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    LIFEGUARD BENEFIT SERVICES, INC. and the Amacore Group, Inc., Appellants, v. DIRECT MEDICAL NETWORK SOLUTIONS, INC. and Consumer Assistance Services Association, Appellees.
    No. 2-09-267-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 11, 2010.

      Harris & Finley & Bogle, P.C., and Russell R. Barton, Bill F. Bogle, Troy D. Okruhlik, Andrew D. Sims, Fort Worth, TX, for Appellants.
    Brown, Pruitt, Peterson & Wambsganss, P.C., and Christopher J. Pruitt, Fort Worth, TX, and Trautmann & Associates, L.L.C., Gregg D. Trautmann Rockaway, New Jersey, for Appellees.
    PANEL: LIVINGSTON, WALKER, and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I. Introduction

Appellants Lifeguard Benefit Services, Inc. and The Amacore Group, Inc. bring this accelerated, interlocutory appeal from the imposition of a temporary injunction (1) enjoining Appellants from denying Ap-pellees Direct Medical Network Solutions, Inc. (“DirectMed”) and Consumer Assistance Services Association (“CASA”) access to and possession of data and information regarding Appellees’ members and customers, (2) requiring Appellants to turn over to Appellees data and information regarding Appellees’ members and customers, and (3) requiring Appellants to turn over to a third party data and information regarding individuals whom Appellants contend are their customers only. In one issue, divided into three subissues, Appellants argue that the trial court abused its discretion by entering the injunction because Appellees did not demonstrate an extreme hardship and prove an imminent threat of irreparable harm, the injunction alters the status quo and provides Appel-lees the ultimate relief sought in the suit, and the order granting the injunction is vague and overly broad. We will modify the temporary injunction and affirm it as modified.

II. Factual and PRocedural Background

Ty Bruggemann founded CASA, DirectMed, and Lifeguard. Bruggemann is the president of CASA and DirectMed. Lifeguard merged with Amacore in 2007; Amacore is Lifeguard’s parent company. Lifeguard terminated Bruggemann’s employment in 2008.

CASA is a not-for-profit association organized under the laws of the State of Illinois. Consumers who purchase a membership in CASA qualify to purchase benefit plans marketed by DirectMed and other retailers. DirectMed is a corporation organized under the laws of the State of Delaware. It is a third-party retailer of health and lifestyle benefit plans that provides its members discounts on medical services and lifestyle benefits. All DirectMed customers are members of CASA, but all CASA members are not customers of DirectMed; CASA members qualify to purchase plans from retailers other than DirectMed. CASA has approximately 10,-000 members, “over 35% of which have purchased DirectMed plans.”

Lifeguard engages in a number of business activities, including packaging lifestyle and benefit plans that are sold through third-party marketers and providing back-office administrative services for private label clients like DirectMed. The back-office support includes managing customer accounts.

Lifeguard contracted with CASA to sell CASA memberships and to provide CASA with back-office administrative support. Lifeguard’s packages do not always include CASA benefits. Lifeguard also entered into an agreement with DirectMed to market and service DirectMed’s products. According to Appellees’ original petition, the agreements between Lifeguard and CASA and between Lifeguard and DirectMed are the only reason that Lifeguard and Amacore have possession of data concerning DirectMed’s and CASA’s members. According to Bruggemann, “Under the Contracts between Lifeguard and DirectMed and CASA, the data concerning its members, their claims, and benefits belongs to DirectMed and CASA.”

On or about June 24 or 25, 2009, DirectMed received a Civil Investigative Demand (“CID”) from the Office of the Attorney General of the State of Minnesota. The CID states in part that “the Attorney General has received complaints alleging that Direct Medical Network Solutions, Inc. engages in deceptive and fraudulent misrepresentations in the sale of its services to Minnesota consumers, in violation of Minnesota law.” It also required DirectMed to answer interrogatories and to deliver documents requested for production.

On June 24, 2009, Scott Smith, Ama-core’s chief operating officer and Lifeguard’s operations officer, notified Brug-gemann that effective immediately, all DirectMed data could be accessed via a web-based portal to Lifeguard’s software system referred to as L.I.S.A. (Lifeguard Integrated Software Application). According to Appellees, the data that DirectMed was able to access through the portal was “very limited” and insufficient to fully respond to the CID.

