, 1920, while working in the mine, was injured by coming in contact with a wire charged with electricity, which wire, through the negligence of appellant, had not been insulated or protected in any way, but left exposed in a manner to be dangerous to the employees; that the appellee, without any fault or carelessness on his part, while engaged in the discharge of his duties, came in contact with the same, causing his injuries, which he set forth in detail, to his damage in the sum of $20,000, for which he prayed judgment. The appellant filed a petition and bond, which wrere in due form, for removal of the cause to the United States District Court. The trial court denied the petition, to which appellant duly excepted. This presents the first question for our consideration which must be determined by the decisions of the Supreme Court of the United States. The question has been settled by the decisions of our own court and also by the decisions of the Supreme Court of the United States adversely to appellant’s contention. St. L. S. & F. R. Co. v. Kitchens, 98 Ark. 507; C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Central Coal & Coke Co. v. Graham, 129 Ark. 550; Pekin Cooperage Co. v. Duty, 140 Ark. 135; Boston, etc. Mining Co. v. Montana Ore Co., 188 U. S. 632; Ex parte Wisner, 203 U. S. 449; In re Winn, 213 U. S. 458. The petition for removal alleges, among other tilings, “that within the meaning of the removal act of Congress your petitioner has a venue residence botti in the Eastern District of Arkansas and in the Western District of Arkansas, and may be sued in either district in the Federal courts thereof.” It is further alleged that the appellant “has a service agent in the State of Arkansas as required by the laws of this State upon whom service of process may be had, and that under the law of Arkansas the appellant could be sued by the appellee in the United States District Court at Little Bock and also at Ft. Smith.” Our statutes require a foreign corporation to designate its general office or place of business in the State and to name an agent upon whom process may be served (Sec. 1826, C. & M.). And also requires such corporation to consent that service of process may be had upon any agent of the company or upon the Secretary of State. (Sec. 1827, C. & M.) These statutes prescribe the conditions upon which foreign corporations can do business in this State, and were not intended to, and do not, confer a local, State or county residence upon them. These statutes were intended to provide remedies for residents of this State against foreign corporations, or corporations that have no residence in and are not inhabitants of this State. Sec. 11, article 12 of our Constitution as to foreign corporations authorized to do business in this State among other things provides: “As to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State.” And section 1828 of Crawford & Moses’ Digest provides among other things: “Such corporations shall be entitled to all the rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar' corporations formed and existing under the laws of this State.” But the above provisions do not make foreign corporations residents or inhabitants of this State in which they are authorized to do business. Our statutes designating the agents and fixing the forums in which foreign corporations may be sued do not take away any of the rights guaranteed to foreign corporations under our Constitution. They relate only to the remedies provided for those who may have causes of action against them in this State. See American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524. “Foreign corporations have their legal existence and are located within the boundaries of the State under whose laws they are organized.” Pekin Cooperage Co. v. Duty, supra. Neither the appellee nor the appellant was a resident of the Eastern Federal District of Arkansas where the action was brought. Since, therefore, the appellant was not a resident or inhabitant of the Eastern. Federal District of Arkansas, but had its domicile or residence in a foreign State, it had no right to remove the cause of action under the removal acts of Congress. 5 Fed. Stat. Ann. p. 16 Sec. 28; 5 Fed. Stat. p. 486, § 51 (Judicial Code). After the petition for removal of the cause was denied, the appellant answered and denied that the appellee was injured in the manner set forth in his complaint and also denied specifically the allegations of negligence contained therein, and set up the affirmative defenses of contributory negligence aiid the assumption of risk on the part of the appellee. The trial resulted in a verdict and judgment in favor of the appellee in the sum of $5,000. The appellant contends that the evidence was not sufficient to sustain the verdict, and that the trial court erred in refusing to give a peremptory instruction directing them to return a verdict on the above issues in its favor. The facts developed at the trial on these issues are substantially as follows: The appellee was working in the appellant’s coal mine No. 4 in Sebastian County, Arkansas. He was driving what was known as the “fourteenth east entry” loading coal out of that entry. Two men were working together. The entry was being driven so as to prepare for rooms and develop the airway. The coal in the entry is undercut by a coal machine. It is then shot down by the shot-firer and removed by the diggers. The electricity is conducted to the machine by copper wires. The row of posts carrying the wires was about three feet from the lower rail of the dip switch. The dip switch turned off from the track into the back entry to air course and goes down the heading. Canvas curtains were attached to the same posts that the wires were attached to, but not pn the same side of the post that the wires were on. These curtains were put up to block the air currents and turn them into the working places. The wires are put on the posts, the positive wire on one side and the negative on the other. The posts bearing the wires are placed between the lower rib, or wall, and the track. The dead or return wire is on the side of the posts next to the track, and the live wire is on the other side. The. live wire was extended down the track something like ten or twelve feet further on the posts than the dead wire. There was no purpose in so extending it. It was not worth anything from the point where the dead wire ended to the live wire’s extended end, but, so far as the electricity was concerned, it was just as dangerous beyond the end of the dead wire as it was back of it. The appellee did not know before his injury that the live wire was thus extended. The appellee had put wires in the slope air course, but had never stretched one inch of wire in the fourth east entry, unless it was up at the fourteenth east air course. The fourteenth east entry branches off from the slope. The appellee had acted as a lineman, whose duty it was to put wires up for the machine- — the live wire and the dead return wire. Appellee was not there when the machine men made the cable and did not remember anything about the machine men, except when they were in his entry or place cutting. He didn’t know at what point they had stopped the wire. The appellee was familiar with the manner of fastening the cable nips to the power wires. It would be practical to put the nips on the end of the power wire. If witness or any other man should discover the cable hooked to the power wires back behind where he was working, that would indicate to him that the end of the power wires was back where the connection was made. The appellee did not have any means of knowing, without an investigation, that one of the power wires extended further toward the face than where the nips were hooked on. The appellee thus describes the manner of his injury: “We were at our working place performing our duty. The driver had given us a back switch, placing us an empty car to receive a load, which we did, and pulled the load out of the -back entry, and in so doing the mules backed, dragging the cable down. I was holding the weight of the car with both hands pushing the car in. Naturally my ‘buddie’ (fellow worker) was going to drop in on the back end with me to help me with the knuckle, as we call it, and frog, and, instead of him returning with me as I expected, he hallooed, ‘Wait a minute, the machine cable is down.’ Probably the car was along about the frog at that time. Then he put the cable up on his side, which is in between the two tracks, the 'top entry track and the lower entry switch. He put the cable up that extends into the entry on his side and remarked, ‘Here,’ or something like that, calling my attention. I stepped up to the side of the car, as innocent as a little dove, hanging that cable up on the board trying to get it to fasten up there. There was a little nail in there, probably a sixpenny nail, which the weight of the cable had bent down until it would hold the cable no longer. The board that had been put up to support the canvas across the entry was sticking up there, and it was down probably an inch, one-half inch, or something like that, I don’t know how far, but that is the first thing I thought of— stick you in there and you will be out of my way. This is no place for you. I held the cable with this hand trying to pull the slack cable up from this entry along to me as a man would a lariat rope, trying to get enough cable up so as I could place it up to keep it from coming oat. from this board; when doing so, I had no place to put it — it wouldn’t stay. My thought was next, stick you over this curtain, and you will stay there probably — your own weight will hold the weight there naturally, and in doing so I came in contact with that live wire in this arm, and it knocked me absolutely as dead and as cold as a wedge.” The appellee’s testimony further shows that he was endeavoring to pick up the cable to keep the car from running on to it and cutting same in two, which would have rendered the situation of appellee and his fellow worker very dangerous. His testimony shows that it was. his duty and the duty of others operating in the mine to pick up the cable. There was supposed to be no danger connected with 'this. The appellee stated that be did not know that the live wire from which he received the shock was behind the canvas. He then testified that there were several different ways to have protected the wire; that it could have been an insulated cable It could have been put, if necessary, five or six feet from the rail, instead of three. There could have been a. board nailed between the workman and the wire, which would have prevented the man from coming in contact with the wire and make it absolutely safe. The appellee then describes his sensation when lie returned to consciousness and Ms physical condition before and after the alleged injury. • . Iiis testimony further shows that his arm came in contact with the wire somewhere-about the wrist or an inch from the wrist joint. There was no burn. Ai: the time of his alleged injury he had on gum boots and woolen socks. The boots had holes in them both in the bottom and in the sides. The appellee at the time was standing on a muck or mud bottom — inclined to be damp. He stated that the place where he was injured was not wet, but that none of it was perfectly dry. It was counted dry, and there was dry dusty coal — there was no water-standing at the place where he was hurt. One of the witnesses on behalf of the appellee testified that he went back to the place where ■ the people were surrounding the appellee at the time he was injured. He found them about three or four feet from the curtain up toward the dip switch. Appellee was up on an entry — the main entry — sitting down on his knee and had his hands down. He was next to the face from the curtain coming across the main entry. The car was under the dip switch curtain and turned into the dip switch. It had six or seven props in there. "Witness and one Pete Coffman helped to unload the props so they could put appellee in the car to send him out of the mine. The wire could not have been seen by a person standing at the place where witness found appellee, because the curtain Avas hanging between him and the wire. The ivire Avas not insulated. It was the hot wire. It carried a dangerous current of electricity. There was nothing between the íavo props that the wire ivas fastened to, to prevent a person from coming in contact with the wire. If they had nailed a couple of boards on the two props horizontally, this would have protected a person from falling against the wire. Another witness testified that he assisted in hanging the -wire in question; that the wire was laid back beyond the dead Avire and stretched up. “We stretched them lo this dip switch and stopped at a point a dis tance from the track which was safe for everybody, and in that particular instance we had a few feet of wire that extended beyond that prop, and we turned it back and wrapped it around itself. If we had stopped this live wire at the end of the dead wire, we would have had possibly twelve feet to wrap back. It would have been just as practical to wrap this amount back as it was the little amount we did wrap back. The nips could have been used on it just as well. If the live and dead wires both extended the same distance, you would have reached the dead wire before you reached the live wire in stepping toward them. The dead wire is harmless.” This witness further testified that, if a ten-inch board had been nailed on the opposite side of the post from the wire, that would probably have made it safer to people working in the entry in keeping them from coming in contact with the wire. This witness also testified that he had been shocked by electric wires in the same mine when they were charged with 250 volts; that the only injury he had received from it was that it knocked him down. Another witness also testified that he had been knocked down two or three times by the direct current from the electric wires in Mine No. 4, but was never burned with any of them. On behalf of the appellant, there was testimony to the effect that it was impossible for a man to put his 1 and against the live wire if he stood in the angle of the curtains where the appellee said he stood. The witness went into detail as to the condition and the situation of the mine at the time and place the appellee is alleged to have been injured. The appellant also introduced the testimony of a medical expert who had had occasion to study and treat injuries due to electricity. He, in company with other physicians, had examined the appellee. He found no physical injury of any kind whatever, no evidence of any burn from electricity, and found the plaintiff normal in every way. In his opinion the plaintiff was a malingerer. This examination was made long’ after the injury and just before the trial, the examination being authorized by the court. Two other physicians, experts, testified. One of them had been called to treat the appellee at the time of his injury. He found him complaining and trembly and apparently exhausted from some cause, claiming that he had been in contact with an electric wire. He made a diagnosis of his case in the usual way and found that lie had the same symptoms of a person recently after a shock who had been struck by lightning. He stated that appellee had no organic trouble that he knew of, but that he seemed to be “all down and out” and witness was unable to explain why. At the time of the trial appellee didn’t seem to be sick at all, but he was weak and emaciated. The physician gave it as his opinion from the history of the case that the cause of appellee’s weak and run-down condition was the electric shock. The other physician who had also examined the appellee testified substantially to the same effect. There was testimony to the effect that the appellee, before he received the injury, was “healthy, strong, energetic, a good worker and enthusiastic.” At the time of the alleged injury he weighed 158 pounds and at the time of the trial he weighed 136 pounds. There was also testimony to the effect that appellee was known in the community as a good man; was the president of the Red Cross unit at Hartford during the war, and was exceedingly active in all the Liberty drives for the sale of bonds — was a leader in all these things. The above facts speak for themselves. Without discussing them in detail, it suffices to say, giving them their strongest probative force in favor of appellee, they show that the issues of negligence, contributory negligence and assumed risk were issues for the jury. The court did 'not err therefore in refusing appellant’s prayer for a peremptory instruction. The court gave instructions, numbered 1 to 22 inclusive, embracing therein instructions on its own motion and certain prayers for instructions requested by the appellant and also certain prayers requested by the appellee. These instructions covered the evidence adduced at the trial. They correctly announced familiar principles of law applicable to the issues of negligence, contributory negligence and assumed risk, and were in accord with the well established doctrines on these subjects as they have been announced in numerous former decisions of this court. Appellant presented seventeen prayers for instructions which the court refused. Such of these as were correct, the court covered in the instructions it gave. We find no error in the ruling of the court in the giving and refusing of prayers for instructions. During the opening argument before the jury, one of the attorneys for the appellee referred to W. L. Leavy as “an insurance .agent setting beside Mr. Mc-Donough. ” The appellant objected to the statement on the ground that it was wrongful, harmful and erroneous, the said W. L. Leavy not being a witness in the case and there being no testimony that he was the agent of an insurance company. The appellant asked the court to instruct the jury to disregard the statement. The court did this, stating to the jury that there was no evidence that Leavy was an insurance agent, and that the jury, should disregard the statement. The appellant duly saved its exception “to the making of the unfounded'and erroneous remark” by counsel for the appellee. The. remarks of counsel were highly improper. See Williams v. Cantwell, 114 Ark. 542; Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1. But it does not occur to us that they were so flagrant as to produce a deep-seated and irremovable prejudice in the minds of the jury. To so hold would impeach the jury of a desire or willingness to give heed to the remarks of interested counsel, rather than to follow the instructions of the impartial judge, and this too notwithstanding their oath to decide the case according to the instructions of the court and the • ■vidence adduced by the witnesses. A sensible and honest jury is not likely to- be swerved from the path of duty by such conduct on the part of counsel. The court promptly complied with the request of counsel for the appellant to instruct the jury, not to consider the remarks of counsel for the appellee. The statement of the court in the presence of the jury that there was no evidence that Leavy was an insurance agent and to disregard the statement of counsel to that effect would, we believe, remove all prejudice in the minds of the jury that the remarks might have produced. The appellant objected to certain other remarks of counsel for the appellee, all of which we have considered. But we do not find any errors prejudicial to appellant in the rulings of the court concerning the remarks of counsel. There are many other assignments of error in the motion for a new trial, which have been ably presented in the elaborate brief of counsel for the appellant. We have considered all of these assignments, but it would unduly extend this opinion to discuss them, and we deem it unnecessary to do so. After a careful consideration of the whole record we find no error prejudicial to the appellant in any ruling of the trial court, and its judgment must therefore be affirmed.

Humphreys, J. Appellee instituted suit against appellant in the White Circuit Court to recover $300 for a suitcase and its contents, alleged to have been destroyed by fire on the 7th day of April, 1920, through the negligence of appellant in failing to remove it after discovering that its depot at Little Rock was on fire. Appellee filed an answer, denying the material allegations of the complaint, but pleaded in the alternative that, should appellee be permitted to recover the amount, it should be limited to a maximum of $25, as per stipulation in the check issued to him when he left the suitcase in storage. The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $150, from which judgment is this appeal. The record reflects that appellee, en route to Oklahoma, remained in Little Bock over night. He checked his suitcase in the parcel room of appellant, and, upon payment of ten cents, received a parcel stub check containing the provision that appellant “will not be responsible for loss, damage or detention of articles left in storage for any amount in excess of $25.” There was an outside door and window to the checking room, and a chute to the basement.' The depot was destroyed that night by an accidental fire, which started about 8 o’clock. The employees in the checking room were driven out by the fire within thirty minutes after it started. There were three employees in the room, who busied themselves finding and delivering parcels to those who called for them in person.’ About one hundred parcels were saved by delivering in this way to those who rushed to the room. About fifty parcels were left in the room and burned. No effort was made by any of the appellant’s three employees in the room to save the uncalled-for parcels, among which was appellee’s suitcase. The employees said they were busily engaged the entire time before leaving the building in getting parcels to those who applied in person for them; also that, had they thrown the parcels out, some one would have carried them off, as they could not have gotten a reliable person to watch them; also that, had they carried any of them out, the police force and firemen would not have permitted them to return to the building. During the fire, employees in the basement were engaged in removing parcels to a safe place. It is contended by appellant that, in tbe exercise of ordinary care, it could not bave prevented the destruction of the suitcase and its contents. We think there is some substantial evidence tending to show otherwise. No effort whatever was made to save the parcels of those who did not call for them. Three employees were in the room, and they devoted their entire time to handing out parcels to those who called for them, spending frequently a minute in searching for the particular parcel. The jury might well have concluded that all the parcels might have been saved had they gotten them out and searched out, the particular parcels and delivered them later. All might have been thrown down the chute where other employees were engaged in carrying the parcels to a place of safety from the basement; or the parcels might have been thrown through the door or window to a safe place .on the outside. One of the employees might have guarded them on the outside while the other two removed them from the checking room. We think the evidence sufficient to sustain the verdict. It is also contended by appellant that the court committed error in permitting a recovery in excess of $25. Appellee contends otherwise, insisting, first, that the contract makes no attempt to exempt appellant or limit its liability by reason of negligence; second, that appellant could not limit its liability growing out of its own negligence. (a) We think the contract broad enough to limit appellant’s liability on any account The language of the contract is: “The carrier will not be responsible for loss, damage or detention of articles left in storage for any amount in excess of $25.” It is broader than the language used in the Gulf Express Co. v. Harrington, 90 Ark. 258. (b) A warehouseman may limit his liability to an agreed value of the article received, where the rate charged is based upon the value of the article. This character of contract does not' contravene the principle that one cannot contract for exemption or limitation from liability on account of his own negligence. The rule is stated in keeping with the principle 'announced in K. C. S. R Co. v. Carl, 227 U. S. 639. The judgment is therefore reversed and modified by a reduction in the amount to $25.

