Tomerlin v. Nickolich

27 S.W.3d 746, 342 Ark. 325, 2000 Ark. LEXIS 467
CourtSupreme Court of Arkansas
DecidedOctober 12, 2000
Docket99-1342
StatusPublished
Cited by24 cases

This text of 27 S.W.3d 746 (Tomerlin v. Nickolich) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tomerlin v. Nickolich, 27 S.W.3d 746, 342 Ark. 325, 2000 Ark. LEXIS 467 (Ark. 2000).

Opinion

Donald L. Corbin, Justice.

Appellants Bill Tomerlin and All Arkansas Bail Bond Co., Inc., appeal the decision of the Arkansas Professional Bail Bond Company and Professional Licensing Board (“Board”) revoking their licenses. This case was transferred to us from the Arkansas Court of Appeals as involving the determination of the constitutionality of a statute; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6) and (d). Appellants raise several points on appeal. We find no merit in any of their arguments and affirm.

Bill Tomerlin is a licensed bail bondsman and sole owner of All Arkansas Bail Bond Co., Inc. Tomerlin and his company were the subject of a disciplinary hearing held on July 10, 1998. Tomerlin first came under investigation when Jesus Barrios filed a complaint against him stemming from events that occurred on July 28, 1997. On that day, Barrios and a companion were trying to change a tire on Barrios’s 1991 Dodge Ram Charger truck. They were in the parking lot of the Scholars Inn Apartments in Fayetteville when John Van Curen Jr., an employee of Tomerlin’s, approached them and began asking questions about Edgar Licon. The two men, who are Hispanic, spoke little English and denied knowing Licon. At some point during this exchange, Van Curen Jr. told Barrios to give him the keys to the truck, and Barrios complied. Van Curen Jr. testified that he had received a call from an informant that Licon, a bail jumper, was seen with the pair at the apartment complex. Van Curen then called Tomerlin and Patrick Sneed, also an employee of Tomerlin’s. The two men arrived at the apartments shortly thereafter.

According to Van Curen Jr., Tomerlin also tried to question the men, but got no answers. 1 The Fayetteville police were then called to the scene, and they tried questioning Barrios and his companion. They also searched the Ram Charger for drugs after Van Curen Jr. insinuated that there may be drugs in the vehicle. Van Curen Jr. told the police that he had the keys to. the truck and explained that it was listed as collateral on the bond for Licon. According to Van Curen Jr., the police then instructed Barrios and his companion to leave. Van Curen testified that he had paperwork indicating that the Ram Charger, a 1986 Nissan truck, and household goods located in an apartment at the Scholars Inn were listed as collateral on the bond. He stated that he did not learn until later that the Ram Charger was not actually listed on the bond for Licon.

Shortly after Tomerlin and his employees left the Scholars Inn, they received a phone call from the informant that the household items were being moved out of the apartment. According to Van Curen Jr., Tomerlin instructed him, his father, John Van Curen Sr., and another employee, James Wade, to return to the Scholars Inn and take possession of the Ram Charger, the Nissan truck, and the remaining household items. Tomerlin further instructed the men to take the vehicles out to Wade’s residence. Tomerlin denied this allegation. He claimed that he never instructed his employees to take possession of the Ram Charger. According to Tomerlin, he had no idea that the truck had been taken until Van. Curen Jr. notified him. Tomerlin further testified that once he learned that his employees had taken the truck, he ordered them to return it to the Scholars Inn. According to Tomerlin, his employees refused to return the truck, so he then suggested they drop it off at a Wal-Mart parking lot. Tomerlin admitted, however, that he never notified the police or Barrios of the truck’s whereabouts. In fact, when questioned by the Fayetteville police, Tomerlin denied having any knowledge of the truck’s whereabouts. He claimed that he did not want to be implicated in a theft charge. Tomerlin and Van Curen Jr. both testified that they had no idea what ultimately happened to Barrios’ truck.

After receiving Barrios’s complaint, the Board assigned Norma Rowell, a private investigator, to investigate the allegations against Tomerlin. According to Rowell, Tomerlin was very uncooperative with her investigation. She stated that Tomerlin refused to meet with her without his attorney being present. Moreover, he refused to allow Rowell to interview his employees without him and his attorney being present. After about a month, Rowell was finally able to interview Tomerlin.

In the course of this investigation, other allegations against Tomerlin were uncovered and presented to the Board. The Board ultimately considered the following charges against Tomerlin and, by implication, All Arkansas Bail Bond Co., Inc.: (1) they, either directly or by their agents, took possession of Barrios’s truck and actively concealed knowledge of taking the truck and its whereabouts, and such action involved fraudulent and dishonest acts; (2) they refused to cooperate with the Board’s investigation; (3) they used a convicted felon as a bounty hunter or bail enforcement agent; (4) they hired John Van Curen Sr. who had never been a licensed bail bondsman, licensed private investigator, or certified law enforcement officer to work as a bail enforcement agent or bounty hunter; and (5) they paid $7,000 for a forged death certificate on a client in order to avoid paying a forfeiture. The allegation that Tomerlin had obtained a false death certificate was ultimately dismissed by the Board for lack of proof. The remaining allegations were all adopted as findings of fact by the Board. The Board then voted to revoke the licenses of both Tomerlin and All Arkansas Bail Bond Co., Inc. In addition, they levied an administrative fine in the amount of $2,500 against Tomerlin as a result of his failure to cooperate with the Board’s investigation.

Tomerlin filed an appeal in the Circuit Court of Pulaski County alleging (1) that he was entitled to a de novo review of the Board’s decision pursuant to Ark. Code Ann. § 17-19-209(g)(4) (Supp. 1997) 2 ; (2) that the Board’s decision was not supported by substantial evidence; and (3) that the punishment inflicted was arbitrary and capricious. In an interim order dated May 11, 1999, the trial court denied Appellants’ motion for a de novo review. Then, in an order dated July 30, 1999, the trial court affirmed the Board’s findings of fact and conclusions of law. The present appeal stems from those two orders.

This court’s review, like that of the circuit court, is limited in scope and is directed not to the decision of the circuit court, but to the decision of the administrative agency. Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998); Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Id. We review the entire record in making this determination. Carlson, 334 Ark. 614, 976 S.W.2d 934; Arkansas Alcoholic Beverage Control Bd. v. Muncrief 308 Ark. 373, 825 S.W.2d 816 (1992).

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Bluebook (online)
27 S.W.3d 746, 342 Ark. 325, 2000 Ark. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomerlin-v-nickolich-ark-2000.