On June 25, 2009, Bruggemann requested that he be given access to all of the DirectMed and CASA data and records under the control of Lifeguard and Ama-core. Several DirectMed representatives visited Lifeguard’s offices the next day but were told that the data was not ready. On June 30, 2009, Smith responded to Brug-gemann’s request and said that the agreements between Lifeguard and DirectMed and between Lifeguard and CASA “govern the data, materials, etc. to which you are entitled”; that DirectMed has access “to a ■wide range of data through the web portal access provided to you by Lifeguard”; that Lifeguard was assembling the requested data and information; and that “Lifeguard is committed to assisting in any way possible and practicable to help meet the requests of the” Minnesota Attorney General. Smith also indicated that “[t]o the extent we determine that we are not contractually required to produce one or more categories of requested documents, we will notify you of the basis for our objection.”

On July 1, 2009, Bruggemann sent Smith an itemized list of information that DirectMed was requesting from Lifeguard. Lifeguard responded to the data request a few days later, providing responses to the requests, objecting to certain requests, and stating that Lifeguard will produce certain documents. In an attached letter, Lifeguard indicated that some of DirectMed’s requests exceeded the scope of the information requested by the CID and that much of the information requested is “readily available” to Bruggemann and “entirely under [his] control as the President of DirectMed and through ... access to the LISA system.” At the hearing on Appellees’ motion for the temporary injunction, when asked about Lifeguard’s response to DirectMed’s request for information, Bruggemann testified that Lifeguard refused to provide the data and information that DirectMed was seeking pursuant to the information request.

Appellees filed their original petition and application for a temporary restraining order and injunctive relief on July 9, 2009. They alleged that Lifeguard provides back-office administrative support for each of them, that Lifeguard maintains possession of all of the data and information concerning their members and customers, that they had demanded full access to all of their customer and member data being held by Lifeguard in order to prepare responses to the CID, and that Appellants had refused to turn over the member and customer data and information. In addition to seeking injunctive relief, Appellants alleged claims for a declaratory judgment, breach of contract, and conversion.

On July 10, 2009, Appellants and Appel-lees entered into a rule 11 agreement providing in part as follows:

• Appellants shall provide Appellees possession of and unfettered access to all data, information, and records regarding DirectMed and CASA members in their health and wellness plan and their full access to all data which is Appellants.
• Appellees will provide today a record layout for the data, records, and information to be transferred to it. Appellants will transfer all data, records, and information concerning all DirectMed customers and CASA members to Ap-pellees within twenty-four hours unless that time frame is impracticable.
• Appellants shall continue providing Appellees all electronic data, information, and records concerning customers or members of DirectMed and CASA on a daily basis to the extent practical. The transfer shall be accomplished by transferring the data through an FTP site and then a record layout to be identified by Appellees.

The trial court held a hearing on Appel-lees’ application for a temporary injunction on July 23, 2009. Williams, who was DirectMed’s liaison to Lifeguard, testified about the events that transpired relevant to the rule 11 agreement after its entry. He recalled that Appellees had agreed to use a record layout provided by Appellants but that the layout they provided was incomplete and not “all-inclusive.” Also, Lifeguard provided Appellants with data on a memory stick instead of transferring the data by way of an FTP site. According to Williams, the data transferred was incomplete and unusable. Williams met with Smith and eventually reached an agreement on a record layout to provide the data and information that Appellees were requesting, but Appellants have not provided Appellees with a subsequent “data dump.” Williams visited Lifeguard’s offices and was given an opportunity to look through and take information that was provided to him. Williams opined that Appellees have only approximately 20% of the data and information that they have demanded.

Smith testified that the record layout to be used to transfer the data has changed several times and that Lifeguard is in the process of furnishing DirectMed and CASA their data. He agreed that DirectMed and CASA are entitled to all of the data and information that belong to them, but he testified that Lifeguard has possession of a large amount of data and information that does not belong to DirectMed and CASA, and he expressed concern about who should and who should not be considered a member of CASA. One such example of Lifeguard’s disagreement with DirectMed over who should be considered a member of CASA concerned those who are members or customers of the Lifeguard Health Options program. Williams testified that Lifeguard was selling memberships in CASA through the Lifeguard Health Options program, and he discussed a fulfillment materials package for Lifeguard Health Options that members receive, which includes a reference that Lifeguard Health Options is a product provided through CASA. Smith, on the other hand, denied that those who are members of the Lifeguard Health Options program are also members of CASA. Smith testified that Lifeguard does not want to turn over to DirectMed and CASA data concerning the members of the Lifeguard Health Options program because DirectMed and CASA could then effectively divert the billing of those contracts away from Lifeguard, resulting in Lifeguard losing money.