McCulloch, C. J. Appellee instituted this action against appellant in the circuit court of Desha County to recover possession of five mules and for damages for detention in the sum of $35. It is alleged in the complaint that appellee sold the mules in controversy to appellant, and that the latter executed to the former a promissory note for the sum of $500 for the balance of the purchase price, and that in said note there was a stipulation that the title to the mules should remain in appellee until the note was paid in full. The note was exhibited with the complaint. Appellant filed an answer and cross-complaint in which it was stated that the purchase price of the mules was the sum of $1850, of which $1350 was paid in cash, and that the note was executed for the balance ; that in the sale of the mules appellee orally gave a warranty that each of the mules “was sound and free from any and all defects.” It is further alleged that two of the mules, of the value of $800, “proved to be dis-eased, crippled and absolutely worthless, and that the plaintiff was informed of said facts and failed and refused to make good his warranty.” The prayer of the cross-complaint is as follows: “Defendant says that by the failure of the warranty of the plaintiff, as aforesaid, and because of the condition of the mules described, he has been damaged in the sum of eight hundred dollars, for which he prays judgment as a set-off, or counterclaim, against the demand of the plaintiff; prays that the note be satisfied in full by cancellation, and for judgment over against the plaintiff for $300, and for all other proper relief to which he may be entitled. ’ ’ The court sustained a demurrer to appellant’s plea, and, on failure to plead further, rendered judgment against appellant and in favor of appellee for recovery of the possession of the mules, without damages. Counsel for appellee defend the ruling of the court, first, on the ground that the contract of sale was in writing and that the writing can not he varied ngr anything super- added by proof of an oral warranty. The contract of sale was not in writing as tbe note for tbe purchase price. containing reservation of title did not constitute a contract of sale. Parrett Tractor Co. v. Brownfiel, 149 Ark. 566. It is next contended that the ruling of the court was correct, for the reason that, this being an action for the recovery of possession of personal property, a counterclaim or set-off could not be asserted. This contention is not well founded for the reason, in the first place, that the action was one not only for the recovery of personal property, but for the recovery of money as damages for detention of the property in controversy. We held in Smith v. Glover, 135 Ark. 531, that in an action for recovery of real property, where damages for detention were also sought to be recovered, the action was in part one for the recovery of money, and that a counterclaim could be pleaded. The fact that the court did not render judgment for the recovery of damages does not deprive appellant of the benefit of his counterclaim, for the admissibility of his plea must be tested by the state of the pleadings at the time same was filed. Appellant could not cut off the right to assert a counterclaim by withdrawing his claim for damages after the counterclaim was filed. Crawford & Moses’ Digest, § 6236. There is still an other, conclusive reason why the ruling of the court was erroneous. Appellant had the right to establish his counterclaim in order to show that the debt evidenced by the promissory note, which was the basis of appellee’s right to recover the possession of the property, had been extinguished. Ames Iron Works v. Rea, 56 Ark. 450; Ramsey v. Capshaw, 71 Ark. 408; Jones v. Blythe, 138 Ark. 81. The case of Ames Iron Works v. Rea, supra, was one like this for the recovery of possession of personal property, and there was asserted a counterclaim for unliquidated damages, and Judge Battle, speaking for the court, said: “The right to the possession of property sued for is essential to a recovery in actions of replevin. Any state of facts which will show the existence or nonexistence of such a right is, as a rule, pleadable in such actions. Thus, in an action of replevin by a mortgagee against the mortgagor to recover the possession of the goods mortgaged to him, the mortgagor can successfully defend the action by showing that the debt, which the mortgage was given to secure, has been paid.” For both of the reasons set .out above, our conclusion is that the court erred in sustaining the demurrer to appellant’s plea. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer.

Wood, J. The appellant was convicted on an indictment which reads as follows: “The grand jury of Jonesboro District, Craighead County, in the name and by the authority of the State of Arkansas, accuse H. D. Murry of the crime of removing mortgaged property committed as follows, to-wit: The said * * * in the county, district and State aforesaid, on the 24th day of January, A. D. 1921, did unlawfully, knowingly and feloniously remove from the limits of the State of Arkansas one bale of cotton of the value of sixty dollars, upon which cotton one L. D. Horn had a landlord’s lien to secure the payment of one hundred dollars rent due him by the said H. D. Murry as his tenant, with the felonious intent to defeat the holder of said lien in the collection of the said debt secured by such lien; against the peace and dignity of the State of Arkansas.” The appellant moved to arrest the judgment on the ground that the indictment did not charge.the appellant with a public offense. The statute under which the appellant was indicted reads in part as follows: “It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State, or of the county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, any property of any kind, character or description, upon which a lien of any kind enumerated above exists; provided, such sale or barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such mortgage, laborer’s or landlord’s lien.” Crawford '& Moses’ Digest, § 2552. In Davis v. State, 131 Ark. 542, we said: “Certainty in an indictment is required when charging an offense, and a demurrer thereto should be sustained unless the language of the indictment charges an offense with reasonable certainty, so as to put the accused on notice of the- nature of the charge he is called upon to meet; but when the sufficiency of the indictment is called in question by motion in arrest of judgment, the rule is different, and if it can be gathered from the language of the indictment that the essentials of the crime are charged either directly or by reasonable inference, then the motion should be overruled.” See also Loudermilk v. State, 110 Ark. 549. It will be observed that the grand jury accused H. D. Murry “of the crime of removing mortgaged property, committed as follows, to wit, etc. ’ ’ The indictment then proceeds to describe the manner in which the offense is alleged to have been committed, and this description shows that the offense consisted in feloniously removing from the limits of the State of Arkansas a bale of cotton, of the value of $60, upon which one L. D. Horn had a landlord’s lien to secure the payment of $100 rent due him by the said H. D. Murry as his tenant, etc.” The word “said” in legal terminology, means “aforementioned, already spoken of,” and is used in the indictment to designate the appellant. After the appellant’s name is mentioned the word “said” in the clause following relates back to the appellant’s name; and although in the first or accusing clause of the indictment the offense is designated as “removing mortgaged property” yet the specific acts alleged to constitute the offense are set forth, and this description shows the alleged crime to be the removal of one bale of cotton out of the State of the value of $60 upon which L. D. Horn had a landlord’s lien, etc. So, although the offense was erroneously designated as “removing mortgaged property” it was in fact the removal of property apon which there was a landlord’s lien. In Kelly v. State, 102 Ark. 651-55, we said: “A discrepancy or mistake in the naming of an offense in an indictment will not vitiate the. same if the particular facts necessary to constitute the offense are specifically and accurately described. ‘The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment.’ ” See also Spear v. State, 130 Ark. 457-462. Sec. 2552 Crawford & Moses’ Digest provides: “It shall be unlawful for any person * * * to remove beyond the limits of this State, or of the county in which a landlord’s or laborer’s lien exists * * * any property of- any kind, * # * upon which a lien of the kind enumerated above exists; provided such * * * removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such * * * landlord’s lien.” Sections 2554 and 2555 prescribe the penalty for a violation of the above statute. The trial court gave instruction No. 2 on its- own motion, which, after setting forth the provisions of the above .statute, reads in part as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, H. D. Murry, in the Jonesboro District of Craighead County on the 24th day of January, 1921, or at any time within one year next before the 19th day of April, 1921, removed or caused to be removed from the State of Arkansas, without the legal authority or consent of the prosecuting witness, L. D. Horn, one bale of cotton of the value of sixty dollars, * * * from the city of Jonesboro, Arkansas, to the city of Memphis in the State of Tennessee, and that at such time the said L. D. Horn had a valid and subsisting landlord’s lien thereon for rent due him in the sum of one hundred dollars, * * * with the purpose and intent of defeating the said L. D. Horn in the collection of his said lien and thereby defraud him in the collection of any rent that may have been due him thereon, * * * then it will be your duty to convict him,” etc. Among other specific objections made to the instruction is the following: “The word ‘legal’ in the expression ‘without the legal authority or consent of the prosecuting witness, L. D. Horn. ’ The use of this word is apt to mislead the jury, causing them to believe that authority or consent must he given in some particular form. The instruction should read ‘without authority or consent or subsequent ratification of the prosecuting witness, L. 13. Horn.’ The court overruled appellant’s objection to the instruction. Among others, the appellant presented the following prayer for instruction: “If the prosecuting witness, Horn, either in person, or by his duly authorized agent, consented to the removal of the bale of cotton in Controversy, you should then acquit the defendant.” The court refused to grant this prayer. The testimony on behalf of the State tended to prove that one L. D. Horn rented to the appellant for the year 1920 sixty acres of land in Craighead County, Arkansas, for which the appellant agreed to pay $200. Appellant gave Horn his check for $100, and executed his note for the balance. The appellant moved off the place at the close of the year without paying the note. The note was placed by Horn in the hands of one Harrell for collection. Harrell went to the place in September' before the note was due and informed the appellant that he held the same for collection. Appellant said that he would pay the said note when it was due, and Harrell did not at that time doubt but that he would pay it. Harrell then told appellant not to move the crops out. Horn had not at that time directed Harrell to forbid Murry marketing his crops. Harrell went to the place again in December after the note was due. Appellant had then moved off the place. He stated to Harrell that he had shipped three bales of cotton to Memphis and would pay the note when he got returns on that cotton. He made no 'statement about where the cotton came from. He stated that he was to pay the rent out of that cotton, and witness told him that was all right if lie paid the rent out of it. Harrell did not object to his shipping that cotton to Memphis. “The’ old man (appellant) talked like he was going to pay it, and that was all right then.” On January 31st, Harrell went to see appellant and appellant told him that a certain bale of cotton, part of which was grown on Horn’s place, had been shipped to Memphis, and he would pay the proceeds over to Harrell.' The appellant did not pay, and criminal prosecution was instituted against him. Witness Horn, among other things, testified that he did not give appellant authority to ship the cotton and did not pay anything to appellant to dispose of the cotton or ship it. “The day we went out there it seems to me that Mr. Harrell told him that it was all right so he paid that rent.” The appellant testified, and among other things denied that Harrell told him not to move the crops out. He stated that he wrote Harrell when he moved, and Harrell and Horn came to his house to speak to witness about the rent. Witness detailed the conversation between himself and Horn as follows: “I have 973 pounds of cotton that came from your place, Dr. Horn, and there was one or two hundred, pounds in the patch when I left there, and I asked Mr. Jim Broadway to please not let his cattle in there to eat it up — I would like to get enough to make out a bale — if not, I have ■a few remnants that I intend to mix in with the 973 pounds and I intend to finish the bale out and sell it and pay you. He never said a word, he just said, ‘All right.’ ” The gravamen of the offense of which appellant was convicted is the removal of property beyond the limits of the State with the intent to defeat the lien holder in the collection of his debt; and, on the issue as to the intent of the appellant, testimony tending to prove that the landlord had authorized the removal, or that he consented to it, was competent. Lawhorn v. State, 108 Ark. 474; Osborne v. State, 109 Ark. 440. Such authority or consent on the part of the landlord could be shown by any competent' testimony tending to prove it. Such authority or consent, to be legal, would not have to be in writing or evidenced in any other special manner. In view of the above testimony we are convinced that the court erred in not striking out the word ‘legal’ before the words ‘authority or consent’ in its instruction. The word ‘legal’ had ho place in the instruction, because, if the landlord authorized the removal, or consented to it at all, it was legal, and the use of that word was surplusage, argumentative, and calculated to lead the jury into a realm of speculation as to what was or was not legal authority. If the court’s attention had not been specifically drawn to this word,' the error would not have been prejudicial, because the objection was to the phraseology, and was one to which the attention of the court should have been specifically called. When this was done, however, fairness to the appellant required that the objectionable word be eliminated. The error in refusing* to do so is made more manifest when taken in connection with the refusal to grant appellant’s prayer for instruction No. 5. This prayer was correct, and a succinct declaration of the law applicable to the testimony adduced. It occurs to us that the refusal to give it shows that the trial court was laving undue emphasis on the word ‘legal’ used in its instruction. At least the jury might have been so impressed. Counsel for appellant urge that many other errors were committed, but we have found no other reversible error in the record and deem it unnecessary to discuss other assignments. For the error indicated, the judgment is reversed, and the cause remanded for a new trial.

Hart, J., (after stating the facts). Sec. 67f of the Bankrupt Act of 1898 provides: “That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall'be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on clue notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustees for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect. Provided, that nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry.” In the case of Clarke v. Larremore, 188 U. S. 486, it was contended that, inasmuch as the sheriff had sold the goods levied upon before filing the petition in bankruptcy, the proceeds of the sale were the property of the plaintiff in execution, and not of the bankrupt at the time of the adjudication, and that the trustee therefore had no title to the same. The contention involved the construction of the section of the bankruptcy act quoted above. Mr. Justice Brewer in construing the section, and disposing of the contention made, said: null and void from its inception. Further, the statute provides that ‘the property affected by’ — not the property subject to — the lien is wholly discharged and released therefrom. It is true that the stock and fixtures, the property originally belonging to the bankrupt, had been sold, but having, so far as the record shows, passed to a bona fide purchaser for value,’ it remained by virtue of the last clause of the section the property of the purchaser, unaffected by the bankruptcy proceedings. But the money received by the sheriff took the place of that property.” ‘ ‘ This contention cannot be sustained. The judgment in favor of petitioner against Kenney was not like that in Metcalf v. Barker, 187 U. S. 165, one giving effect to a lien theretofore existing, but one'which with the levy of an execution issued thereon created the lien; and, as judgment, execution and levy were all within four months prior-to the filing of the petition in bankruptcy, the lien created thereby became null and void on the adjudication of bankruptcy. This nullity and invalidity relate back'to the time of the entry of the judgment and affect that and all subsequent proceedings. The language of the statute is not ‘when’ but fin case he is adjudged a bankrupt,’ and the lien obtained through these legal proceedings was by the adjudication rendered In the application of the rule there announced to the present case, when the Big Bend Plantation Company was adjudged a bankrupt, the bankruptcy statute quoted above operated to nullify and render void the garnishment lien obtained by the plaintiff garnishing the Bald Knob State Bank and to wholly release and discharge the debt due the Big Bend Plantation Company from such .lien. The plaintiff obtained his garnishment lien subject to the lien being defeated if a petition in 'bankruptcy was filed against the defendant, Big Bend Plantation Company, within four months from the date the garnishment lien was obtained and it was adjudicated a bankrupt. In such-cases the invalidity relates back to the inception of the lien, so that, for all purposes, the lien may be said never to have existed. Therefore it was not necessary to prove that the Big Bend Plantation Company was insolvent at the time the garnishment lien herein was obtained. See 2 Remington on Bankruptcy, (2nd. Ed.) § 1467. It is admitted that the record shows that the petition in bankruptcy was filed within four months from the time the garnishment lien was obtained, but it is insisted that the record does not show that the Big Bend Plantation Company was adjudged a bankrupt, and that on this account the motion of Avery M. Blount to dismiss should have been overruled. The court expressly found that the Big Bend Plantation Company had been adjudged a bankrupt upon a petition filed in the Federal court, and we are of the opinion that the record fairly supports its finding. We have copied in onr statement of facts the record on this phase of the case. It is true the record of the bankruptcy court was the best evidence of the rendition of the judgment. The record here shows that, upon objection 'being made to the oral testimony of Avery M. Blount, the receiver in bankruptcy, to the effect that the Big Bend Plantation Company had been adjudged a bankrupt, he answered that he had the original record of the bankruptcy court. The court sustained an objection to the adjudication being proved by oral testimony. The attention of the court was then called to the fact that the question had already been before the court in the ease, and that the attorneys for the plaintiff had admitted that a. voluntary petition in bankruptcy had been filed and that the Big Bend Plantation Company had been adjudged a bankrupt in the Federal court. The attorneys for the plaintiff 'then responded that this might be true. Under this state of the record, it was not necessary to prove the fact again. If it had already been admitted in the case, this avoided the necessity of again proving the fact, and the court might find that an adjudication of bankruptcy had been made in the Federal court. . The record clearly shows that the petition was filed within four months after 'the garnishment lien was obtained. Therefore, the court properly sustained the motion to dismiss filed by the receiver in bankruptcy. It is further insisted, however, that the judgment should be reversed because the Big Bend Plantation Company had withdrawn and spent the money which was the subject-matter of the garnishment proceedings. Under the state of the record here presented, it is fairly inferable that the plaintiff in this action deposited $1105.69 with the Bald Knob State Bank to take the place of the bond it had filed when the attachment proceedings were sued on and that, with the consent of the plaintiff, the Bald Knob State Bank deposited this money with the circuit clerk to be paid out under the orders of the court. In short, the parties treated this as the deposit of the money in the registry of the court to be ordered paid by the courl after a judicial ascertainment of the proper person to receive it. It follows that the judgment must be affirmed.

