*1 However, concerns. those and case constitutional statutes guardianship ence in the raised for the first time on arguments The trial court’s letter disagree. law. We therefore, are, preserved not incorporated appeal into which was opinion, Const., v. specifically addresses for our review. TEMCO LLC appeal, order on 651; parents Gann, suitability of the natural 2013 Ark. 427 S.W.3d Thomas, also asserts EJW. Sarah 373 Ark. guardians over Smith v. (2008). supported temрo- a the reasons that S.W.3d 476 longer no in exis- rary guardianship were applied Ar- hold that the trial court guard- permanent the time of the tence at correctly case law and statutes kansas admits, though, that one ianship. Sarah instance, findings and we affirm its ... still existed problem “arguably clearly fact as not erroneous. appropriate relation- involved the less than Affirmed. Billy. This was the ship” of Sarah with impediment an problem that was primary BROWN, JJ., agree. WYNNE and qualified a being to Sarah considered EJW, supports guardian for suitable trial court’s decision. secondary point on
Sarah’s not in best
contends that it was EJW’s grandparents for the to be named
interest guardians separa because it results half-siblings. her two tion of EJW from PARKER, Appellant Connie J. separate the hesitation to We note that siblings applied equal is not force among half-sib relationship
when the X- ADVANCED PORTABLE Walker, lings. Donato v. RAY, LLC, Appellee. 437. Trial сourts are not No. CV-13-495. always provide flawless solutions to able where problems, especially unsolvable Appeals Court of of Arkansas. available. only options there are limited Jan. 2014. Here, a judge Id. the trial faced with was interest, decision focused on EJW’s best review
and we cannot conclude on de novo clearly this record that his decision also that
erroneous. Sarah asserts opinion
trial court’s letter did set forth words, “best interest” or delineate the bearing
relevant factors best EJWs contrary, a trial court’s
interest. To the “magic if it
order need not contain words”
is obvious that the trial court considered Baber, Baber v. child’s best interest. arguments
Sarah raises additional sur-
rounding parent’s due-pro- fundamental child, right implicating
cess to raise her *3 Brooks, P.A.,
Tolley Fayetteville, by: & Brooks, Evelyn appellant. E. for LLP, Fayetteville, Bassett Law Firm Brown, by: appellee. Dale W. HIXSON, Judge. KENNETH S. | a workers’ case. ]This Parker worked for Advanced Port- Connie (“APX”), X-Ray, x-ray able a mobile LLC company. driving Parker’s duties included portable van that company carried x-ray providing x-ray machine and services It is not thаt on patients. disputed to 29, 2011, driving Parker September was company providing vehicle and em- ployment services when she was rear-end- whip- ed another vehicle and sustained lash-type injuries. pay APX continued to wages Parker her while she was regular work, January prior off but on work, being Parker released to return Parker, pay- and her last APX terminated pay period ending Janu- check was for ary 30, 2012, Parker a let- January sent claim of explaining
ter to the EEOC layman’s termination in terms. wrongful In March Parker filed a formal APX, charge against discrimination to a statutory EEOC entitled credit for the claiming that APX violated the Americans money Parker in the EEOC media- | ¡¿Disabilities Act when it fired her. tion settlement. APX April In Parker and settled the APX appealed to the full Commission. charge EEOC confidential mediation review, After its de novo the Commission agreed pay wherein APX session awarded Parker medical benefits that were $60,000, applicable less tax- “lost reasonably related to treat her compensa- es, in exchange instituting for Parker not thoracic injuries, ble and cervical TTD ato lawsuit under Americans with Disabili- determined, yet date and her attor- Act agreeing “resign.” ties and Parker ney’s fees. The Commission declined to *4 26, 2012, April On after withholding “judicially find Parker estopped” from taxes, appropriate APX wrote a check to claiming Commission, TTD. The in сon- $47,485 Parker in the of amount referenc- ALJ, trast to the determined that APX ing single pay period, April the date of was entitled to a credit for “lost it following day, April on sought pursuant § to Ark.Code Ann. 11—9— 2012, Parker tendered a one-sentence “res- 807(b) (Repl.2012). Parker filed a direct ignation” job from her with APX “in keep- appeal, and APX filed a cross-appeal. ing with terms of our settlement” of Parker charge. EEOC contends on appeal direct the Commission erred in awarding the In August Parker’s com- workers’ $60,000 credit to APX. We reverse and claim pensation proceeded hearing. to a remand on direct appeal. cross-appeal, alleged she was entitled to medical APX contends that the Commission erred benefits, (TTD) temporary-total-disability refusing in to apply the doctrine of benefits, attorney’s and fees.1 APX con- estoppel to Parker’s claim for TTD bene- troverted the claim аnd further fits, and, alternatively, that the Commis- the alternative that APX was entitled to a sion’s decision to award her TTD benefits $60,000 against any credit the amount of supported by was not substantial evidence. workers’ compensation benefits as a result We affirm on cross-appeal. of the proceeds. EEOC settlement (ALJ) Administrative Judge Law conclud- We first address Parker’s direct ed that Parker had established the com- appeal. She contends that thе Commis pensability injuries; of her that APX was sion erred APX awarding pur a credit responsible for medical treatment as rea- § suant Ark.Code Ann. (Repl. 11-9-807 sonably necessary in connection with the 2012), which states: compensable injuries; and that Parker was compensation wages Credit for or entitled to TTD beginning benefits Janu- paid. ary yet until a date to be deter- (a) However, employer If the rejected mined. has made advance ALJ APX’s (1) payments arguments “judicially compensation, employ- that Parker estopped” er seeking TTD in of shall be entitled to be reimbursed out her assertion in any unpaid the EEOC documents that installment or installments (2) |sable work, she was that APX of compensation due.