The trial court granted Appellees’ request for a temporary injunction and found as follows:

Unless Defendants Lifeguard Benefit Services, Inc. and The Amacore Group, Inc., together with their agents, servants, employees and those acting in concert with them are immediately enjoined, Plaintiffs will suffer immediate and irreparable injury and extreme hardship for which there is no adequate remedy at law. In part, the Court finds that absent a temporary injunction, (1) Plaintiffs will be denied possession of the data, information and records regarding [DirectMed] and [CASA] members to which they have the right of possession[;] (2) Plaintiffs will not be able to properly respond to the Minnesota Attorney General’s [CID] or other investigations; (B) Plaintiffs will not be able to properly prepare and defend itself in connection with such investigations; (4) Plaintiffs failure to prepare and respond adequately to any investigations or actions by Defendants would create grounds for further action against them, could affect the nature of the investigation, potentially expose Plaintiffs and/or its officers to charges being initiated, and impact their goodwill, business, client relationships, reputation in the business community, and ability to compete on a level playing field in the industry; (5) any charges arising from the failure to respond to any investigation or complaint would cause Plaintiffs immediate irreparable harm and damage through the loss of customers, damage to its relationships with clients, benefit providers, vendors, loss of good will, and the permanent injury to Plaintiffs’ business reputation; (6) failing to have possession of the data, information, and records concerning all of its customers!’] and members[’] records would injure their ability to service and direct service of those customers and members and their benefits and to investigate and evaluate the services being provided to those customers and members[.]

The trial court ordered as follows:

1) That [Lifeguard] and [Amacore] ... are hereby enjoined from denying Plaintiffs ... from having immediate possession of and unfettered access to all data, information and records, regarding DirectMed and CASA members, excluding “Contested CASA Members” as hereafter defined;
2) Defendants shall, on or before 5:00 P.M. on August 17, 2009, transfer an external hard drive devise to be provided by Plaintiffs, and to deliver to Plaintiffs, all data, information and records including but not limited to credit card and bank information, regarding DirectMed and CASA members, excluding Contested CASA Members, in the record layout format attached to this Order as Appendix A.
3) Defendants shall on or before 5:00 P.M. on August 17, 2009 transfer to an independent third party vendor mutually selected by the parties by use of an external hard drive devise to be provided by Plaintiffs file all data, information and records regarding Contested CASA Members in the same record layout format as that specified in the preceding paragraph. If the parties are unable to mutually [select] a third party vendor by 5 P.M. on August 10, 2009, then the court appoints Edwin Bell to act as the third party vendor and authorizes Edwin Bell to hire and obtain such services as may be necessary.
4) Defendants shall update the transfers referred to in Paragraphs 2 and 3 hereof on a daily basis by use of an SFTP site designated by Plaintiffs.
5) The term “Contested CASA Members” shall mean those members and participants in plans offered or administered by the Defendants whose plan documents reference, mention, or allude to [CASA] in any manner but whom Defendants assert are not DirectMed customers or CASA Members.
6) The third party vendor selected to receive the data, information and records regarding Contested CASA Members as set forth in Paragraph 3 above shall hold and maintain the data, information and records transmitted to it in accordance with this Order and shall permit the parties to this litigation access to the data, information, and records to verify compliance with the orders of this Court but shall not permit copying of the data except as further ordered by the Court.
7) The third party vendor shall not permit dissemination of the data, information and records except as set forth above and subject to further order of the Court.
8) Use of data, information, and records transmitted to the third party vendor shall be for litigation purposes only unless and until further order of the Court.
9) The cost of the third party vendor shall be shared equally by the parties hereto.
10) The Defendants, their agents, servants and employees shall within twenty-four (24) hours of receipt of any inquiry, investigative demand, or like communication received by Defendants regarding the Plaintiffs, their members or any plan offered by the Plaintiffs forward the same to Plaintiffs.
11) The Defendants shall be enjoined from engaging in any responses or communications with the Minnesota Attorney General or any other investigative unit purportedly on Plaintiffs’ behalf.