Hart, J., (after stating the facts). The defendant seeks to uphold the judgment under 8287, 8288, of Crawford & Moses’ Digest. Sec. 8287 is as follows: “Any person bound as surety for another in any bond, bill or note, for the payment of money or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.” Sec. 8288 provides that if such suit be not commenced within thirty days after the service of such notice and proceeded on with due diligence in the ordinary coirrse of law to judgment and execution, such surety shall be exonerated from liability to the persons notified. The plaintiffs were the payees in the note, and notice to sue the principal debtors was given them in the manner and form provided in the statutes. The plaintiffs failed to sue the' principal debtors within thirty days after the service of the notice. It is contended by them, however, that W. D. Alexander, the surety, is not exonerated because he did not give notice under the statute until after he had been sued on the note. This did not make any difference. A surety’s right to give notice to the creditor to sue and to secure his release, if suit is brought, is a right given by the statute, and not at common law. Sims v. Everett, 113 Ark. 198; Green v. McCullar, 128 Ark; 221, and Shores-Mueller Co. v. Palmer, 141 Ark. 64. Hence we must look to the language of the statute for the exoneration. The statute provides that the notice may be given at any time after a cause of action has accrued on the note signed by the surety. If the framers of the statute had intended that no exoneration could be had under it after suit brought, they would have so provided by apt words. The language used in the statute is broad enough to cover cases where the notice was given after suit brought, and,‘there being nothing in the statute to indicate that the Legislature intended to restrict its operation to cases where suit had not been brought, the courts can impose no such limitation. Therefore the judgment will be affirmed.

Wood, J. Street Improvement District No. 305 Little Rock, Arkansas, was created by ordinance duly passed by the city council olf the city of' Little Rock on February 7, 1921, and - duly published on February 11, 1921. On March 7, 1921, a second petition in proper form was filed with the city clerk and notice duly published that a hearing would be held thereon on March 28, 1921. On April 4, 1921, the commissioners of the district took the oath and on May 9, 1921, filed with the city council, a report which reads in part as follows: “We have formed plans for the improvement within the district as prayed for in the petition, and have ascertained that 'the cost of such improvement will be $11,400, which is less than 20 per cent of the assessed value of the real property of said district as shown by the last county assessment.” No plans and specifications, or itemized statement of cost for the improvement, were filed with the council. The duly appointed assessors of the district filed their assessment of benefits on June 16, 1921, and notice of such filing was duly published. Protests against the assessment of.benefits as filed were immediately made by the property owners. The city council referred these protests to its finance committee, which recommended to the council as follows: “We recommend a reduction in the assessment of 5% on property facing double track car lines and 2%% on property facing a single track car line.” The city council adopted these recommendations and referred them to the assessors for reassessment accordingly. The assessors revised the assessments according to these recommendations and filed the same on July 29, 1921. On August 8, 1921, an ordinance was passed assessing the benefits in the district according to the assessments as revised, which ordinance was duly- published August 12, 1921. This action was instituted by the appellant in the Pulaski Chancery Court seeking to have all of the acts of the city council, the board of improvement, and the board of assessors subsequent to the filing of the original assessment declared void. After setting out the facts as above appellant alleged that the board of improvement failed to file with the city clerk any plan-for the improvements within the district and that the council had- no authority to refer assessments once filed back to the board of assessors nor to revise the assessments when no appeal had been taken from the assessments of the board of assessors to the city council. The appellee demurred to the complaint on the following grounds, to-wit: “The complaint does not state facts sufficient to constitute a cause of action. The complaint shows that this is a suit to invalidate the assessment ordinance of said district and is begun more than thirty days after the publication of said ordinance and said suit is therefore barred and precluded.” The court sustained the demurrer. The appellant stood on his complaint. The court entered a decree dismissing the same for want of equity, from which decree is this appeal. The report of the commissioners to the city council was in writing and informed that body that the commissioners had qualified and organized Into a board and elected a secretary; that they had formed plans as prayed for in the petition for the improvement and ascertained that the cost of such improvement would be $11,400, which was less than 20'per cent, of the assessed value of the real property in the district as shown by the last county assessment. The report concluded by asking that three persons, naming them, be appointed assessors to assess the benefits. Attached to the report was a statement of the engineer of the district as to the cost of the work outlined. The report was a sufficient compliance wtih sections 5656 and 5657, Crawford & Moses’ Digest, which require that, “immediately after their qualification, the board shall form plans for the imorovement within their district as prayed in the petition, and shall procure estimates for the cost thereof * * * and shall report the same to the city or town council, which shall appoint three electors of the city or town, which shall constitute a board of assessors of the benefits to be received by each lot, etc.” It will be observed that the only purpose of requiring this report to be made to the city council is to advise that body, so that the latter may proceed to an-point the assessors, which is the only duty the' city council has to perform with reference to the report. The commissioners constituting the board of improve ment are public agents, and necessarily vested ,'with large discretion in the discharge of their duties under the statute, and, if it had been the design of the Legislature to have the detailed plans, together with the itemized estimated cost of the improvement, filed with the city council before the latter could appoint the board of assessors, such purpose would have been plainly stated in the statute. It is essential that the board of improvement form plans and procure estimates (for the cost of the improvement. Mo. Pac. Ry. Co. v. Waterworks Imp. Dist., 134 Ark. 315. And the board is directed to report the same to the city council, but the making of such report to the city council is not jurisdictional. If the commissioners had actually formed the plans and ascertained the cost thereof, but had failed to report the same to the city council, the latter body would still have had the power to appoint the assessors to assess the benefits. In others words, the further progress of the improvement could not be arrested and the whole improvement defeated simply because the board had failed or neglected to make proper report to the city council. The report made by the improvement board in this- case was in compliance with the requirements of the statute. The statute requires that, within thirty days after the passage of the ordinance mentioned above (assessment ordinance), the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded. Sec. 5668, Crawford & Moses’ Digest. The allegations of the appellant’s complaint show that it is an attack upon the assessment of benefits. The appellant did not comply with this statute, and therefore Ms cause of action is barred. Board of Imp. Dist. v. Offenhauser, 84 Ark. 257, 268; Boles v. Kelly, 90 Ark. 29; Webster v. Ferguson, 95 Ark. 575; Bd. of Imp. v. Pollard, 98 Ark. 543. The decree is therefore correct, and it is affirmed.

Wood, J. On the 22d of May, 1920, Aline Trainer, a girl eleven years of age, was killed by one of appellant’s cars. The jury returned a verdict in favor of the appellee in the sum of $2,000 for the benefit of the estate, and in the sum of $5,000 for the benefit of the appellee, the father of the child. The liability of the appellant for damages on account of the death of the child is conceded, and the only question for our decision is whether or not the verdict and judgment for $5,000 in favor of the appellee, and for his benefit as father, were excessive. The little girl was a healthy, vigorous child. At the time she was injured she was on an errand for her mother. Her father testified that she was “very helpful, kind, and obedient about the house.” He was' asked to tell the jury how she would help about the house, and said: “Well, naturally, a child of that age couldn’t do only such as kitchen work, such as sweeping, or odd things about the house, but she was always ready to aid her mother; in fact, she was that way in the whole neighborhood. She was exceptional, I think, in manners and behavior at home and to the teachers.” The case of Little Rock & Ft. Smith Ry. Co. v. Bather 33 Ark. 350, is the leading case in this State upon the question under consideration. In that case the mother, who was a poor widow and kept a boarding house for a living, sought to recover damages against the railway company for the killing of her only child, who was five years old at the time he was killed. He was an intelligent, healthy, and promising* lad. Judgment was rendered in her favor in the sum of $4,500. In that case, Chief Justice English, in speaking for the court, among other things, said: “The damages are not to be given as a solatium, but must be founded on pecuniary loss, actual or expected; and mere injury to feelings can not be considered. * * * Nor does our statute limit the amount of the recovery, as the statutes of some of the States do, but juries are not warranted in finding verdicts for sums disproportionate to, or in excess of, the probable pecuniary loss of the parent, occasioned by the death of a child. Reasonable damages only, in view of all of the circumstances in evidence, should be awarded.” In concluding the discussion on the issue as to whether the judgment was excessive, the court said: “We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment,- of experience and observation in the raising of children, properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages awarded in this case for loss of probable service were excessive, and such is our judgment.” The judgment in that case was reversed because it was excessive, and the cause, was remanded for a new trial. On the second trial the jury awarded damages in the sum of $3,500. From this sum the plaintiffs (appellees) voluntarily remitted the sum of $1,235, and the trial court allowed the verdict to stand for $2,265, and entered judgment for that sum, and this court affirmed the judgment, stating: “It is not probable that another jury would give a less amount. There must be an end to litigation in the case.” In the course of the opinion on the last appeal, Judge English said: “So, where the death of a person earning or capable of earning wages or doing service is the subject of the action, what he was earning or capable of earning at the time of his death may be proved by witnesses, as the basis of forming a judgment of probable future earnings. 'But where the death of a child, incapable of earning anything, or rendering service of ,any value, at the time of its death, as in this case, is the subject of the action, the value of the probable future services to its parent during its minority must in the nature of things be matter of conjecture. * * * The amount of damages to be recovered is not limited by the statute, and could not be under the constitutional provision above cited. But a jury is not left without restraint in the matter of assessing damages -for death of a minor, or in any other case. If the damages assessed are so enormous as to shock the sense of justice, and to indicate that the verdict is the result of passion or prejudice, the trial judge may set aside, and, if he refuse, this court, on appeal or writ of error, may do so.” Little Rock & Fort Smith Ry. Co. v. Barker, 39 Ark. 491. In the case of St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41, we held (quoting syllabus) that “the measure of damages to a parent for killing his child is the pecuniary value of his services during minority, and the cost and expense incurred by the parent on account of the injury, less the reasonable and necessary expense of raising it; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them, or to the parent’s feelings or the child’s suffering.” In this case it was not essential to recovery that the value of the services of the child to its parents be shown by any affirmative evidence, for, as was said by this court in Little Rock & F. S. R. Co. v. Barker, supra: “Where damages are claimed for the death of a child incapable of earning anything, or rendering service of any value, the value if its probable future services to the parent during its minority, is a matter of conjecture, and may be determined by the jury without the testimony of witnesses.” See also Hines v. Johnson, 145 Ark. 602. Since parents are entitled to the services of their minor children during their minority, the law presumes that a parent has incurred or suffered pecuniary loss and damage in the death of an infant of sound body and mind, even before it has arrived at the age to actually render services of a pecuniary value, or when it is still of such tender age that the value of such services can not be estimated in money. Because it accords with the general observation and experience of mankind in civilized society that such children, before they reach their majority, are capable of rendering, and do generally render, to their parents services that have a pecuniary value. In determining what the pecuniary value of the services of a child of tender age would be to its parents between the time of its death and the age of maturity, the jury should take into consideration the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child. While the law is liberal in allowing the jurors to voice their own opinions and conclusions as to the pecuniary value of the services without any specific proof or opinion of such value by affirmative evidence, yet such conclusion as reflected by their verdict must be predicated upon the facts and circumstances as above detailed and accord with what reasonable men in viewing such facts and circumstances would decide. Chicago v. Choate, 75 Ill. 490. Learned counsel for appellants have cited cases where verdicts in sums greater than in the present case have been upheld. We have examined these cases, and find that several of them are differentiated by the facts from the case at bar, while in some of them the facts are similar. But whatever may be the rule in other juris dictions, it occurs to us that under the interpretation given the statute (1074-5, C. & M. Digest) by our own court in Little Rock & F. S. R. Co. v. Barker, and St. Louis, I. M. & S. R. Co. v. Freeman, and Ry. Co. v. Davis, 55 Ark. 462, and the rule declared in those cases for measuring damages, the verdict and judgment based thereon in this case must be pronounced excessive. The jury awarded a sum equivalent to $714.28 per year, $59.52 per month, or $1.98 per day during the entire seven'years of her minority, making no deduction for the expenses that her parents would have to incur for boarding, clothing, education, loss of time, and expense of probable illness. In other words, tlie jury assumed that the child would be of this pecuniary value to her father every day, every month, and every year. In the meagre testimony in this record it appears that the little girl could do only such as “kitchen work, sweeping, or odd things about the house.” She had not reached the age where she had shown herself “able and willing to make her own living and to contribute out of her earnings to the support of her parents. ’ ’ Therefore, a recovery for probable future pecuniary contributions to them beyond her minority could not be taken into consideration. In the cases of Ry. Co. v. Davis, supra, Memphis, D. & G. Rd. Co. v. Buckley, 99 Ark. 422, and St. L., I. M. & S. Ry. Co. v. Jacks, 105 Ark. 347, we held that the jury, in assessing damages to the father for the death of his minor son, may take into consideration the parent’s expectation of pecuniary benefit from the life of the child beyond minority. The reason for this holding is bottomed expressly upon testimony in .each of the cases showing that the minor was able and willing to make his own living, and “to contribute out of his earnings to the support of his parents.” In the last two cases the minors were contributing all their earnings— quite substantial sums — to their parents, and expected to continue to support them as long as they lived. But there is no testimony in this record to warrant an infer ence that there would be any pecuniary benefit to the parents of this child beyond her minority, and the rule as announced in Little Rock & F. S. R. Co. v. Barker, and St. Louis, I. M. & S. R. Co. v. Freeman, supra, must govern. The little girl was bright and “exceptional in manners and behavior,” and her injuries were horrible. The resultant conscious suffering for the few hours she lived was terrible in the extreme. For this, as stated, her estate recovered the sum of $2,000. We realize that it is most difficult for jurors and judges, in rendering verdicts and judgments in such cases, to shut out all considerations of sympathy for the natural affection and consequent mental anguish of parents. But it must be remembered that at the common law the death of a human being was not the subject of civil action, and that, under our statute as it has been construed by this court, there can be no recovery as a “solatium,” and that mental anguish can not be considered. Therefore, jurors and judges must abjure these but natural and laudable impulses and set their faces like flint toward the Constitution and laws which they are sworn to administer that they may resist and overcome the natural feelings of sympathy and humanity in every normal breast toward the distressed and sorrowing. Otherwise, they can not give to every litigant defendant in 'such (jases that which is due him under the law, justice. Now, we can find no basis in reason to sustain the judgment of $5,000 as a compensation to the appellee for the strictly pecuniary loss to him in the death of his child. In the ordinary course of the domestic relation between father and daughter, it occurs to us that the sum of $2,500 would be the very highest amount that could be recovered for his pecuniary loss under any reasonable view of the evidence most favorable to him. This sum would meet every probable or possible contingency that could arise in the usual course of family affairs by which the services .of this child would have been enhanced to her parents during the period of her minority. Of course, the jury can not be allowed to speculate-on the value of services that in the ordinary course of the family relation and environment it would 'be improbable or impossible for the minor to ever render. The judgment therefore will be modified by deducting therefrom the sum of '$2,500. As thus modified, it is affirmed.