1. Parker compensable contended that she had She does not from the denial of her head, injuries back, spine, regard to her cervical and thoracic claim to her lower head, back, well as tо her lower left shoulder left shoulder and arm. Our lim- discussion is Only injuries and arm. her cervical and compen- thoracic ited to the for which she was spine injuries compensable. were deemed sated.
(b)
statutory credit.
ad-
receives full
to this
We cannot
injured employee
If the
disability,
argument
he or she shall
the merits of her
this
wages during
dress
during
failed to ren-
not be entitled
time because the Commission
can
period.
findings upon
we
adequate
der
which
review.
perform appellate
here, the
noted
relevant
Commission
14As
of Parker and
following language
“Opinion and
the Commission’s
Lin
agree-
settlement
APX’s EEOC mediation
issue,
re
Order”
ment:
statute;
that APX is
cites the bare
states
faith effort to
good
of a
7. As evidence
pay
credit as “advance
longer seeking
no
Charge Number 493-
resolve EEOC
(a);
repeats
ments” under subsection
2012-00562,
offers and [Parker]
[APX]
$60,000
request for a
credit
lost
APX’s
of settle-
following proposal
accepts
wages
to Parker. The Commission
(the
agree): A.
[APX]
ment or
simply
then
concludes:
attorney
agrees
pay
[Parker]
agrees.
The Full Commission
Ark.Code
($60,-
Sixty
Thousand Dollars
the sum
ll-9-807(b)
(Repl.2002)
Ann.
ex-
[sic]
000.00)
all
wages,
appli-
as lost
which
*5
pressly provides
injured employ-
that an
federal, state and local taxes will
cable
compensa-
ee shall not be entitled [to
sum....
be withheld on this
during
period
the
that she receives
tion]
added.)
full
Pursuant
to a Mediation
that APX had not shown
The ALJ found
Agreement,
respondent-
Settlement
the
that
intended for the settle-
both
employer paid the claimant the sum
payments
advance
ment to be considered
$60,000.00
wages,
in “lost
which all
(a)
under subsection
and
compensation
federal, state and local taxes
applicable
therefore,
grant
APX the
refused
will be
on this
The Full
withheld
sum.”
$60,000 credit. The ALJ did not discuss
respondent-
Commission finds that the
(b)
applicability
of subsection
employer
lump
is entitled to a credit for
were full
proceeds
whether
settlement
it
claimant in
wages
paid
sum
that
wages
during
disability.
received
April 2012.
Commission,
Before the
whose decision
provides
explanation
The
no
Commission
review, APX
that it
argue
we
did not
of how Parker’s EEOC mediation settle-
wages
entitled to a credit for advanced
proceeds
ment
described therein as “lost
(a)
under
as discussed
subsection
wages” equates
wagеs”
to “full
under
ALJ; rather,
that it
argued
APX instead
ll-9-807(b).
required
to strict-
wages”
“full
was entitled to a credit for
ly
construe workers’
stat-
during disability
received
under subsection
utes, meaning
narrowly
that we are to
(b). The
that APX
Commission decided
statute, nothing
to be taken
construe
$60,000
lump
was entitled to a
“credit for
clearly
St.
expressed.
as intended unless
the claimant in
wages
sum
Howard, 2012
Mercy
Edward
Med. Ctr. v.