III. Standard op Review

The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru v. Ford, Motor Co., 84 S.W.3d 198, 204 (Tex.2002). A temporary injunction is an extraordinary remedy and will not issue as a matter of right. Id. To obtain a temporary injunction, an applicant must plead and prove: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id.; Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex.App.-Fort Worth 2009, pet. denied).

In an appeal from an order granting or denying a temporary injunction, the scope of review is restricted to the validity of the order granting or denying relief. Argyle ISD ex rel. Bd. of Trustees v. Wolf, 234 S.W.3d 229, 237 (Tex.App.-Fort Worth 2007, no pet.). Whether to grant or deny a request for a temporary injunction is within the trial court’s discretion, and we will not reverse its decision absent an abuse of discretion. Butnaru, 84 S.W.3d at 204. Under an abuse of discretion standard, the court of appeals cannot overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules and principles. Id. at 211. A trial court does not abuse its discretion if some evidence reasonably supports the trial court’s decision. Id. When reviewing a trial court’s order on an application for temporary injunction, we cannot substitute our judgment for that of the trial court, even if we would have reached a contrary conclusion. Greenpeace, Inc. v. Exxon Mobil Corp., 133 S.W.3d 804, 808 (Tex.App.-Dallas 2004, pet. denied). Instead, we view the evidence in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor, and determine whether the order is so arbitrary that it exceeds the bounds of reasonable discretion. Amend v. Watson, No. 05-08-01585-CV, 2009 WL 1912693, *1 (Tex.App.-Dallas July 6, 2009, no pet.).

IV. IRREPARABLE INJURY

In the first subissue of their only issue, Appellants argue that the trial court abused its discretion by entering the temporary injunction because Appellees failed to introduce clear and compelling evidence of an extreme hardship and failed to prove an imminent threat of irreparable harm.

The party seeking injunctive relief bears the burden to demonstrate irreparable injury. N. Cypress Med. Ctr. Operating Co., Ltd., v. St. Laurent, 296 S.W.3d 171, 175 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 925 (Tex.App.-Dallas 2006, no pet.) (“A trial court abuses its discretion in granting a temporary injunction unless ‘it is clearly established by the facts that one seeking such relief is threatened with an actual irreparable injury if the injunction is not gi-anted.’ ”). A party proves irreparable injury for injunction purposes by proving that damages would not adequately compensate the injured party or cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 281 S.W.3d at 227. Damages are an inadequate remedy if they are difficult to calculate; “assigning a dollar amount to such intangibles as a company’s loss of clientele, goodwill, marketing techniques, and office stability, among others, is not easy.” Frequent Flyer Depot, 281 S.W.3d at 228-29. But an injunction is not proper when the claimed injury is merely speculative. Id. at 227.

A. Mandatory or Prohibitive Injunction

Appellants initially contend that the injunction is mandatory both as to the “Contested CASA Members” and the DirectMed and non-contested CASA members because the injunction’s paragraph 2 requires Appellants to transfer to Appel-lees data and information regarding DirectMed and CASA Members, excluding “Contested CASA Members,” and paragraph 3 requires Appellants to act by affirmatively transferring records relating to Contested CASA Members to a third-party vendor. A prohibitive injunction forbids conduct, and a mandatory injunction requires it. RP&R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A mandatory injunction is proper when necessary to prevent irreparable injury and extreme hardship. Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981). Ap-pellees concede that the injunction can be viewed as either prohibitive — because it requires that traditionally provided data continue to be transferred — or mandatory — because it requires Appellants to provide data and information.

B. DirectMed

DirectMed pleaded that it will suffer immediate, irreparable injury in the absence of a temporary injunction because it will not be able to respond, prepare, and defend itself in regard to the CID and because any future investigation or charges would “undoubtedly cause [it] potential harm and damage through the loss of customers, loss of good will, and the permanent injury to [its] business reputation due to the implicit belief of wrongdoing.” DirectMed further pleaded that its potential damages attributable to Appellants’ refusal to turn over the demanded data and information cannot be calculated and that it will suffer irreparable injury because Appellants’ conduct will subject them to potential civil or criminal liability and jeopardize their business reputation and their relationship with their customers.

At the hearing on DirectMed’s application for a temporary injunction, DirectMed introduced evidence that the Office of the Attorney General for the State of Minnesota had issued the CID. The CID indicates that Minnesota’s Attorney General has received complaints alleging that DirectMed engages in deceptive and fraudulent misrepresentations in the sale of its services to Minnesota consumers in violation of Minnesota law. The CID also propounds interrogatories, requests the production of documents, and requires DirectMed to respond to the interrogatories within twenty days of the service of the CID and to respond to the requests for production within fifteen days of service of the CID.