Humphreys, J. Suit in ejectment was brought, on the 8th day of January, 1918, by appellee against M. M. H. Dupree and iB. F. Dupree, her husband, in the Chicot Circuit Court, to recover the possession of lot 15 in block 4, Holland’s Addition to the town of Dermott, Ark., and for $300 damages for the detention of same, alleging ownership thereof under deed from them of date March 16,1912. The Duprees filed answer, admitting the execution of the deed and denying damages for the use of same, but alleging in a cross-complaint that the said M. M. H. Dupree, being the owner of both lots 14 and 15 in block 4 of said addition, sold appellee lot 14 and intended to convey him said lot, but, through a mutual mistake, lot 15, instead of 14, was described in said deed; that, a short time thereafter, they erected a residence and other improvements upon said lot 15, of the value of $650, and have retained the continuous possession of said lot. The prayer of the cross-complaint was for a reformation of the deed so as to describe lot 14, instead of lot 15, and for a transfer of the cause to the chancery court of said county. The motion embodied in the complaint to transfer the cause to equity was sustained, and the cause was transferred to the chancery court pursuant to an order of the circuit court. During the pendency of the suit in the chancery court, M. M. H. Dupree died, on the 20th day of April, 1919, leaving as hér only heirs her two sons, J. M. Holland and S. L: Holland, and two grandchildren, Lucile Dupree and Dorris Freeman. John Baxter afterward purchased the interest of S. L. Holland in said lots. The suit remained upon the chancery docket after the death of M. M. H. Dupree without any steps’being taken until April 4, 1921. On that date, the surviving heirs and John Baxter appeared for the sole purpose of filing a motion to dismiss the cause of action because barred by the statute of limitations, which was pleaded, requiring that causes be revived after the death of á plaintiff or defendant in a real property action within one year from the time the order of revivor might have first been made. On the same date, appellee suggested the death of M. M. H. Dupree and prayed for a revivor of the cause in the name of B. F. Dupree, her administrator, who had been appointed as administrator of her estate on May 8, 1919. Thereupon, B. F. Dupree, as administrator, entered his appearance and consented that the case be revived in his name as such administrator. Upon hearing of the motions, the court revived the cause against B. F. Dupree, as administrator of the estate of M. M. H. Dupree, but dismissed the motion of the heirs of M. M. H. Dupree and John Baxter for the want of equity, from the dismissal of which motion the heirs and John Baxter prosecuted an appeal to this court. Immediately thereafter, the court proceeded to hear the cause upon the original pleadings and exhibits and the depositions of James Smith and B. F. Dupree, which resulted in a decree establishing the ownership of said lot 15 in appellee, and a judgment of $195 for damages by way of rental against B. F. Dupree, as administrator of the estate of M. M. H. Dupree, from which decree B. F. Dupree, as administrator, has prosecuted an appeal to this court. The effect of dismissing the motion of the heirs of M. M. IT. Dupree and John Baxter and of reviving the cause in the name of B. F. Dupree, as administrator of the estate of M. M. H. Dupree, only, was to exclude the heirs and John Baxter from participation in the cause of action. In other words, it was a ruling on the part of the court that the heirs of M. M. H. Dupree, deceased, were not necessary parties to the adjudication of the title to the land of which she died possessed and to which she claimed title. The heirs and the parties claiming through them were necessary parties to the controversy, because the relief sought affected the title to said real estate. Chowning v. Stanfield, 49 Ark. 87; Ex parte Gilbert, 93 Ark. 307; Mayers v. Lark, 113 Ark. 207. It was said by this court in Mayers v. Lark, supra, that (quoting syllabus 1) : “In an action involving the title to land, the cause should be revived, after the death of one of the litigants, in the name of his heirs.” The court proceeded to a hearing of this cause without reviving it against the heirs of M. M. H. Dupree or treating them as proper or necessary parties. The cause could have been revived against the heirs upon proper notice the first day court was in session after the death of M. M. H. Dupree, and the cause could not have been revived against them without their consent after the expiration of one year from the time the order of revivor might have first been made. Section 1065, Crawford & Moses’ Digest. This section of the statute is mandatory in nature. Anglin v. Cravens, 76 Ark. 122. Almost two years had expired after the death of M. M. H. Dupree and after the appointment of an administrator for her - estate before an attempt to revive the cause was made, and, at that time, a revivor against the administrator only was sought, no revivor having at any time been sought against the heirs. The right to revive against the administrator was contingent upon the right to revive against the heirs, for the reason that the cause of action involved the title to real estate, and the right to recover rents against the estate of M. M. H. Dupree, deceased, was dependent upon the title of the real estate being adjudged to appellee, which could not be done without the necessary parties before the court. The causes of action were not severable, so that appellee might revive and prosecute his suit for rents against the administrator of the estate of M. M. H. Dupree. The consent therefore of the administrator to a revivor availed appellée nothing. The court erred in overruling the motion of the heirs of M. M. H. Dupree and John Baxter to dismiss the proceedings. The court should have stricken the cause from the docket upon the motion. Section 1067, Crawford & Moses’ Digest. For the error indicated, the judgment is reversed and the cause remanded with directions to strike the cause from the docket.

Hart, J. (after stating the facts.) It is well settled in this State that an attorney may purchase from his client the results of a suit promoted by him, but the burden is upon the attorney to show the most perfect good faith, the absence of undue influence, a fair price, .knowledge, intention, and freedom of action by the client, and also that he give his client full information and disinterested advice. Davis v. Webber, 66 Ark. 190; Thweatt v. Freeman, 73 Ark. 575; and Weil v. Fineran, 78 Ark. 87. Tested by this rule, we think that, the deed should be set aside. The consideration recited in the deed is the sum of $1 and other good and valuable considerations. Brookfield admits that he paid McMillan only $20 at that time. He subsequently brought suit for the land in the name of McMillan and prosecuted the suit in his name for three years. Brookfield did not record his deed until after a decree was rendered in favor of McMillan for the land. Brookfield claims that he made other advances to McMillan after the execution of the deed before he gave his testimony in the pending suit for the land. If he had already purchased the land, this was not necessary. His making the advancement is consistent, however, with the theory that he was to have a lien on the land for his services in recovering it. The fact that Brookfield brought the suit in McMillan’s name and prosecuted it to a conclusion in his name, together with the almost nominal price given for it, are facts to be considered in determining whether the deed should be set asid. Indeed, all of the attending circumstances tend to show that the parties intended that the deed should be a mortgage for the security of Brookfield’s fee in the prosecution of the suit to recover the land and for any advances he might make McMillan during the progress of the suit. This suit is in equity, and the court has the right to impose conditions upon the plaintiffs in granting them the relief prayed for. He who seeks equity must do equity, is a favorite maxim. In its broadest sense, it is regarded as the foundation of all equity, and as the source of every doctrine and rule of equity jurisprudence. Its practical meaning is that, whatever be the nature of the controversy and of the remedy demanded, the court will not give equitable relief to the party seeking it, unless he will admit and provide for all the equitable rights, claims and demands of his adversary growing out of or necessarily involved in the subject-matter of the controversy. 1 Pomerov’s Equity Jurisprudence, (3 Ed.) § 385. The record shows that McMillan has not paid Brookfield for his services in recovering the land for him, for advances made during the progress of the suit and for the taxes on the land paid by Brookfield. Upon the remand of the case, the deed from Brook-field to McMillan will be set aside upon the payment by McMillan to him of the amounts due him for his legal services in recovering the land, the advances made by him to McMillan during the progress of the suit, and the amount of taxes on the land paid by him. Inasmuch as these amounts are not definitely shown by the evidence in the record, both parties, if so advised, will be 'allowed to take additional testimony to establish the amount of Brookfield’s fee for recovering the land, the advances made by him to McMillan and the amount of taxes paid by him. In default of the payment of these amounts by McMillan during the time to be fixed by the court, the land shall be sold under orders of the court for the payment thereof. The defendant Brookfield has pleaded the statute of limitations. The record discloses that he did not file his deed for.record until the 26th day of February, 1915, and the present suit was not brought until the 28th day of September, 1920. McMillan testified that he did not know that Brookfield was claiming the land under the deed until after he had filed it for record. There is no contradiction of his testimony in this respect, and indeed it is corroborated by the fact that Brookfield brought suit to recover the land in the name of McMillan, and did not file his deed for record until after tliat suit had been concluded. Hence the plaintiffs are not barred by the statute of limitations. It is also insisted by counsel for the defendant that the decree should be affirmed because there is no bill of exceptions preserving’ the evidence taken at the trial. The record shows the entry of a -mmc pro tunc decree, and that decree recites that the case was heard upon the pleading’s which are named and the oral testimony of certain witnesses whose names are set out. The decree contains a further recital “that the oral testimony of said witnesses be and is ordered to be taken down in shorthand by Miss Mabel Kellogg and by her transcribed and filed with the other papers in the case, which is accordingly done. ’ ’ No bill of exceptions is necessary in the chancery court except where oral testimony has ¡been taken and not written and filed as a deposition, or1 as a part of the record in the case. Lemay v. Johnson, 35 Ark. 225; Bradley Lumber Co. v. Hamilton, 109 Ark. 1; and Alston v. Zion, 136 Ark. 376. In the case of Bradley Lumber Co. v. Hamilton, supra, the court said: “The only way of preserving testimony taken orally before the chancery court was to have same reduced to writing at the time and properly identified by the court and filed and made a part of the record by order of the court, or afterward having it reduced to writing and brought into the record by bill of exceptions.” The amended record shows that the oral testimony in the present case was ordered reduced to writing and filed as part of the record. It contains the further recital that this was done. This identifies the testimony and makes it a part of the record, just as if the oral testimony of the witnesses had been depositions and filed in the case. In Lenon v. Brodie, 81 Ark. 208, the recital of the decree was, “the depositions of witnesses taken ore tenus at the bar of the court and agreed to be filed and used as depositions in the case.” The clerk in his certificate stated that the transcript included the oral evidence. The court held that was sufficient, and that the oral testimony became a part of the record in the case by the agreement of the parties that it should be reduced to writing and filed as depositions in the case. Here the court ordered the testimony to be ‘reduced to writing and filed with the other papers in the case. It recites that this was done. The record also contains the certificate of the clerk that the transcript contains a complete recor'd of all the proceedings in the chancery court. The recital in the decree that the oral testimony should be reduced to writing and filed with the other papers in the case, coupled with the recital that this had been done, and the certificate of the clerk made the oral testimony a part of the record and no bill of exceptions was necessary. It follows that the decree will be reversed because the court erred in not setting aside the deed from C. T. McMillan to J. C. Brookfield, and the case will be remanded for further proceedings in accordance with the opinion.

Smith, J. Appellees instituted this suit to cancel a contract for the sale of a certain house and lot in the city of Ft. Smith on the ground of usury. The complaint 'alleged that on March 20, 1910, appellant, John B. Edwards, was the owner of lot 5, in block 65, in the city of Ft. Smith, and that its then value was $1,500. That, in order to obtain an exorbitant rate of interest, Edwards fixed the price of the lot at $2,250, and contracted to sell it to William Wiley at that price, payments to be made at the ■ rate of $20 per month, payable quarterly, with interest at 8 per cent., and that this price was fixed as a subterfuge whereby usurious interest might be collected. This branch of the case may be disposed of by saying that all the testimony shows that the transaction between Edwards and Wiley was one for the sale of the lot. Neither of the parties intended or contemplated a loan of money, and it was not such in fact. This was a sale, and was so intended, and the exaction of a price, however exorbitant, cannot import into the transaction the characteristics of usury, as the element of lending and borrowing money is absent. Such was the express holding of Ellenbogen v. Griffey, 55 Ark. 268, and reaffirmed in the case of Blake Bros. v. Askew & Brummett, 112 Ark. 514, and the more recent case of Smith v. Kaufman, 145 Ark. 548. Appellees amended the complaint to conform to the proof by alleging fraud in the procurement of the contract, in this, that Wiley was an illiterate negro, and unfamiliar with real estate values and business affairs, and that Edwards took advantage of his ignorance and imposed upon him by naming an unreasonable and excessive price for the property; that Wiley did not know that he was being thus imposed upon, and that therefore the minds of the parties never met upon the terms of the sale; and that, having been thus defrauded, Wiley should be held responsible only for the fair market value of the property, which did not exceed $1,500 for a credit sale; and there was a prayer that appellees be charged with that amount and a settlement be had on that basis. Wiley died intestate in April, 1920, and left as his only heirs, two sons, one of whom conveyed his half interest to his half-sister, Rebecca Ellis, who, with the other son, are the plaintiffs in this suit. Attached to the original complaint as an exhibit thereto is a copy of the contract between Edwards and William Wiley» which is signed by Edwards and by Wiley by mark without attestation of that signature. Wiley appears to have had no fixed time for making his payments, nor were they of uniform amounts, but numerous payments were made extending up to the time of Wiley’s death and aggregating $2,358.70. The testimony is in sharpest conflict as to the value of the property, and the court found the actual value of the property at the time of the sale to have been $1,700 upon the basis of a sale on time. Without setting out or reviewing here this testimony, we announce our conclusion to be that it does not appear that this finding is clearly against the preponderance of the evidence. It is contended that the contract made an exhibit to the original complaint, which is a typewritten instrument, is not in fact the contract made by the parties at the time of the sale, and that the original and genuine contract between the parties was written out with pen and ink. The court made no specific finding on this issue, but the finding made, ‘£ that no legal contract of the purchase was executed, and William Wiley was illiterate and unable to read the contract purported to have been signed in his behalf by the defendant or understand the purport thereof,” indicates that the instrument here referred to appears to be the writing made an exhibit to the original complaint and which was in fact there alleged to be the contract made between the parties. The only testimony tending to show that the contract between Edwards and Wiley was written with pen and ink, and not with the typewriter, is that of a colored woman referred to by the witnesses as Mrs. Price. Her testimony was to the effect that the contract was executed on the dining table at her home, that there was no typewriter there, and that she cleared the table and got pen and ink and went out of the room, leaving the parties to their trade. This testimony would not support a finding that Edwards had substituted a typewritten contract for one written in ink -with a pen, and certainly not when it is remembered that the contract, of which a copy was attached to the complaint, was found in Wiley’s trunk after his death, where he had probably kept it during all the years preceding his death. Moreover, Edwards testified that he sold to Mrs. Price a lot adjoining the one in litigation, and when he did so he told her that he would take $2,250 for the unsold lot, and she thereupon opened the negotiations between Edwards and Wiley which terminated in the sale. Mrs. Price did not deny this statement, and was asked nothing by appellees in regard to her reputed conversations with Edwards. Appellees discuss the effect of the failure of Edwards to have the signature of Wiley properly attested; but we think that omission is not of controlling importance. There was a contract and possession was taken under it. This possession was long-continued, and many payments of purchase money were made under it. Appellees predicate their original suit, as well as their amended cause of action, upon the allegation that there was a contract of sale, and that possession was taken pursuant to -thisf contract, and Edwards, the party sought to be charged with the contract to convey, admits that he signed it. Jones v. School District, 137 Ark. 414. It becomes unimportant, therefore, to determine the effect of the insufficient attestation of Wiley’s signature. There is no proof here of fraud except that Wiley was unfamiliar with land values, and that advantage was taken of that fact to induce him to pay an excessive price for the home which furnished him shelter until the day of his death. No attempt was made to show that any false or fraudulent representations in regard to values were made. Upon the contrary, Wiley appears to have been satisfied with his bargain, and to have made a faithful effort to comply with its terms, and, while he appears from the beginning to have been tardy with his payments, constant indulgence, extending over a period of more than ten years, was shown him, although the contract contained the provision that failure to make payments as provided should have the effect to cancel and annul the contract and to forfeit all payments previously made. We think the finding of the court below is clearly against the preponderance of the evidence. The court below, having fixed the sale price of the property at $1,700, adjudged the balance due to be $102.36, which sum was declared a lien on the property, in satisfaction of which a sale was ordered if payment was not made within ninety days. This decree will be reversed, and the court ordered to compute the balance due upon the basis of the contract price of $2,250. Appellant argues for reversal of the decree the failure of the court to sustain his demurrer to the original complaint and the action of the court in permitting the amendment of the complaint to be made; 'but, in view of the conclusion we have reached and have stated herein, it becomes unimportant to decide those questions.