(b)
April 2012”
as “full
under subsection
673,
Ark.
424
App.
S.W.3d
wages”
disability. The
during
received
applicabili-
Commission did not discuss
appel
The
is not an
Commission
ty
of “advanced
under subsection
Westrim, Inc.,
v.
2011
late court. Serrano
(a).
771,
App.
Ark.
379
claim,
support
evidence to
the ALJ’s
Parker asserted
stantial
she was unable to
rather,
findings;
it must make its own work so as tо receive TTD benefits. As to
preponder
in accordance with the
findings
found,
judicial estoppel, the Commission
Id.,
ance of the evidence.
see also Pharm
respondent
“The
prove
did not
[APX]
Seratt,
Ark.App.
erica v.
103
285 S.W.3d
claimant
judicially estopped
is
(2008).
699
asserting entitlement
to temporary total
disability benefits in accordance
Dup
obliged
to make
Commission
Wallace,
we v.
findings and conclusions with sufficient de
(2004).”
464
ap
This is unlike the direct
particularity
tail and
to allow us to decide
peal in which the Commission did not cite
its
is in
whether
decision
accordance with
any authority
support
or rationale to
its
Vijil
Schlumberger
the law.
Tech.
perform
decision and we were unable to
386996;
Ark.
Corp.,
WL
Here,
meaningful
review.
Doyle,
Peters v.
expressly
Dupwe
relied on
17Commission
|fithose
WL 3644305. When
details are
conclusion, and,
precedent
for its
there
lacking,
appropriate
it is
to rеverse and
fore, that requires
analyze Dupwe
us to
remand to the
so that it can
within the context of this case.
provide
a decision
which we can con
meaningful
Cagle
duct a
review. See
Fa
Supreme
Dupwe
Arkansas
Court
Steel,
Patterson,
bricating &
Inc. v.
309 undertook an
analysis
exhaustive
into the
(1992).
Here,
doctrine of
estoppel beginning with
findings
not make
Commission did
the first Arkansas case to use the term
par
conclusions with sufficient detail and
“judicial estoppel”
expanded
analy-
its
*6
ticularity to allow us to decide whether its
through
legal
sis
the use of the
encyclope-
decision is in accordance with the law. We
Corpus
dias
Juris Secundum and American
remand on direct
for the Commis
Jurisprudence and case law from the Unit-
to make findings
sion
and conclusions with
Supreme
ed States
Court and other states.
particularity
sufficient detail and
on the
pertinent
legal
Some
principles quoted in
applicability
of
Ann.
Ark.Code
11-9-
Dupwe are particularly appropriate and
807(b)
credit,
any,
and the amount of the
if
analysis:
relevant to our
available to APX under the facts of this
beginning point
The best
analy-
our
case.
Green,
580,
sis is
[v.
Muncrief
cross-appeal,
APX asserts that
(1971)
APX
alleged
asserts that Parker
incon-
Rock,
City
Ark.App.
Little
36
positions pertaining
[v.
sistent
to her abili-
of
(1991)],
818
ty/inаbility to work.
In
S.W.2d 259
the court of
grossly simple
terms,
Weedman,
appeals cited to
APX asserts that
in her
Rinke
232
[v.
EEOC
claim,
(1960)
],
Ark.
she was able to work
sistent
also
litigation.
of
tions taken outside
42
325
Wakefield,
Tenn.
House [v.
In
531, 140
at 470.
Dupwe, 355 Ark. at
S.W.3d
(1865)],
Supreme Court
the Tennessee
omitted.)
(Citation
at issue was:
judgment
noted that
examples
court cited
of how
Dupwe
The
upon
regularly rendered
judgment
a
taken outside of liti
positions
inconsistent
of the
admissions
the solemn
against
the doctrine
gation may violate
suit, and with
court
in the
made
but not violate the
positions
inconsistent
being acted
admission
the view of such
estoppel.
In Wender
doctrine of
by the court.
Smith,
City
Ft.
oth v.