Bruggemann testified that DirectMed needs access to its data held by Lifeguard in order to fully and properly respond to the Minnesota CID. Williams testified that it is important to have DirectMed’s data so that it can properly respond to the CID, and he opined that having only part of the data that it has demanded could interfere with its ability to defend itself against claims of fraudulent misrepresentation and deceptive trade practices with consumers. Bruggemann testified that the data DirectMed was able to access from the L.I.S.A. system through the web-based portal was insufficient to fully respond to the CID, and Williams thought that Appel-lees have only approximately 20% of the data and information that they have demanded from Appellants. In the absence of a response complying with the CID, the Minnesota Attorney General may apply to a court for an order compelling compliance in accordance with Minnesota law and, consistent with the trial court’s order, Bruggemann testified that he was concerned about DirectMed’s potential loss of goodwill, loss of reputation in the industry, and loss of customers.

The evidence thus demonstrates that DirectMed cannot fully and properly respond to the CID without the data and information that Lifeguard possesses. DirectMed has a remedy for damages against Lifeguard for breach of contract, but the damages resulting from Lifeguard’s failure to abide by the terms of its agreement with DirectMed would be difficult to determine or calculate and, consequently, inadequate because DirectMed is threatened with the Minnesota Attorney General’s pursuit of remedies it deems necessary against DirectMed and the potential resulting adverse impact on DirectMed’s reputation, business goodwill, and customer base.

Underlying Appellants’ argument is the contention that DirectMed’s claimed injury is merely speculative. This argument is belied not only by the evidence that the Minnesota Attorney General may seek remedies against DirectMed for failure to comply with the CID but also by the evidence demonstrating the clear disagreement between Lifeguard and DirectMed regarding whether customers or members of the Lifeguard Health Options program are members of CASA. Lifeguard does not consider that customers or members of the Lifeguard Health Options program are members of CASA even though materials received by those customers include a reference that Lifeguard Health Options is a product provided through CASA. The trial court could have reasonably inferred from this evidence that Lifeguard (or a third-party marketer) was selling memberships that included literature indicating membership in CASA but not considering those who purchased the memberships to be members of CASA. In light of the CID’s statement that the Minnesota Attorney General has received complaints that DirectMed — whose back-office support is handled by Lifeguard — engages in deceptive and fraudulent misrepresentations in the sale of its services, DirectMed’s claimed injury is not merely speculative.

Regarding imminency, the Minnesota Attorney General granted DirectMed an extension of time to respond to the CID with no set response date, but we decline to accept Appellants’ suggestion that DirectMed offered no evidence regarding the imminency of the irreparable injury it will suffer simply because the response date has been deferred once.

Although a court will generally not enforce contractual rights by injunction because a party can “rarely” establish an irreparable injury and an inadequate legal remedy when damages for breach of contract are available, this circumstance is tempered by the abuse of discretion standard of review, which prohibits this court from substituting its judgment for that of the trial court. Butnaru, 84 S.W.3d at 211. Viewing the evidence in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor, we hold that DirectMed presented some evidence reasonably supporting the trial court’s conclusion that DirectMed will suffer irreparable injury in the absence of a temporary injunction, whether the injunction is considered mandatory or not. Thus, the trial court’s conclusion that DirectMed will suffer irreparable injury was not arbitrary and unreasonable nor made without reference to guiding rules and principles. We overrule this part of Appellants’ first subissue.

C. CASA

To obtain a temporary injunction, CASA, like DirectMed, had to demonstrate irreparable injury. The evidence shows that CASA and DirectMed are distinct business entities organized under the laws of different states. All DirectMed customers are also members of CASA, but all CASA members are not customers of DirectMed.

The CID is directed to DirectMed, not CASA. It states that the Minnesota Attorney General has information establishing reasonable grounds to believe that DirectMed, not CASA, has violated one or more Minnesota consumer protection statutes. The CID also requires that DirectMed, not CASA, answer interrogatories and respond to requests for production. The CID thus advises of no grounds or allegations related to CASA’s conduct, and it requires that no action be taken by CASA.