McCulloch, C. J. This is an action instituted on a life insurance policy or certificate of membership issued by the Home Protective Association, a domestic corporation, to Jesse Welborn, the plaintiff, J. H. Manes, being named as beneficiary. Welborn lived nearly four years after the policy was issued, and all of the premiums or assessments were paid up to his death. During his lifetime the defendant, American Insurance Union, a foreign corporation, entered into a contract with the Home Protective Association, whereby it took over all the memberships of the latter association and assumed its obligations to its members, and issued to Welborn a certificate in the form of a rider to the original benefit certificate, certifying that the obligations of the original insurer were assumed by defendant. Defendant denies liability on the ground that plaintiff, the specified beneficiary in the certificate, had no insurable interest in the life of Welborn, and that the certificate constituted a wager contract and unenforceable on grounds of public policy. This is the sole defense offered in the case. According to the evidence adduced, plaintiff was the son-in-law of Welborn at the time the latter became a member of the Home Protective Association, and was not dependent in anywise on Welborn. Welborn was solicited to join the association, and declined, but stated that he was willing for any of his children to take a policy on his life. Thereupon the agent of the Home Protective Association procured an application from Welborn, an'd plaintiff was present and signed Welborn’s name to the application. It was agreed in advance between Welborn and plaintiff that the latter should pay the assessments and all other expenses necessary to obtain and maintain the membership. This evidence establishes the fact that the contract was, under our decisions, a wager contract, and void in its inception. Langford v. National Life & Acc. Ins. Co., 116 Ark. 527; Cotton v. Mutual Aid Union, 132 Ark. 458; Home Mutual Benefit Assn. v. Keller, 148 Ark. 361. In Langford v. National Life & Acc. Ins. Co., supra, we held that “a person may take ont insurance on Ms own life, and name any one that lie pleases as beneficiary,” even though tbe beneficiary has no insurable interest at tbe time tbe policy is taken ont; but that “an agreement between tbe assured and tbe beneficiary, having no insurable interest, to the effect that the latter shall pay the premiums, and that the policy shall be taken ont in his name, * * * * and shall be assigned to the person having no insurable interest,” will render the policy void as a wagering contract. The above declaration of the law is applicable to the present policy in its inception. However, it has been ruled by this court, in line with the weight of authority, that Only the insurer can take advantage of the ineligibility of the beneficiary in such a certificate or policy of insurance. Johnson v. Knights of Honor, 53 Ark. 255; Longer v. Carter, 102 Ark. 72. Defendant is not the original insurer, but entered into a contract to perform the original contract of insurance entered into between Welborn and the Home Protective Association. This contract contains some of the elements of one for re-insurance, in which both the'original beneficiary and the insurer are interested. The contract with defendant is, in other words, one to pay the amount of the policy according to its terms, and constitutes an absolute obligation on the part of defendant which precludes inquiry as to the validity of the original contract, which the original insurer alone could question. There is great diversity among the authorities on the various phases of liability or non-liability under a wager contract, and no case similar to the one at bar has been brought to our attention; but we think that the rule that only the insurer can take advantage of the fact that the policy is invalid applies with full force to the defendant in the present case, who, having obligated itself to perform the contract, is in no attitude to take advantage of a defense which the original insurer alone could have asserted. For these reasons the judgment was correct upon the undisputed facts, and the same will be affirmed. It is so ordered.

Hart, J. (after stating the facts). Equity jurisdiction to quiet title, independent of statute, can only 'be invoked by a plaintiff in possession holding the legal title. The reason is where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under-the guise of a bill in chancery. In such a case the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, and cases cited. So, too, under our statute any person claiming to own land that is in the actual possession of himself, or those claiming under him, may have his title to such land confirmed and quieted in the manner provided by the act. Crawford & Moses’ Digest, §§ 8362 and 8383. In the present case the plaintiff claims under a legal title, and the defendant is in possession of the land claiming to hold adversely to the plaintiff and to all other persons. The plaintiff claiming under a legal title and the defendant being in possession, the plaintiff had a full and complete remedy at law, and chancery had no jurisdiction in the premises. It is true that the defendant filed an answer setting up title in herself by adverse possession, but she did this by way of defense to the plaintiff’s action, and did not ask affirmative relief for herself. Of course, where the defendant files a cross-bill founded on matters clearly cognizable in equity, this supplies any defect in jurisdiction and places the court in possession of the whole cause and imposes upon it the duty of granting relief to the party entitled to it. The original bill and cross-bill then became but one cause, and a court of chancery takes jurisdiction where allegation of the cross-bill supply the defects of the original bill. Pearman v. Pearman, supra, and cases cited. It follows that, neither the original bill nor the answer having set up matters cognizable in equity, the chancery court was right in dismissing the complaint for want of equity, and the decree will be affirmed.

Holt, J. This is a suit by appellee, Eva John Kuhn, agent of appellant, Harold B. Youngblood, for an accounting of certain commissions on sales of real estate, and specifically, the sale of the DeSoto Hotel in Hot Springs. Appellant Youngblood, denied every material allegation in appellee’s complaint. From a decree awarding appellee $2,028, is this appeal. For reversal, appellant, Youngblood, says: “1. The decree is clearly against the preponderance of the evidence. 2. Appellee performed no compensable service according to the terms of her contract, in that she did not ‘furnish’ a buyer; hence she has no valid claim. 3. The contract of February 20, 1946, signed by appellee and appellant as manager for H. S. Realty Sales, Inc., a Mississippi corporation, was an integrated contract between appellee and the corporation, as a disclosed principal, and only the corporation could be held accountable to appellee, if, indeed, she has a valid claim.” These contentions are so interrelated that we shall consider them together. The evidence shows that appellant, Youngblood, under a contract between him and the H. S. Realty Sales Corporation of Mississippi, paid that company $1,000 for the franchise, or, exclusive right, to operate a real estate business in Arkansas under the name of U. S. Realty Sales, Inc., of Little Rock, Ark. In addition, lie agreed to pay the Mississippi corporation a certain percent of commissions on all Arkansas sales. This Mississippi corporation was not licensed in Arkansas, and the U. S. Realty Sales, Inc., was not, in fact, a corporation. Youngblood, under his contract with the Mississippi corporation, opened his office in Little Rock, and on February 20, 1946, employed appellee, Mrs. Kuhn, as his agent, under the following contract: “IT. S. Realty Sales, Inc., 314 Exchange Building, Little Rock, Arkansas. Corporation and Agents’ Agreement. This agreement entered into on this 20th day of February, 1946, by and between the IT. S. Realty Sales, Inc., Little Rock, Arkansas, a Mississippi Corporation, Home Office, Jackson, Mississippi, to be hereinafter known as the Corporation, and Eva John Kuhn, to be hereinafter known as the Agent. Whereas, the Agent desires exclusive rights to use the said copyrighted sales system in the district of Hot Springs, State of Arkansas. The Corporation does grant and assign with all of the privileges thereto pertaining unto Eva John Kuhn, the exclusive right as agent in the territory above set forth as an affiliate of the Corporation on the following terms and conditions to-wit: “The Corporation Agrees: To furnish the' agent with listings from the Main Office of properties listed with all state offices in the Corporation, by other Managers, and from other sources, and to aid, assist and cooperate to the fullest extent with the said Agent in closing of all sales. “To pay to the said Agent 30% of all commissions on all transactions in the district above set forth after the Home Office commission had been deducted, and when the buyer is furnished by the agent; and 50% of all commissions when the buyer is sold by the agent; and will pay 10% of the commission to the agent for all listings sold by the Corporation after commission of the Corporation has been deducted; and to furnish the said Agent all equipment, such as Listing Blanks, Option Forms, Advertising Layouts, etc. The Corporation agrees to pay for advertising in the above named district, to promote listings on prospects to be used by the above named Agent and Corporation. “The Agent Agrees: To operate the said business as the U. S. Realty Sales of Arkansas, to furnish the Corporation with all listings, all salable property that is priced right and worthwhile in his district; to furnish the Corporation with the name and address of all prospective purchasers of property to be found in his district, regardless of whether these parties want to buy in his district or any where else in the United States; if necessary to furnish bond at the expense of the Corporation; not to operate in any way or to he interested in any way in real estate business other than the business of the U. S. Realty Sales, Inc. The Agent agrees that if he or she desires of his own . accord to cancel this agreement he will give the Corporation at least fifteen days’ notice. It is mutually agreed and understood that the above named Agent must operate as an Agent of the U. S. Realty Sales, Inc. “That when listings, sales agreements and contracts are furnished by other parties through the Corporation or the Agent that they shall receive an agreed commission and that all net commissions, earnings, and receipts shall he divided as above set forth. (This includes listings from Realtors, Bankers, Brokers, Lawyers, etc., who usually receive 50% commission); that this instrument contains the complete agreement of the parties hereto and that if any part of this agreement is contrary to the laws of any state the same is null and void, hut that it shall not invalidate any other part of this agreement; and that this agreement is not negotiable or transferable by the Agent, except on written consent, first secured from the Corporation. “In witness whereof, the parties hereto have set their hands on the day and the year first above written. U. S. Realty Sales, Inc. By /s/ H. B. Youngblood, Manager. Witness to signature of the Manager: /s/ Helen Hays, /s/ Eva John Kuhn, Agent.” Appellee, thereafter, opened her office in Hot Springs, made a number of sales, under her contract, and received most of the commissions due her except the one in controversy here. She had authority from the owner to sell the DeSoto Hotel for $350,000. About March 18, 1946, J. Gr. Asimos of Peoria, 111., came to her office, and quoting from appellant’s brief: “The real estate agent who first contacted me in regard to the sale of the DeSoto Hotel was Harold Youngblood’s office in Hot Springs. Mrs. Kuhn, Mrs. Eva Kuhn, I believe, was in that office. The next day, I believe, about a day or two after Mrs. Kuhn first contacted me I met Mr. Young-blood. I went to the Arkansas Trust Company to see Mr. Sexton, along with Mrs. Kuhn. The discussion about the hotel first took place with Mrs. Kuhn at the Young-blood office in the Sigler Building. “Mrs. Kuhn did not talk with us about the DeSoto Hotel; she made an appointment for Mr. Youngblood to show us the hotel. I would say I finally closed the deal about three months later (paying $375,000 for the property). As a matter of fact I had gone to Mr. Young-blood’s office here relative to considering the purchase of property either in Oklahoma or Mississippi. . . . Q. Did Mrs. Kuhn have anything to do with the details with reference to the consummation of the sale of this hotel? A. Nothing except the information.” Mrs. Kuhn testified that she took Asimos to hex-banker, Mr. Sexton, and arranged for holding money in escrow until the purchase was completed. She offered to show him the hotel, but he told her he had already been through it, having previously stayed there as a guest. We do not detail the testimony, but after reviewing it all, we think the prepoxxderance thereof shows that appellee was the first to contact Asimos, found the purchaser, as agent for Youngblood, and was the procuring cause of the sale which was consummated by Young-blood. It was held in Long v. Risley, 188 S. W. 2d 132, (208 Ark. 608): “(Headnote 4) Substantial evidence justified judgment granting broker commission on sale of defend ants ’ farm listed with him on ground that broker was procuring cause, notwithstanding sale was made by defendant. (Headnote 1) A real estate agent, bringing about or procuring sale of property, placed in his hands for sale, ... or through introduction of purchaser or disclosure of his name to owner, is entitled to commission on sale price though sale is made by owner.” See, also, Murphy v. Bradley, 200 Ark. 208, 138 S. W. 2d 791, 128 A. L. R. 427. Mrs. Kuhn’s contract was solely with Youngblood. He was her manager, and she his agent. In no sense was she a rival agent of Youngblood. She had no contract with the Mississippi corporation. The contract itself not only so shows but Youngblood admitted as much in his testimony, from which we quote: “Q. (Mr. Tucker) Did you ever read this contract before you signed it? A. (Youngblood) I created it. . . . Q. Mr. Young-blood, that contract there, the form is the same form of contract you had with the U. S. Realty Sales over in Mississippi, isn’t it? A. Not exactly. Q. Well, did you change the terms of it some? A. Yes, I created that contract myself. . . . By the Court: Q. Mr. Young-blood, this contract which has been introduced, one of the contracting parties is referred to as U. S. Realty Sales, Incorporated, of Little Rock, Ark., a Mississippi corporation, home office, Jackson, Mississippi, to be hereafter known as the corporation. Is the IT. S. Realty Sales, Incorporated, of Little Rock, Arkansas, an Arkansas corporation? A. (Youngblood) It is not, your Honor. Q. Did you have any Arkansas corporation at all? A. I did not, Sir. Q. You operated under just a trade name of IT. S. Realty Sales of Arkansas? A. That is right; that was a trade name through the corporation in Mississippi.” The trial court found, as reflected in the decree: “And the court being well and sufficiently advised as to all matter of fact and law arising herein doth find: that there existed a contract between plaintiff and defendant Harold Youngblood for division of commissions on sale of real estate; that the plaintiff should recover judgment for her commission on the sale of the DeSoto Hotel; that the total commission paid by the owners of the DeSoto Hotel according to their interpleader filed in this court in case No. 77745 was $8,450; that the U. S. Realty Sales Corporation of Mississippi, or the ‘home office’ commission out of this amount as alleged in their answer and as adjudicated in said case was $1,690, or 20% of the total amount; that the remaining-Youngblood and Kuhn commission on the DeSoto Hotel sale was $6,760; and that the plaintiff, Eva John Kuhn, is entitled to 30% of that amount under the terms of her contract, or the sum of $2,028; and that the testimony was insufficient to establish that she is entitled to commission on any other property mentioned.” After a careful review of the record, we are unable to say that the findings of the Chancellor were against the preponderance of the evidence and accordingly, the decree must be, and is affirmed.