(1974),
previous
the appellants
S.W.2d 296
laid out in House and
principle
contended that a
ly
public proceeding
in a
estoppel” in
“judicial
characterized
and,
public property;
of land was
strip
principle
unfamiliar
is not
C.J.S.
against
city,
later in a lawsuit
court.
strip
appellants contended that the same
(cid:127)
(cid:127)
(cid:127)
private.
estopped
The court
of land
J&
taking
po
appellants
inconsistent
Harris,
In
Cox
Allen,
2 Ark.App.
In Dicus v.
sitions.
stated,
(1897),
“It
this court
is
S.W. 426
(1981),
previ
the appellees
The doctrine judicially must have been position is much broader than es- earlier tions posi- the inconsistent estoppel prohibits aсcepted a such toppel. Judicial proceeding later creates the manipulating the courts tion the party from the or second court through positions gain perception inconsistent to an first added.) (Emphasis incon- was advantage. against misled[.]” The doctrine case, from 21 cable in Dupwe adopted court the rationale and we affirm on this (1920): “1. issue. Estoppel, 233 at 1229-30 C.J. successfully position must have been Moving to the issuе of Parker’s trial.” maintained former TTD, to entitlement we review the evi added.) court conclud- Finally, Dupwe the dence in a workers’ following ed that the elements must be in the most favorable to the decision present prima to state a case of facie the if sup of Commission and affirm it is (1)
judicial estoppel:
party
a
must assume
ported by substantial evidence. Tucker v.
position
a
inconsistent with a
tak-
position
Am.,
Bank
2013 Ark. App.
of
casе,
position
en in an earlier
or with a
WL 5745033. Substantial evidence is evi
(2)
case;
party
taken in the same
a
must
dence that a reasonable mind might accept
position with the
assume the inconsistent
adequate
support
a conclusion. Id.
manipulate
judicial process
intent to
review,
the issue is not whether we
(3)
advantage;
an unfair
a
must
gain
party
might have reached a
result or
Indifferent
successfully maintained the position
have
whethеr
the evidence
sup
would have
proceeding
an earlier
such that
ported
contrary finding;
if reasonable
taken;
position
court relied
and minds could reach the Commission’s con
(4)
| ^integrity
judicial process
of the
of
clusion, we must affirm its decision.
Id.
impaired
at least one court must be
or
APX contends that there is no
injured by
positions
the inconsistent
taken.
support
substantial evidence to
the Com
mission’s award of TTD to Parker
Dupwe opinion provides an ex
January
court,
yet
to a date
analysis by
supreme
haustive
our
determined.
TTD
disagree.
is that
making a distinction between the doctrine
period within the healing period in which
judicial estoppel
of
and the doctrine
employee
incapacity
suffers a total
against
positions.
inconsistent
We must
RPC,
earn
Inc. v. Hargues, 2011
carefully
to the language
adhere
selected
PITTMAN and If reasonable minds could reach WOOD, Judge, dissenting. K. RHONDA Commission, the same conclusion as majori- I with the respectfully disagree we must affirm. Id. remanding the ty’s reversing decision agreement The settlement stated that finding employer Commission’s $60,000 for appellant would receive “lost $60,000 against
was due a credit appellant appellee Both wages.” must employer amount of benefits that signed agreement. Income taxes were majority writes that pay appellant. $60,000. facts withheld These of her cannot address the merits “[w]e alone are substantial evidence time [appellant’s] argument at this because $60,000 to find that the settle- Commission adequate the Commission failed to render wages, entitling ment amount was for thus perform appel- which we can findings upon employer for a credit under the stat- majority’s late concern is review.” wages” ute. have held that “full explain that the did not how recompense ser- money “the rate appellant’s settlement for “lost *9 Mercy vices rendered.” St. Edward Med. Arkan- equate wages” would to “full under Howard, ll-9-807(b), v. Ctr. sas Annotated Section Code the evi- Viewing 174-75. necessary for they contend this is in the most favorable to the dence appellate review. this, they inapplicable present in the case. exceptions 1. There are but findings, one sees that Commission’s agreement’s statement that the
settlement for “lost
payment equated
payment compensate ap- of monies to services,
pellant employment for defi- our wages.”
nition of “full It was for the to determine credibility
the appellant’s argument that she didn’t wages.
intend the settlement to be It apparent placed greater the Commission
weight on the written language of the set- agreement
tlement than on appellant’s
self-serving argument. explana- Further
tion the Commission on remand would support-
not alter the substantial evidence
ing their decision on the on appeal— issue the settlement monies were
| above, the reasons I stated would uFor
affirm the Commission’s decision. There-
fore, I dissent.
PITTMAN, J., joins.
Rodney PORTA, Appellant
ARKANSAS DEPARTMENT OF
HUMAN SERVICES Minor
Children, Appellees.
No. CV-13-638. Appeals
Court of of Arkansas.
Jan.