Bruggemann, CASA’s president, opined that because CASA is referenced in the CID, he (presumably on behalf of DirectMed, CASA, or both) needs CASA’s data and information in Lifeguard’s possession so that DirectMed can fully respond to the CID. Bruggemann was referring to interrogatory number two, which requests that DirectMed provide certain information about CASA’s and DirectMed’s business relationship. Interrogatory number two, however, does not request that CASA provide any information in response to the CID, and it requests that DirectMed provide information related to other entities in addition to CASA, including “Beech Street Corporation,” “United Health Care,” “The United States Life Insurance Company in the City of New York,” and “The Health Connection.” There is no evidence that DirectMed requires any information from these entities, who are not parties to this litigation, to fully respond to the CID.

Appellees commingle the arguments and evidence that they contend support the trial court’s conclusion that they each will suffer irreparable harm. Having distinguished DirectMed’s evidence of irreparable harm, CASA directs us to no evidence that it will suffer any irreparable injury if DirectMed fails to fully and properly respond to the CID. Viewing the evidence in the light most favorable to the trial court’s order, we hold that the trial coui't abused its discretion by concluding that CASA will be irreparably injured in the absence of a temporary injunction. See Butnaru, 84 S.W.3d at 204. We sustain this part of Appellants’ first subissue.

V. Status Quo and Ultimate Object of Suit

In the second subissue of their only issue, Appellants argue that the trial court abused its discretion by entering the temporary injunction because it destroys the status quo and provides Appellees with the ultimate object of the suit. Appellants contend that prior to Appellees’ demand for data and information, Lifeguard had never provided Appellees with access to credit card and bank account information regarding DirectMed members and non-contested CASA members or to any of the records relating to the “Contested CASA Members.”

“Status quo is defined as ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.’ ” Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex.App.-Austin 2000, no pet.) (quoting Transp. Co. of Texas v. Robertson Tramps., Inc., 152 Tex. 551, 261 S.W.2d 549, 553-54 (1953)). “If an act of one party alters the relationship between that party and another, and the latter contests the action, the status quo cannot be the relationship as it exists after the action.” Benavides ISD v. Guerra, 681 S.W.2d 246, 249 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.).

It is undisputed that Lifeguard performs back-office support for DirectMed. Bruggemann testified that Lifeguard’s operations include a “fulfillment operation,” customer service, an IT department, an account management department, a claims department, and “so on and so forth.” The agreement between Lifeguard and DirectMed, which is still in effect, provides that part of Lifeguard’s duties and responsibilities include providing access to products and services for health benefits and services to DireetMed’s customers, providing toll-free 800 services for DireetMed’s members to access providers, providing an internet website for members to locate provider and access web links, and providing DirectMed with fulfillment information required to support the benefits offered by Lifeguard to DirectMed. Lifeguard acknowledged DireetMed’s exclusive rights to the names, addresses, and telephone numbers of its customers. During the hearing on Appellees’ application for a temporary injunction, Bruggemann agreed that Lifeguard routinely provides social security numbers and credit card and bank information to its clients like DirectMed. The following exchange occurred:

[Appellees’ counsel]: And would you read the — the second sentence of that email, this file contains?
[Bruggemann]: This file contains Social Security numbers, credit card and bank information, so it needs to be encrypted. As soon as we receive IAC’s PGP key, we can transmit the data. The file will be — is in the format that they provided us.
[Appellees’ counsel]: So Lifeguard would routinely send Social Security numbers, credit card and bank information to its — its clients like DirectMed? [Bruggemann]: Yes.

Appellees thus presented some evidence supporting the trial court’s order requiring Appellants to turn over DireetMed’s customer credit card and bank information. We overrule this part of Appellants’ second subissue.

We need not address Appellants’ argument that the temporary injunction destroys the status quo and awards Appel-lees the ultimate relief they seek in the suit due to the injunction’s requirement that Lifeguard turn over to a third party data and information relating to the “Contested CASA Members” because we have already determined above that the trial court abused its discretion by concluding that CASA will be irreparably harmed in the absence of a temporary injunction. Because CASA did not demonstrate irreparable harm, an essential element of in-junctive relief, it is not entitled to a temporary injunction requiring Appellants to turn over data and information regarding its members, whether they are “Contested CASA Members” or non-contested CASA members.

We hold that the trial court’s temporary injunction properly preserves the status quo pending resolution of the suit and does not award Appellees the ultimate relief they seek in the suit. We overrule Appellants’ second subissue arguing to the contrary.