Griffin Smith, Chief Justice. A direct appeal by Armitage is from a judgment that as attorney he retained as a fee $379.28 more than the charge should have been for services rendered Louis Lexton Morris in two transactions involving an estate. Armitage has also appealed from dismissal of his cross-complaint against Morris, Owen C. Pearce, and Culbert L. Pearce, alleging damages for defamation of character. Morris has cross-appealed from the. judgment allowing Armitage compensation in any sum, and from the Court’s refusal to hold that in remitting $1,896:81 to Cox & Company without his client’s authority, Armitage converted the fund. Walter B. Morris died in California in November 1943. His nearest of kin were a brother and a sister: Aim Dye and Louis Lexton Morris. For many years Louis and Ann had resided in White County, near Searcy, Arkansas, and neither knew where Walter was; nor were they informed of his death. Aun died in January 1944, unmarried and without issue. Louis was appointed Administrator January 26, 1944. His only report, approved February 23, 1945, disclosed net assets of $3,898, which went to Louis by descent and distribution. The Court’s order of approval discharged the administrator and the United States Fidelity and Guaranty Company ‘ ‘ of all liability on the bond executed by said Administrator. ’ ’ In May 1946 W. C. Cox & Company, a corporation domiciled in Chicago, wrote Louis that his brother Walter had died “in a West Coast city,” leaving a valuable estate. The suggestion was that for a share in the net proceeds the corporation would bring about a settlement of the estate, otherwise the assets would escheat. Morris, after conferring with Armitage, contracted with Cox & Company on a contingent basis, the corporation to receive forty percent of the net estate. Armitage says that when this agreement was made a Cox representative was present, and prepared a separate contract for Morris to sign under which the attorney would receive five percent, payable by Morris. He protested that the amount was insufficient, hut left the matter for later determination. In August the Superior Court for Los Angeles County, California, required information regarding Ann Dye Morris, whose estate was shown to he in process of administration. As a result of further discussions with Morris, Armitage procured from the Probate Clerk at Searcy a certificate that Lewis Lexton Morris as Administrator had not been discharged. In February 1947 the Public Administrator for Los Angeles County sent the Cox Company two checks, each for $4,742.03: one payable to Morris personally, the other to him as Administrator. They were dated February 13. It is contended by Armitage that, when complications arose regarding what would- have been the dis tributive share of Ann if she had lived, Morris agreed to pay him ten percent of the net amount of Walter’s estate, and also told him to go ahead and handle the collections as his best judgment suggested. When Cox received the California checks, the one payable to Morris was indorsed under power of attorney, and the Company’s check for sixty percent was sent to Armitage — $2,845.22. Cox sent the other California check to Armitage without indorsement. Armitage indorsed, “L. L. Morris, Gordon Armitage, Attorney,” and deposited to his own credit in a Searcy bank the Cox check for $2,845.22, and on March 8, 1947, caused Morris to execute a form reading: “Received of Gordon Armitage $4,742.04 — Security Bank deposit 3-6-47, $2,371.02, and cash in the sum of $2,371.02, the receipt of which is hereby acknowledged.” Actually, Armitage had deposited to the credit of Morris’ account $2,371.02, and the difference of $474.20 was subsequently claimed by him as ten percent on the California payment of $4,742.02. There remained the second California check. On March 3d — five days before the receipt from Morris was dated — Armitage sent to Cox his personal check for $1,896.81, representing forty percent of the Ann Morris transaction. In procuring clearance of the California check, Armitage indorsed it, “Lewis Lexton Morris, as Administrator of the Estate of Ann Dye Morris, Deceased, heir-at-law. By Lewis Lexton (X) [his mark] Morris. Witness to mark: Gordon Armitage [and] Melba J. Haynie, Searcy, Ark. Gordon Armitage, Attorney. ’ ’ With these endorsements Security Bank accepted the check February 27. On March 26th Armitage bought bonds for Morris’ account. He testified that during tbe intervening twenty days “I had kept tbe $2,371.02 in my lock box.” Late in May, 1947, in a communication prepared by tbe law firm of Owen C. and Culbert L. Pearce, Morris complained to Armitage that of tbe sixty percent released by Cox [amounting to $5,790.44] be bad received but $2,371.02. He mentioned that tbe attorney was entitled to a fee of $237.10;’and demand was made for the remainder. Armitage replied (May 31) in a letter addressed to Cul. L. Pearce. One of bis statements was: “I have in my files a receipt from Lewis of all sums due him. I also have bonds that belong to bim that no one [else] can cash, which were purchased for him on that basis.” Armitage expressed a willingness to deliver tbe Securities to some responsible person, “[for] Lewis, in my opinion, has in tbe last year reached tbe point where be is not capable of looking after bis best interests. . . .” A Court order directing Armitage to produce certain.records found that on July 11 “the defendant deposited with tbe Clerk of tbe Probate Court U. S. Series E. bonds aggregating $3,150 face value, which be says be bought with funds belonging to plaintiff as Administrator. ’ ’ Armitage testified that when be deposited $2,371.02 to Morris’ credit March 8th “and obtained a like amount in cash,” tbe receipt formerly referred to was prepared “for tbe full amount to be paid over.” Armitage says that after Morris signed tbe receipt be told him “we” should buy bonds with the cash, but Morris refused to do so. It is contended by Armitage that tbe Ann Morris estate was in process of administration in 1947, irrespective of tbe fact that in February 1945 a Court order bad discharged tbe Administrator from bond liability, and bad relieved U. S. F. & Gr. as surety. But assuming administration bad not been closed, Probate Court, as distinguished from Armitage personally or in his capacity as attorney, was the appropriate depository for the California check, or its proceeds. It requires no citation of authority to sustain the proposition that an attorney is inconsistent when upon the one hand he treats his Administrator-client as competent to contract for a fee, competent to authorize payment from estate funds without a Court order, competent to make personal contracts relating to money not bound up with a sister’s estate, but, upon the other hand, wholly incompetent to handle his own affairs, or to function in an official capacity judicially conferred. The trial Court seemingly believed that unnecessary delays in making settlement, unauthorized indorsements, and a want of diligence in discharging professional duties, created a situation demanding legal action by Morris, and relieving him of further financial obligation to Armitage, irrespective of what the original contract may have been. We have the same views. In his cross-complaint Armitage alleged that he had been charged with forgery,, and otherwise libeled. The Court did not err in declining to award damages. Indorsement of Morris’ name by mark was a subterfuge. Armitage insisted that as attorney he had general power to sign for his client. This is not the law. Mere existence of the relationship of attorney and client does not imply that the attorney has authority to sign a client’s name to checks, drafts, or other negotiable paper. In the case at bar there was no need for the action taken. It was admitted that Morris could write. He filed a signature specimen, written in the Court’s presence. The contract, and the power sent to Cox at the direction of Armitage, were signed by Morris. Melba Jo Haynie testified that Armitage asked her, as his secretary, to witness the mark; and, she said, “Morris wasn’t in the office I was in.” When asked why he took the receipt from Morris on March 8, Armitage replied, “I knew he wasn’t competent to sign it then, [but] I took it just as a matter of record.” In response to the question, “If you didn’t think the receipt was any good, why did you take it?” Armitage replied, “I don’t know that I should answer that. . . . ” Armitage did not contend that Morris authorized him to sign the check, by mark or otherwise. In the light of this record the trial Court believed that, although a contract to pay ten percent was shown, services under it fell short of mutual intentions.' Because of the breach Morris was entitled to the judgment rendered. The two California checks were, in a sense, treated as separate transactions, and since Morris was not injured by the diversion complained of when Cox was paid for the services rendered up to that time, the Chancellor’s action on that part of the complaint will be affirmed. In the cross-complaint Armitage alleged injuries as for libel. The matter to which he took exceptions, whether justified of not, was in a sense invited. It was a consequence of his refusal to cooperate. There was no evidence that the cross-complainant’s reputation was injured, and at most no more than nominal damages could be awarded. The Court was correct, however, in finding for the cross-defendants on this issue, and the decree in its entirety will be affirmed. It is so ordered. A letter from Cox dated February 21 mentioned that the check was being sent to Armitage. A post script is: “. . . We have decided, upon advice of our bankers, not to indorse the Administrator’s distributive share under the authority given in the power of attorney, but, on the other hand, to send it direct to the Administrator for his personal indorsement. We therefore hand you [the California check] .. . in the face amount of $4,742.03. ... It is very likely that a certified copy of Letters of Administration will have to be produced when the check is presented for payment.” Throughout the record “Louis” and “Lewis” appear, and the spelling in this opinion corresponds with usage at a particular time or place.

Ed. F. McFaddin, Justice. This appeal presents a controversy that has been intermittently in litigation since 1896; and involves the same parties and the same land as were before ns in Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175. U. W. Jett was the husband of the present appellee, Mrs. Nora L. Bates. Jet owned a farm of 67 acres; and in 1894 he and the appellee signed and delivered a deed of the farm to appellant, Mrs. Eva E. Gibbs. The grantee never obtained possession of the lands. U. W. Jett died shortly after the execution of the deed, leaving surviving his widow and one son who died in 1916. Litigation began after the death of U. W. Jett: (a) in 1896 Eva E. Gibbs filed a suit against Nora Jett (now Nora L. Bates), seeking possession of the land. Answer was filed, and judgment was rendered in favor of the defendant, (b) In 1897 Eva E. Gibbs filed a complaint in the St. Francis Circuit Court, praying for possession of the land, but finally took a nonsuit in that case. (c) In August, 1920, Eva E. Gibbs filed a suit in the St. Francis Chancery Court against Nora L. Bates, in which the relief sought was the quieting of title of plaintiff. The evidence showed that Eva E. Gibbs was not in possession of the land, and her suit was dismissed by the Chancery Court; and that decree was affirmed by this Court in 1921, in the case of Gibbs v. Bates, supra. Mrs. Nora L. Bates continued in possession of the land at all times herein mentioned; and on January 7, 1948, filed in the Chancery Court this present suit to quiet her title. Mrs. Bates alleged: (a) that she was in sole and exclusive possession of the land, and had held the same continuously in actual, open, visible, notorious and adverse possession, under a claim of ownership, for more than 40 years; and (b) that Mrs. Gibbs had actual knowledge of such possession' and claim of ownership on the part of Mrs. Bates for more than 25 years. Mrs. Gibbs admitted Mrs. Bates’ possession, but claimed that Mrs. Bates was merely a tenant for life, and therefore could not claim by adverse possession and have her title •quieted. Mrs. Gibbs insisted that the deed she held from U. W. Jett and wife conveyed the fee title, subject only to the dower and homestead of Mrs. Bates; and that upon Mrs. Bates’ death the lands and possession would pass to Mrs. Gibbs by virtue of said deed. The issue was thus joined as to whether Mrs. Bates had acquired the fee title by adverse possession. The Chancery Court found for Mrs. Bates, and entered a decree quieting her title; and this appeal challenges that decree. "We have a wealth of cases which recognize the rule that possession of a life tenant is not adverse to the remainderman. Nothing herein is opposed to the said rule of those cases; but we hold that the said general principle has no application to the case now before us. The relationship between Mrs. Bates and Mrs. Gibbs was never that of a life tenant and a remainderman, because the deed to Mrs. Gibbs did not undertake to create a life estate and a remainder. In Wallace v. Wallace, 179 Ark. 30, 13 S.W. 2d 810 Mr. Justice McHaney, speaking for this Court, discussed remainders and how they were created: “ ‘A remainder,’ says Mr. Tiedeman, ‘is therefore a future estate in lands, which is 'preceded and sup ported by a particular estate in possession wbicb takes effect in possession immediately upon tbe determination of the prior estate, and wbicb is created at tbe same time and by tbe same conveyance.’ Tiedeman on Real Property (3rd Ed.), section 296. “A remainder is a residue of an estate in land, depending upon a particular estate, and created together with tbe same. 2 Tbo. Co. 126. After quoting tbe above definition, Professor Graves, in bis notes on Real Property, section 173, commenting thereon, says: ‘In order that there may be a remainder, there must be a particular estate upon wbicb it may depend; . . . ’ ” Tbe deed from Jett and wife to Mrs. Gibbs did not attempt to create a remainder in Mrs. Gibbs’ based on a prior life estate to Mrs.- Bates; and Mrs. Bates’ claim that tbe deed was void certainly could not have made tbe relationship to be that of life tenant and remainder-man, because such relationship did not arise at tbe time the deed was signed. If we say that tbe 1894 deed signed by Jett and wife was void insofar as Mrs. Bates was concerned, then all that Jett conveyed to Mrs. Gibbs was bis interest in tbe land subject to Mrs. Bates’ dower and possibility of homestead; and we have repeatedly held that the widow, by notice, may commence tbe running of adverse possession in her favor against tbe heirs. In Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521 the widow bad only a dower right, but by adverse bolding she acquired tbe fee as against tbe heirs, even though they never bad dower assigned to her. Even though her entry on tbe land is presumed to be permissive, and not in hostility to the heir until tbe fact of hostility is affirmatively proved, nevertheless, in that case such hostility was shown. In Clark v. Wilson, 174 Ark. 669, 297 S.W. 1008, we reviewed a number of cases on this question as to when tbe bolding by tbe widow may become adverse to tbe heirs; and we quoted from Watson v. Hardin, 97 Ark. 33, 132 S.W. 1002: “ ‘ . . . . it is true that her claim and possession might have been of such a nature as to amount io an entire disseizin of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before her possession could become adverse, it was necessary for her to first repudiate the title (of her husband) and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of. title as widow should be brought home to the heir.’ ” And then we continued: “But it was there also said that the widow might acquire title by adverse possession against the heir if her disclaimer and hostile possession was so open and notorious as to raise a presumption of notice to him. ’ ’ In the case at bar, certainly the allegations (hereinafter to be discussed) in the 1920 suit between these parties constituted notice to Mrs. Gibbs that Mrs. Bates was claiming the fee title by adverse possession; so the rule of the foregoing cases is applicable if the 1894 deed be void insofar as Mrs. Bates is concerned. On the other hand, if we say that the. 1894 deed signed by Jett and wife was valid insofar as Mrs. Bates was concerned, then Mrs. Bates has all these years-been a grantor remaining in possession of the property; and our cases recognize that such a person can acquire a title by adverse possession against the grantee by lapse of many years and notice of hostile holding. In Davis v. Burford, 197 Ark. 965, 125 S.W. 2d 789 we reviewed the cases involving a lapse of many years. In Stuttgart v. John, 85 Ark. 520, 109 S.W. 541, we recognized that if the occupancy and use of the premises by the grantor be manifestly inconsistent with that of the grantee, and notice of the hostility of the claim is brought home to the grantee, then the statute of limitations will be set in operation in favor of the grantor and against the grantee. So, whether the deed from Jett and wife to Mrs. Gibbs in 1894 be valid .or void — -in either event — it was legally possible for Mrs. Bates, by remaining in possession and by presenting notice of adverse possession to Mrs. Gibbs, to start tbe running of tbe statute of limitations in favor of Mrs. Bates and against Mrs. Gibbs. Our opinion in Gibbs v. Bates, supra, was rendered in 1921 and was the culmination of the suit that Mrs. Gibbs had instituted against Mrs. Bates in 1920. In the statement of facts in that opinion we said of Mrs. Gibbs: “Her complaint further states that Nora L. Bates makes an adverse claim to the land, . . . . ” Of Mrs. Bates’ possession, we said: “The defendant claimed title by adverse possession......” Certainly, our opinion in 1921 showed that Mrs. Bates was claiming the title by adverse possession, and the result of that case clearly indicated that Mrs. Gibbs should have proceeded at law by action in ejectment if she desired to recover the premises. Instead, she did nothing from 1921 to 1948 so far as the record here shows. Mrs. Bates remained in possession, and has now filed suit to have her title quieted. In Cunningham v. Brumback, 23 Ark. 336, this Court adopted as its own the language of Judge U. M. Rose: “The law wisely holds that there shall come a time when even the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed, than that ancient strife should be renewed.” Our statutes and our cases recognize that if a person takes possession of land and holds the same under a claim of ownership continuously, openly, adversely, etc., for more than seven years, then such person acquires a title by adverse possession and is entitled to prevail in an action to quiet title. That is the situation of Mrs. Bates in the case at bar. The Chancery Court granted* her that relief, and we find the decree to be correct.' Affirmed. In defending one of these suits, Mrs. Bates set up that the 1894 deed was void because of her minority. Some of these cases are: Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796, 46 Am. St. Rep. 151; Killeam v. Carter, 65 Ark. 68, 44 S. W. 1032; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81, 84 S. W. 1044; Stricklin v. Moore, 98 Ark. 30, 135 S. W. 360; Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A, 999; LeSieur v. Spikes, 117 Ark. 366, 175 S. W. 413; Smith v. Maberry, 148 Ark. 216, 229 S. W. 718; Sadler v. Campbell, 150 Ark. 594, 236 S. W. 588. See, also, 33 Am. Juris, 508, “Definitions and characteristics of a remainder.” Sections 10958, et seq., Pope’s Digest and §§ 34-1901, et seq., Ark. Stats. of 1947. Van Etten v. Daugherty, 83 Ark. 534, 103 S. W. 737; Elliott v. Pearce, 20 Ark. 508; Cofer v. Brooks, 20 Ark. 542; Pillow v. Roberts, 12 Ark. 822; Skipwith v. Martin, 50 Ark. 141; 6 S. W. 514; Hudson v. Stillwell, 80 Ark. 575, 98 S. W. 356.

Minor W. Millwee, Justice. Appellants are commissioners of Street Improvement District No. 1 of Booneville, Arkansas, organized for the purpose of paving certain streets in that city. On petitions presented to the city council, it found that they contained more than 66 2/3% of the assessed value of the real property within the proposed district and passed an ■ordinance creating the district. This ordinance was passed January 5, 1948, and published on January 8, 1948. Appellees are four landowners in the proposed district and signed the petition for its creation. On February 4, 1948, they, together with other owners in the proposed district, filed suit in chancery court challenging the validity of the district on various grounds. On February 27, 1948, appellants filed a motion to require the plaintiffs in that suit to make their complaint, and an amendment which had been filed thereto, more definite and certain. In response to this pleading, the plaintiffs filed an additional amendment to their complaint. On March 12,1948, appellants filed a demurrer to the complaint as amended for the reason that it did not state' facts sufficient to constitute a cause of action. This demurrer was sustained on March 29, 1948, and plaintiffs declining to plead further, a decree was entered dismissing the cause. There was no appeal from this decree. In the spring of 1949, a contract was made for the construction of the improvements and assessment of benefits made and filed. The ordinance levying the assessment of benefits was published April 26, 1949. On May 24, 1949, appellees filed the instant suit to restrain appellants from proceeding with the improvement and challenging the validity of the district on the grounds hereinafter discussed. The answer of appellants contains a general denial of some of the allegations of the complaint and pleas of res judicata and the thirty day statute of limitations as to other allegations. On final hearing the chancellor found in favor of appellees on two issues: (1) That there had been no ordinance passed by the city council fixing the grade of streets to be improved; and (2) that the commissioners were without authority to omit the improvement of certain lands in the southwest part of the district belonging to Mrs. E. M. Elkins. The commissioners were enjoined from proceeding with the improvement until an ordinance fixing street grades was passed and were ordered to proceed with the assessment of the Elkins property. The complaint was dismissed as to other matters pleaded by appellees. Both sides have appealed. THE CROSS-APPEAL Appellees ’ first contention is that the ordinance creating the district was void because of an error in publication thereof on January 8, 1948, and that the chancellor erred in refusing to so find. It is undisputed that the petitions and the ordinance as passed by the city council provide for paving on Bennett Avenue of two blocks 30 feet wide, one block 60 feet wide and the re-_ maining six blocks 20 feet wide. The six blocks last mentioned are properly described as running from the “North line of Third Street to center line of Ninth Street.” The ordinance as published makes the same provision as to the 30 and 60 foot paving but under the' heading, “20 feet width pavement” lists the blocks to be paved on Bennett Avenue as running from the “North line of Railroad Avenue to center line of Ninth Street,” which is the entire length of Bennett Avenue. Thus the 20 foot paving on Bennett Avenue was erroneously listed as beginning at the “North side of Railroad Avenue” instead of the “North side of Third Street” resulting in a duplication in description as to three blocks. It is noted that the instant suit was begun more than a year after publication of the ordinance creating the district. Appellees were parties to the original suit in which a general demurrer was sustained and the cause dismissed. In that suit appellees filed a printed issue of the newspaper in which the ordinance was published as an exhibit to their complaint. The error was apparently clerical and the objection to the publication of the ordinance creating the district was a matter that could and should have been litigated in the former suit. An examination of the record shows that the pleading filed by plaintiffs in the original suit on March 3, 1948, was not an amended and substituted complaint as now urged by appellees, but was merely an amendment to the original complaint and that the court sustained appellants’ general demurrer to the complaint as amended. In Tri-County Highway Improvement District v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627, this court approved the following statement by Chief Justice Waite, speaking for the court in Alley v. Nott, 111 U. S. 472, 4 S. Ct. 495, 28 L. Ed. 491: “A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is equivalent to a general demurrer to a declaration at common law, and raises an issue which, when tried, will finnally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, and not the settlement of a mere matter of form in proceeding. There can be no other trial except at the discretion of the court, and, if final judgment is entered on the demurrer, it will be a final determination of the rights of the parties which can be pleaded in bar to any other suit for the same cause of action. ’ ’ This court also held in Stevens v. Shull, 179 Ark. 766, 19 S. W. 2d 1018, 64 A. L. R. 1258 (Headnote 3) : “Where the validity of an improvement district was sustained by the chancellor’s decree in a suit attacking the validity thereof, such decree operated as a bar to all grounds of attack in subsequent suits which might have' been interposed in the first suit; though there may have been different plaintiffs in various suits.” The reason for the rule is set out in the opinion to the effect that unless matters which might have been pleaded are barred by the decree, there would be no end to litigation until the money of the parties or the ingenuity of counsel for suggesting additional grounds for attack had been exhausted. Many other cases supporting this rule are collected in West’s Arkansas Digest, Vol. 11, Judgment, Key No. § 713 (2). Since we conclude that appellants ’ plea of res judicata is well taken, it is unnecessary to decide whether appellees were also barred by the 30 day statute of limitations. (Ark. Stats., (1947), § 20-108.) Appellees ’ next ground of attack on the validity of the district is that cost of the improvements exceeds forty per cent of the assessed value of the real property of the district. In organizing the district it was discovered that none of the public and charitable property located in the district had been listed on the county-assessment records as required by Ark. Stats., (1947), §§ 84-459 and 84-460. On November 4,1947, the tax assessor filed a list of such exempt property with the county clerk. The estimated cost of the improvement was $158,780.52, and the assessed value of all real property in the district as certified by the county clerk was $417,462. Appellees offered testimony to show that the exempt property had been valued by the clerk at actual rather than assessed value and that, if the true assessed value had been made, the cost of the improvement would have exceeded forty per cent of the total assessed value of the real property of the district. Ark. Stats., (1947), § 20-108, provides for a hearing on the petition to determine whether two-thirds in assessed value of the property owners have signed the petition and further provides that the finding of the city council shall be conclusive unless attacked by suit in chancery court within 30 days after publication of the ordinance. It is true that appellees did not know the estimated cost of the improvement before expiration of the 30 day period, but they had knowledge of the filing of the list of exempt property and assailed it in their first suit and further alleged that owners of the necessary 66 2/3 per cent of the assessed value of lands had not signed the petition. The city council necessarily had to find the total assessed valuation of lands in the district in order to determine whether owners of the requisite two-thirds in assessed value had signed the petition. This finding became conclusive under the plain terms of the statute unless attacked within 30 days after publication of the ordinance and the trial court correctly determined this issue. Appellees ’ next ground of attack is that the district assessors followed the front foot rule in assessing benefits which resulted in said assessments being arbitrary and discriminatory and not.on the basis of benefits actually received. Appellees offered testimony showing assessments on only three pieces of property. On two of these the assessments amounted to $4 per foot. One of these tracts was owned by appellee, A. F. Tiffin, who testified there was a tract one block north of his property with the same area and footage on which the assessment of benefits was slightly more than one-half the assessment against his property. The assessors téstified that in making the assessments they considered each of the 578 tracts separately and took into consideration whether the property was business or residence property, vacant or improved, the distance of improvements from the pavement, the width of the pavement, the front footage and other factors bearing upon a fair and proper assessment. The finding of the chancellor that the assessment was validly made and that the assessors did not follow the front foot rule is not against the preponderance of the evidence. Stevens v. Shull, supra, and cases there cited. Appellees next attack the validity of the district because of the following provision of a contract entered into by the commissioners: ‘‘ The owner may, at any time befor,e final completion of the work, by written notice, order additional work to be done, or any portion of work to be omitted or make any changes that may be deemed necessary or advisable.” This is a separate ground of attack from that made with reference to omission of the Elkins property from the improvement which will be considered on the direct appeal. The mere making of the contract, though invalid, would not affect the validity of the district — at least until the commissioners actually propose to omit or do additional work under it. If and when this occurs, it will be time enough for the landowners to complain. THE DIRECT APPEAL Appellants say that appellees failed to show that the city of Booneville had not fixed the grades of streets as required by Ark. Stats., (1947), § 20-301. The city clerk, who could not be termed a witness friendly to appellees, testified that the earlier ordinance records were in a shoddy condition. He had found no ordinance fixing-street grades, but would not say whether or not such had been enacted. Evans Digest of the ordinances of the city adopted in 1936 did not contain such ordinance, but it did not include special ordinances adopted in connection with improvement districts. A former mayor for eight years testified that he knew the ordinances of the city about as well as anyone and that no such ordinance had ever been enacted to his knowledge. While this testimony was necessarily negative in character, we cannot say that the chancellor’s finding that no ordinance had been passed fixing the grade of streets to be improved is against the preponderance of the evidence. Section 20-301, supra, does not require that the grades shall be established before the district is formed or the plans made, but contemplates that such grades may be established at any time when the improvement may be made in conformity therewith. McDonnell v. Improvement District, 97 Ark. 334, 133 S. W. 1126. It follows that the chancellor correctly restrained appellants from proceeding with surfacing of the streets until such ordinance is passed. Appellants next contend the trial court erred in the following finding: ‘ ‘ The Court finds and holds that it would be to the best interest of all the taxpayers in the improvement district to omit the unplatted land belonging to Mrs. E. M. Elkins in the southwest corner of the district from the improvement, but the Court is of opinion that the Commissioners are without authority to omit the proposed streets in the Elkins property from the improvement. ’ ’ It is undisputed that E. M. Elkins owned a ten acre unplatted tract in the southwest section of the district which he wanted to develop; that he took the commissioners to the property and agreed to dedicate the streets and he and his wife signed the first petition for the improvement. After the district was created including his property, Mr. Elkins died and his widow did not wish to dedicate the streets or have the improvement made. The commissioners decided to eliminate the property from the improvement. We agree with the chancellor’s conclusion that the commissioners were without authority to omit the Elkins property even though it may.now be to the best interests of all that it be excluded. In the recent case of Calico v. Huntsville Paving Improvement Dist. No. 1, 215 Ark. 569, 221 S. W. 2d 769, we said: “While the details of construction may be left to the judgment of the commissioners, it is essential that the petition describe with certainty the improvement proposed. The landowners, not the commissioners or the city council, must decide what streets are to he paved. Less v. Improvement Dist. No. 1 of Hoxie, 130 Ark. 44, 196 S. W. 464.” See, also, Ahren v. Paving Improvement Dist. No. 53 of Texarkana, 181 Ark. 1020, 29 S. W. 2d 265. If the commissioners could leave out the Elkins property, they might decide to omit other property when other landowners in the district may have signed the petition with the understanding that such property was to be included. The decree is affirmed on both direct and cross-appeal.

Ed. F. McFaddin, Justice. Appellant and appellee were rival claimants to the ownership of a tract of approximately six acres lying on the outskirts of Little Rock. The original owner — insofar as concerns this suit — was W. W. Wilson. Appellee claimed title by virtue of a warranty deed from the heirs of Wilson; appellant claimed by virtue of (1) a tax title and (2) a deed from Fred Durst, who — appellant contends — acquired title by adverse possession against Wilson. Appellee (as plaintiff) filed suit in the Chancery Court, and deraigned his own title and asked that it be quieted. Appellant corporation (as defendant) filed a general denial, and also affirmatively asserted Durst’s adverse possession and his deed to the defendant. The prayer of the answer was that the defendant’s title be quieted. From a decree quieting the plaintiff’s title, the defendant brings this appeal. I. Defendant’s Tax Title. Before this Court the defendant is seeking to prevail on its tax title because of plaintiff’s failure to offer any proof of the invalidity of the tax forfeiture. In the complaint it, was alleged that the defendant acquired a deed from the State in 1946, that the State’s claim was based on a 1932 tax forfeiture, that the tax forfeiture was void, and that a tender had been made of all taxes. The plaintiff alleged, as one of the reasons for the invalidity of the 1932 tax forfeiture, that the tax sale price included a tax of 5/8ths of a mill for the Firemen’s Pension and Belief Fund of Little Bock, and that this was in excess of the five mills allowed for city purposes. In its answer defendant denied generally all allegations of the complaint, and the effect of this denial extended not only to the invalidity of the tax sale, but also to the existence of the tax deed. So, if the invalidity of the sale was not proved, neither was the existence of the defendant’s tax deed established. The alleged deed from the State to defendant was never introduced in evidence. Neither was there any sufficient attempt to prove that the defendant had such deed. All that appears on this point, in the transcript, is an exhibit prepared by the Pulaski County Clerk, showing the record of tax payments by W. W. Wilson and his estate from 1914 to 1932; and this exhibit says of the land here involved: “This call was sold to the State for the 1932 tax. . . . This call was bought in by Arkansas Beal Estate Company.” The foregoing quoted statements are contradictory, since at the collector’s sale the land could not have been “sold to the State”, and at the same time be “bought in by the Arkansas Beal Estate Company.” Furthermore, this tax record statement does not negative a pos sible redemption; and is entirely inadequate proof that a deed of any kind was ever issued by the clerk, either to the State or the Arkansas Real Estate Company. From the condition of the record before us, we conclude that the defendant abandoned in the trial court all reliance on its alleged tax title, and that such abandonment accounts for the failure of the plaintiff to prove the invalidity of the tax sale. We are strengthened in this conclusion by the existence of a stipulation made between the parties during the course of the trial, and reading: “It will be ascertained from the State Land Commissioner what taxes are due on this land based on the assessment that they forfeited for in 1932 down to the present time, and Mr. Keaton will pay that amount into the registry of the court.” The fact that defendant stipulated “what taxes are due”, and that such amount might be paid into the registry of the court, indicates that the defendant was not then claiming that it had paid all taxes under a valid tax deed based' on any forfeiture. We therefore hold the defendant abandoned its tax title claim in the trial court, and cannot rely on it in this Court. II. Defendant’s Title Acquired from Durst. On March 27, 1947, Fred Durst executed a quitclaim deed to the defendant; and the real issue in the trial court was whether Durst had acquired the property by adverse possession so as to invest the defendant with a title. Durst testified that he held the land adversely for many years (in excess of seven) before making the deed to defendant; but Durst’s testimony was successfully impeached. It was shown that prior to the institution of this suit, Durst had informed other people that he never claimed any interest in the land, and had all the time occupied it by permission of Wilson. Besides Durst, other witnesses called by the defendant testified that Durst used the land for pasture. purposes; but such testimony by these other witnesses was inconclusive, and insufficient to establish that Durst’s possession was adverse rather than permissive. From the evidence, the Chancery Court might well have found that Durst’s possession was originally by permission of Wilson, and never became adverse within the purview of our cases, such as Dial v. Armstrong, 195 Ark. 621, 113 S. W. 2d 503; Norman v. Sharp, 206 Ark. 744, 177 S. W. 2d 401; Masters v. Haynes, 169 Ark. 1177, 278 S. W. 12; and Fry v. Grismore, 151 Ark. 4, 235 S. W. 373. See, also, other cases collected in West’s Arkansas Digest, “Adverse Possession”, § 85(4). We cannot say that the decree of the Chancery Court is against the preponderance of the evidence. There remains in the registry of the Chancery Court the tax money deposited by appellee, which may now be distributed. Affirmed. As a matter of information (not proved in this case) we call attention to the fact that in each of the eases, Adamson v. Little Rock, 199 Ark. 435, 134 S. W. 2d 558, and in Schuman v. Walthour, 204 Ark. 634, 163 S. W. 2d 517, we held to be void a tax sale which included this item.

Ed. F. McFaddin, Justice. On February 2, 1940, W. W. Smith and N. E. Smith, his wife, for money borrowed, executed to J. T. Grrimsley their joint and several promissory note for $477.50 due one day after date. The present suit, for recovery on said note, was filed by Grrimsley on April 1,1947. Chancery jurisdiction was because of equitable garnishment. W. W. Smith died after the suit was filed, and his administrator was a party in the lower court. N. E. Smith (the only appellant here) pleaded the statute of limitations as one of her defenses. The Chancery Court found against her on this plea, and the correctness of that finding is the sole question on this appeal. ' At the outset we state certain general rules: 1. The statute of limitations applicable to a promissory note is five years after maturity, as fixed by § 8933, Pope’s Digest, and § 37-209 of Ark. Stats, of 1947. Part payment, before the bar attaches, forms a new point from which the statute will begin to run. Less v. Arndt, 68 Ark. 399, 59 S. W. 763. See, also, other cases collected in the note following § 37-218 of Ark. Stats, of 1947. 2. Part payment of a debt by one joint and several debtor before the bar of the statute of limitations will bind tbe other debtor. Fendley v. Shults, 142 Ark. 180, 218 S. W. 197. 3. Part payment by one of the joint and several debtors after the note is barred does not revive the debt as to the co-debtor, who has made no snch payment. Slagle v. Box, 124 Ark. 43, 186 S. W. 299. 4. When the statute of limitations is pleaded by the defendant, and a part payment is relied on by the plaintiff to interrupt the statute of limitations, then the burden is on the plaintiff to prove that part payment was made at such time as would interrupt the running of the statute. Taylor v. White, 182 Ark. 433, 31 S. W. 2d 745. 5. When part payment is pleaded to interrupt the running of the statute, then the person so pleading must show the part payment to have been made in fact at a time that would interrupt the statute. Mere endorsement of the payment on the note is not sufficient proof. Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089, 59 A. L. R. 899; Bank of Mulberry v. Sprague, 185 Ark. 410, 47 S. W. 2d 601. The application of the five foregoing and well-established rules necessitates a reversal of the decree in the present case, because the date of the alleged partial payment was never shown by any proof. Only two witnesses testified regarding such part payment. One was the plaintiff, J. T. Grimsley; and the following is his entire testimony on this point: “Q. What is the date of the note? A. February 2,1940. Q. Has this note been paid? A. No, sir. Q. Has Mrs. N. E. Smith paid anything? A. No, sir. Q. How much was ever paid on this note to you? A. One dollar to renew the note. Q. I believe you said this defendant, Mrs. Smith, never paid anything? A. Mrs. Smith never paid anything, but Mr. Smith did.” The note was introduced in evidence, and it bore this notation on the reverse side: “November 2, 1944, paid $1.00 on note to renew.” It must be remembered that J. T. Grimsley never testified that the payment was made on November 2, 1944. All that Ms testimony shows is that W- W. Smith paid $1.00 “to renew.” The date of the payment was never stated by this witness. The only other witness testifying as to the part payment was Mr. Lindsey. He said, as to a conversation he had with W. W. Smith: “Q. You say you had a conversation with him about this note? A. Yes, sir. Q. State whether or not he told you that he had made a payment on the note? A. Yes, a dollar on it. . . .” Even if Mr. Lindsey’s testimony was competent (a matter not necessary to be decided), still Mr. Lindsey did not attempt to fix the date of the payment on the note. So there is no testimony to show the date that the alleged payment was made. In order to hold the appellant, N. E. Smith, liable on the note as against her plea of limitations, the burden was on appellee, Grimsley, to show that the payment was made before February 3, 1945. This burden was not discharged; so we necessarily hold that the appellee failed to overcome the plea of limitations. The decree of the Chancery Court is reversed, and the cause is remanded with directions (a) to release the impounded funds and (b) to enter a decree in accordance with this opinion.