VI. Vague, OveRly Broad, Not Specific

In the third subissue of their only issue, Appellants argue that the order granting the temporary injunction is unenforceable because it is vague, overly broad, and not specific in its terms.

Rule of civil procedure 683 provides in relevant part that every order granting an injunction shall set forth the reasons for its issuance, shall be specific in terms, and shall describe in reasonable detail and not by reference to the complaint or other document the act or acts sought to be restrained. Tex.R. Civ. P. 688. The requirements of rule 683 are mandatory, and an order granting a temporary injunction that does not meet them is subject to being declared void and dissolved. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986); see Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000).

A. Paragraphs 6, 7, & 8

Appellants argue that the injunction is unenforceable because its paragraphs 6, 7, and 8 are vague and overly broad. Paragraphs 6, 7, and 8 concern only the third-party vendor’s handling of the “Contested CASA Members’” data and information. As with Appellants’ status quo argument regarding “Contested CASA Members,” we need not address this argument because CASA failed to demonstrate irreparable harm, negating its entitlement to injunctive relief.

B. “Unfettered”

Appellants argue that the order is unenforceable because the term “unfettered” as used in the injunction’s paragraph 1 is vague and overly broad. They contend that they are or have been in possession of DirectMed and CASA records that are not in electronic form and that “[i]f read literally, ‘unfettered’ access would enable Appellees to demand to see the records at any time of day or night, on weekends and holidays, and as often as they wish.” We disagree. Paragraph 1 enjoins Appellants from denying Appellees unfettered access to “all data, information and records, regarding DirectMed and CASA members, excluding ‘Contested CASA Members.’ ” Paragraph 2 determines how the “data, information and records” will be transferred—it requires that Appellants transfer the data and information to Appellees via a hard drive device. Paragraph 4 requires Appellants to update daily the data transferred pursuant to paragraph 2 using an SFTP site. The injunction thus requires the transfer of data, information, and records through electronic means only. Appellants’ argument speculating about how data that is not in electronic form will be transferred is irrelevant to whether the order is enforceable because no part of the injunction requires the transfer of data in a form other than electronic.

Appellees’ argument is also unpersuasive because it examines the term “unfettered” in a vacuum and not in light of the evidence presented at the injunction hearing. Appellees filed this lawsuit primarily because they requested access to all of the DirectMed and CASA data and records under the control of Lifeguard and Ama-core but were provided with only part (approximately 20%, according to Williams) of that data and information. The trial court’s use of the term “unfettered” is unambiguously intended to prohibit Lifeguard from cherry-picking what data and information it turns over to Ap-pellees. We hold that the trial court’s use of the term “unfettered” is not vague and overly broad, and we overrule this part of Appellants’ third subissue.

C.Amacore

Appellants argue that the injunction is unenforceable as to Amacore because there is no evidence that Amacore has possession of any of the data and information that the order requires be turned over. We agree. Amacore is Lifeguard’s parent company. It is undisputed that Lifeguard is in possession of Appellees’ data and information because of agreements that it, not Amacore, has with Appellees. According to Williams, the data and information that Appellees seek is retained in the L.I.S.A. system. Brug-gemann testified that “if you have full access to the LISA system you can see every aspect, every—every ounce of information that’s been collected on—on each member for—under each plan, under each group, and under each client.” According to Bruggemann, L.I.S.A. is maintained by Lifeguard. Bruggemann testified that Amacore owns a call center that sells DirectMed’s products, but there is no evidence that Amacore has possession of any of the data that Appellees seek. We sustain this part of Appellants’ third subissue. D. Date Limitation

Appellants argue that the temporary injunction order is overly broad because it does not contain a date limitation consistent with the CID request for information. They contend that the primary reason for the relief granted by the injunction order was so that Appellees could properly respond to the CID; that the CID requires information and documents from July 1, 2003, to the present; and that Appellees did not present any evidence of the need for information and documents prior to July 1, 2003.

The CID does not limit the information and documents that DirectMed may produce from July 1, 2003, to the present. Rather, it also states, “If it is necessary to refer to a prior time to fully answer an interrogatory or respond to a request for production of documents, YOU should do so.” [Emphasis added.] Because the CID permits DirectMed to produce information and documents from before July 1, 2003, in order to fully respond to its demands, the trial court did not abuse its discretion by not including in its order a date limitation of July 1, 2003. We overrule this part of Appellants’ third su-bissue.