George Rose Smith, J. This appeal is a branch of the case considered in Mothershead v. Douglas, also decided today, in which the nature of the proceeding is more fully set forth. In the foreclosure suit below the appellant filed an intervention asserting title to a water pump, a Diesel power unit, a 100-horsé-power engine, 1,500 feet of water pipe-line, and several other pieces of equipment. Appellant contends that this property was wrongfully attached to real estate now owned by him and accordingly became a part of the real' property. He appeals from the chancellor’s refusal to recognize his ownership. In 1945 appellant bought 225 acres from Peterson and Denison. He later examined the property and found a pipe-line, pump and power unit thereon, which he describes as having been rusty and apparently abandoned. Appellant returned to the laud about a year later and observed that additional equipment had been installed. Inquiries revealed that the machinery was owned by Polk Southard Mining Company. After appellant had unsuccessfully attempted to lease to the mining company the property on which the machinery and pip.e-line were situated he filed his intervention asserting absolute title to the property. The mining company and its mortgagees endeavored to prove that appellant’s grantors had given an oral license permitting the installation of the equipment. Denison testified that he told a representative of the company that it would be all right to install the machinery and pipe-line, but he admits that Peterson owned the particular tract on whicli the property is situated. There is some evidence that Denison acted as agent for Peterson in making the sale to appellant, but the record does not support the conclusion that Denison was also Peterson’s agent in authorizing 'the mining company to use the real property. Peterson did not testify, although appellant stated that after the conveyance Peterson said he had not authorized anyone to put anything on the land. Doubtless the chancellor disregarded this hearsay testimony. It cannot be said that the evidence just summarized supports the view that Peterson gave the mining company permission to use the land. Hence the appellees are in the position of having put their machinery and pipe-line upon another’s land without obtaining the owner’s consent. If the equipment in fact became part of the real estate the appellant’s claim to it must be sustained. The basic principles observed by the courts in determining whether personal property becomes a fixture by annexation to the land are discussed in Choate v. Kim-ball, 56 Ark. 55, 19 S.W. 108, and Tiffany on Real Prop erty (3d Ed.), 606-626. We have held that the intention of the person making the annexation is a consideration of primary importance, Morgan Utilities, Inc., v. Kansas City Life Ins. Co., 183 Ark. 492, 37 S.W. 2d 90; but Tiffany rightly concludes that the courts apply an objective test and arrive at the annexer’s intention by looking to his outward acts rather than to the inner workings of his mind. Tiffany, siopra, § 608. It thus becomes necessary to examine the manifestations of intent that have been regarded as controlling. One material consideration is the character of the fixture as related to the use to which the land is being put. Tiffany, § 610. In this case the appellees’ equipment had no connection with the use of appellant’s land. The mining company owned a manganese mine and mill situated at some distance from this land. The pipe-line was laid to supply the mill with water from a bayou in the vicinity, the pumping plant being used to propel the water to the mill. It is not indicated that any mining operations were conducted on appellant’s land; it merely lay between the mill and the bayou and had to be crossed to reach the water. Thus this test does not indicate that the chattels became fixtures. Another consideration of weight is the manner in which the property is attached to the land. Here the pipe-line was not buried in the soil; it was simply laid on the surface. Some of the machinery was of considerable weight, a fly-wheel weighing four tons according to its description in the pleadings, but the testimony is that it could be easily removed without damage to the real estate. One witness testified that at least part of the machinery was bolted to a concrete base and later said that it was “right out there in the open on that rock.” Appellant’s land is unimproved and of little value except for its cedar timber. The clear preponderance of the evidence indicates that the pipe-line and machinery may be removed without substantial injury to the freehold. The record leaves us in doubt as to whether the mining company installed its equipment with any idea of permanency. The pumping plant was twice replaced when it failed to supply the requisite volume of water. It is a fair inference from the record that the property now in controversy was installed with a view to its removal upon the termination of mining operations. We think it unnecessary to review the other aspects of this question. The chancellor found that this particular property is not part of the realty; we think his view is supported by the weight of the evidence. The mining company also built a tool house and a “box house” on the land, but the decree makes no reference to these structures. We assume that the trial court considered them to be fixtures and awarded them to the appellant. Since the equipment did not become part of the land the remaining question concerns appellees’ right to remove it. It has been pointed out that one whose chattels are wrongfully or negligently placed on another’s land does not have the privilege of entry to remove them except in an emergency threatening serious injury to the chattels. Rest., Torts, § 200. He should demand the property, and if the owner refuses permission to enter his land there is a conversion for which trover will lie. Waterman on Trespass, § 804. Here the appellant, by asserting title to the property, has in effect refused to permit its removal. Hence the chancellor properly provided in his decree that the appellees might enter the land to retrieve their equipment. This, however, is not a matter of right, and in a somewhat similar situation we have held that the landowner is entitled to nominal damages for the trespass. Brock v. Smith, 14 Ark. 431. We accordingly enter judgment in favor of appellant in the sum of $25 and affirm the decree as so modified.

Minor W. Millwee, Justice. R. E. Elliott, a night patrolman of the City of Blytheville, was making his rounds on Sixteenth Street about 11:30 p. m. September 28, 1948. As he walked around the rear of the Builder’s Supply Company he saw a man standing before a window of the building who turned and started running as the officer approached. Elliott called to the man and fired two shots at him as he fled through some high weeds back of the'building. The officer then went to the window and found it open. The bottom of the window had skinned places indicating that it had been pried open and the latch pushed up by some kind of an instrument. About two weeks later the sheriff of Mississippi County received information from Missouri officers that a man named Jess Fithen who was under arrest in that state had made statements implicating himself and appellant, Homer Mouser, in the alleged burglary at Blythe-ville. Appellant had also made a statement to the Missouri officers and was charged in the Blytheville Municipal Court with burglary. The sheriff of Mississippi county and chief of'police of Blytheville went to Jackson, Missouri, where appellant was being held. They talked with appellant about twenty or thirty minutes in the courthouse at Jackson. According to the testimony of the sheriff, appellant freely and voluntarily told of the attempt of Fithen and appellant to enter the building on the night in question and fleeing on the approach of officer Elliott. He also stated that a punch, sledge hammer and bar were dropped in the weeds about 30 feet from the building as he and Fithen fled. A punch and sledge hammer were found by city officers at the place designated by appellant, after receipt of the information from Missouri officers, but before the conversation with appellant. Appellant also stated that he and Fithen drove to Blytheville and ICeiser on the day of the alleged burglary and “cased” the bank at Keiser and the Builder’s Supply Company, and that after they fled from the building, they drove to Missouri where they rejoined appellant’s wife. On October 26, 1948, information was filed in circuit court which, omitting formal parts, charged: " The said defendant on the 28th day of September, 1948, in the Chickasawba District of Mississippi County, Arkansas, did unlawfully, burglariously and feloniously and with force break and enter the Builder’s Supply Company, located in the City of Blytkeville, Arkansas, with the unlawful and felonious intent to commit Grand Larceny, against the peace and dignity of the State of Arkansas.” Upon trial the jury found appellant guilty and fixed his punishment at two years in the penitentiary and he has appealed from the judgment based on the jury’s verdict. It is first insisted that error was committed in permitting the deputy prosecuting attorney in his opening statement to detail the alleged confession made by appellant. In overruling appellant’s objection the court cautioned the jury that the confession would not be admitted, if found to be incompetent when offered by the State. Appellant argues that the confession was subsequently improperly admitted in evidence and that error was, therefore, committed in detailing it to the jury. When appellant objected to the admission of the confession, the trial court followed the usual practice of hearing testimony in the absence of the jury as to the circumstances under which the alleged confession was given. At the hearing in chambers, the testimony of the officers tended to show that the confession was voluntarily made while the testimony of appellant indicated that it was made on a promise of leniency and a threat to involve his wife. Appellant did not testify, before the jury. Whether the confession was freely and voluntarily made thus became a question for the jury which was submitted under correct instructions. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26. Since the alleged confession was properly admitted in evidence, the court did not err in permitting the prosecuting attorney to detail it to the jury in the opening statement. Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248. Appellant also contends that the alleged confession was inadmissible and the testimony, therefore, insufficient to sustain a conviction because there was no proof of corpus delicti under Ark. Stats. (1947), § 43-2115, which provides: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.” We have frequently held that the extrajudicial confession of the defendant, accompanied with proof that the offense was actually committed by someone, will warrant his conviction. Smith v. State, 168 Ark. 253, 269 S. W. 995; Haraway v. State, 203 Ark. 912, 159 S. W. 2d 733. In Harshaw v. State, 94 Ark. 343, 127 S. W. 745, the court said: “It is not essential that the corpus delicti be established by evidence entirely independent of the confession, before the confession can be admitted and given probative force. The confession may be considered in connection with other evidence tending to establish the guilt of the defendant. But, if there is no other evidence of the corpus delicti than the confession of the accused, then he shall not be convicted alone upon his confession. Hubbard v. State, 77 Ark. 126, 127 S. W. 745; Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494.” See, also, Russell v. State, 112 Ark. 282, 166 S. W. 540. When the testimony of officer Elliott is considered in connection with the finding of the burglary tools at the place designated by appellant, it was sufficient to show a breaking of the building by someone with the intent to commit a-felony. We have held that, if one either breaks or enters the building of another in the night time with the intent to commit a felony, he is guilty of burglary under Ark. Stats. (1947), § 41-1004. Minter v. State, 71 Ark. 178, 71 S. W. 944; Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996. We have also held that if a house is entered in the night time with the intent to commit a felony, it is immaterial that the guilty purpose was not actually consummated because there was insufficient property in the house to steal or the accused was frightened off before he carried out his intent. Ragland v. State, 71 Ark. 65, 70 S. W. 1039. The same rule is applied where the defendant is surprised and interrupted after the breaking but before entry. Creek v. State, 214 Ark. 429, 216 S. W. 2d 787. A serious question in the case is found in appellant’s contention that the evidence was insufficient to sustain the charge laid in the information. The question was raised by motion at the conclusion of the testimony and by specific objections to Instruction No. 1 given by the court. This instruction was given in the language of § 41-1004,' supra, which provides: “If any person shall in the night time, wilfully and maliciously, and with force, break or enter any house, tenement, boat or other vessel, or building, although not specially named herein, with the intent to commit any felony whatever, he shall he deemed guilty of burglary. ’ ’ The State insists that the information charged burglary under this section while appellant contends that he was charged with violation of Ark. Stats. (1947), § 41-1001, which reads: “Burglary is the unlawful entering a house, tenement, railway car, automobile, airplane, or other building, boat, vessel, or water craft with the intent to commit a felony or larceny.” It will be noted that the information charged both breaking and entering, so that an offense was sufficiently charged under § 41-1001, supra, but the proof failed to show an entry of the building. "While the information alleged a breaking it did not charge that it was done in the night time, which is an essential ingredient of an offense under § 41-1004, supra. Of course, the prosecuting attorney had the right, with the court’s permission, to amend the information during the trial under Ark. Stats. (1947), § 43-1024. Ingle and Michael v. State, supra. Here appellant objected to the testimony showing that the offense was committed at night. He also challenged the sufficiency of the information by motion at the conclusion of the evidence and by specific objection to the instructions, without any offer by' the State to amend the information. The overruling of such objections constituted reversible error and sustains appellant’s contention that he was convicted for an offense not charged in the information after timely objections had been made. This amounted to more than a mere informality or uncertainty which a defendant may waive by failing to object before pleading to the merits or going to trial. See, Cole v. State of Arkansas, 333 U. S. 196, 68 Sup. Ct. 514, 92 Law Ed. 644; 12 C. J. S., Burglary, § 34. We find it unnecessary to consider the assignment of error relating to improper argument of the deputy prosecuting attorney, as this should not occur on retrial. We have examined the other assignments of error in the motion for new trial and find them to be withdut merit. For the error indicated, the judgment is reversed and the cause remanded for a new trial.

Holt, J. W. S. Parker, appellant, sued appellees for $3,141.59, alleged due on a sale of certain merchandise to them. Appellees answered denying that they owed appellant the amount claimed, but admitted that they had agreed to pay $2,000 for the goods in question and that the property had been delivered to them, which they later traded for an equity in Little Rock property. They further alleged that they were entitled to a set-off against the purchase price in the amount of $1,700 for services rendered appellant and offered to confess judgment for $300. The trial court found for appellant in the amount of $2,000 for the merchandise sold to appellees, less a set-off of $600 for services rendered by appellees to appellant, and entered a decree for appellant for $1,400 with interest thereon at 6% from the date of the decree, October 7, 1948, and declared an equitable lien on the property of appellees in Little Rock. This appeal followed. For reversal, Parker says: “Appellant contends that the allowance of only $2,000 gross for his merchandise, and not $3,141.59 as sued for; and the allowance of 6% interest from October 7,1948, only, and not from the taking of his goods, January 7, 1947, as he prayed, was against the preponderance of the evidence on which this Court can predicate a reversal. ’ ’ The parties are related by marriage. Appellant, Parker, in 1945, was engaged in merchandising in Fort Smith and decided to close out his business on account of illness. He moved his stock of goods to Little Eock and stored it in a garage belonging to his brother, Earl Parker. While appellant was ill in Fort Smith, and after he moved to Little Eock, he concedes that appellees, at his request, rendered personal services of the value of $600, which he owed to them, as the trial court found. George Carson testified that after the goods were brought to Little Eock and stored, appellant, after failing in his own efforts to sell them, sold them to him (Carson) for $2,000 and delivered the goods to him “to pay him (appellant) when I could and as I could.” Earl Parker’s testimony on behalf of appellees tended to corroborate George Carson. He testified that George told appellant: “I can’t pay you cash, but I will pay you along as I can and he (appellant) said, ‘That will be all right,’ and he (Carson) said, ‘Wyatt, I am not going to pay you any interest, because I am not able to,’ and Wyatt said, ‘That will be all right.’ ” Appellant testified, in effect, (quoting from appellant’s brief): “That Carson claimed he had paid out $1,041.50 expenses in trying to sell the goods, and wanted to buy them. I did not know he was going to trade them to Jernigan. I told him I would take $2,000 cash for the merchandise. We agreed he was to pay me $2,000 before moving the merchandise. They were moved at night without my knowledge. I did not know until after they had been moved. I was not paid before, they moved the goods. Carson took me late that night to some place where he tried to get the money. His wife went along in Carson’s automobile. He said he could not rake up the money. ’ ’ After a review of the testimony, we are unable to say that the findings of the Chancellor were against the preponderance thereof, and under our long established rule, we must therefore affirm the decree. Since appellee was not to pay any interest, and was to pay for the goods along “when I could and as I could,” the court correctly allowed interest at 6% from the date of the decree, Ark. Stat.,' (1947), § 29-124. Affirmed.

George Rose Smith, J. This is an action by several property owners in Street Improvement District No. 575 of the city of Little Rock, to enjoin the commissioners from laying pavement less than thirty feet in width. The chancellor sustained the plaintiffs’ position and issued the injunction sought by the complaint. When the district was formed there was in force an ordinance adopted in 1926, which provided that the pavement should be thirty feet wide when, as here, the dedicated right-of-way is from fifty to fifty-nine feet across. The petition for the formation of this district did not specify the width of the proposed pavement. It described the improvement as the grading, draining, curbing, guttering and paving of certain parts of Pierce, Fillmore and “R” streets, “in such manner and with such materials” as the commissioners might deem for the best interest of the district. The appellees’ grievance centers upon the action of the city council in reducing the thirty-foot pavement requirement after this district was organized. The council found that thoroughfares crossing the three streets mentioned had already been paved. When that surfacing was laid the curbing turn-ins at the intersections with Pierce and Fillmore were constructed twenty-seven feet apart and those at “R” Street twenty-four feet apart. The council, recognizing the rights-of-way thus tentatively fixed, passed an ordinance reducing the pavement width for Pierce and Fillmore to twenty-seven feet and that for “R” to twenty-four feet. The appellees do not suggest that the council’s action in slightly reducing the width of these streets is arbitrary. Their position is that the 1926 ordinance was in force when the petition for the district was signed, thereby creating an implied contract with the city for a thirty-foot surface. This contention we think refuted by our holding in Deane v. Moore, 112 Ark. 254, 165 S. W. 639. There the petition contained a request that the city council reduce the width of the street in order to lessen the expense of the work. The council did narrow the right-of-way but later passed a second ordinance restoring its original width. In answering the property owners’ attack upon the later ordinance we said: “The matter of fixing the width of the street was one which addressed itself to the city council, entirely apart from the question of making the improvement. It had no proper place in the petition for the improvement, as the statute prescribes what the contents of the petition shall be. That request must, therefore, be treated as surplusage in the petition. ’ ’ The court added that a different question might have been presented if the request for a reduced right-of-way had been so worded as to constitute a condition to the landowners’ consent to the improvement. Thus the matter of fixing the width of these streets lay within the council’s discretion. It is evident that compliance with the 1926 ordinance was not a condition upon which the property owners signed this petition, for it mentioned neither the ordinance nor the desired width of the improvement. If it he said that the petitioners are presumed to have known of the 1926 ordinance, it is enough to answer that they are also presumed to have known that the. council may modify or repeal its earlier enactments unless vested rights have intervened. The appellees had no vested right in the continued existence of the earlier ordinance. Beversed.