VII. Motion to StRike Affidavit

Appellants filed a motion to strike the affidavit of Robert T. Trautmann, an attorney who works with an attorney representing Appellees. The affidavit, which is dated September 21, 2009, and is ah tached to Appellees’ brief as part of the appendix, purports to relate information regarding the Minnesota Attorney General’s ongoing investigation of DirectMed. “It is axiomatic that an appellate court reviews actions of a trial court based on the materials before the trial court at the time it acted.” Methodist Hosps. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex.App.Corpus Christi 1998, no pet.) (citing Univ. of Tex. v. Morris, 162 Tex. 60, 64, 344 S.W.2d 426, 429 (reasoning that appellate court’s “action must be controlled by the record made in the trial court at the time the injunction was issued”), cert. denied, 366 U.S. 973, 81 S.Ct. 1940 (1961)). Trautmann’s affidavit was not part of the evidence adduced by either party at the hearing on Appellees’ application for a temporary injunction and was not considered by the trial court in entering the temporary injunction order, which was signed on August 3, 2009. We grant Appellants’ motion to strike Robert T. Traut-mann’s affidavit.

VIII. Conclusion

Having (1) sustained part of Appellants’ first subissue complaining that CASA failed to demonstrate irreparable injury, (2) sustained part of Appellants’ third su-bissue complaining that there is no evidence that Amacore has possession of the data and information sought by Appellees, and (3) overruled the remainder of Appellants’ subissues and arguments, we modify the trial court’s findings and rulings set forth on pages one through two of the order as follows:

Unless Defendant Lifeguard Benefit Services, Inc. (Lifeguard) is immediately enjoined, Plaintiff Direct Medical Network Solutions, Inc. (DireetMed) will suffer immediate and irreparable injury and extreme hardship for which there is no adequate remedy at law. In part, the Court finds that absent a temporary injunction, (1) Plaintiff DireetMed will be denied possession of the data, information, and records regarding DireetMed members to which they have the right of possession; (2) Plaintiff DireetMed will not be able to properly respond to the Minnesota Attorney General’s Civil Investigative Demand or other investigations; (3) Plaintiff DireetMed will not be able to properly prepare and defend itself in connection with such investigations; (4) Plaintiff DirectMed’s failure to prepare and respond adequately to any investigations or actions by Defendant Lifeguard would create grounds for further action against it, could affect the nature of the investigation, potentially expose Plaintiff DireetMed and/or its officers to charges being initiated, and impact their goodwill, business, client relationships, reputation in the business community, and ability to compete on a level playing field in the industry; (5) any charges arising from the failure to respond to any investigation or complaint would cause Plaintiff DireetMed immediate irreparable harm and damage through the loss of customers, damage to its relationships with clients, benefits providers, vendors, loss of goodwill, and the permanent injury to Plaintiff DirectMed’s business reputation; (6) failing to have possession of the data, information, and records concerning all of its customers’ and members’ records would injure Plaintiff DirectMed’s ability to service and direct service of those customers and members and their benefits and to investigate and evaluate the services being provided to those customers and members.

We modify paragraph 1 of the temporary injunction order to read as follows:

That Defendant Lifeguard is hereby enjoined from denying Plaintiff DireetMed and its agents, employees, and/or contractors from having immediate possession of and unfettered access to all data, information, and records regarding DireetMed members.

We modify paragraph 2 to read as follows:

Defendant Lifeguard shall, on or before 5:00 P.M. on the tenth day after the Supreme Court of Texas dissolves or lifts the stay entered on September 14, 2009, in Cause No. 09-0768, transfer an external hard drive device to be provided by Plaintiff DireetMed, and to deliver to Plaintiff DireetMed all data, information, and records, including but not limited to credit card and bank information regarding DireetMed members, in the record layout format attached to the trial court’s Order as Appendix A.

We modify paragraph 4 to read as follows:

Defendant Lifeguard shall update the transfers referred to in Paragraph 2 hereof on a daily basis by use of an SFTP site designated by Plaintiff DirectMed.

We modify paragraph 10 to read as follows:

Defendant Lifeguard, shall within twenty-four hours of receipt of any inquiry, investigative demand, or like communication received by Defendant Lifeguard regarding Plaintiff DirectMed, its members, or any plan offered by Plaintiff DirectMed, forward the same to Plaintiff DirectMed.

We modify paragraph 11 to read as follows:

Defendant Lifeguard shall be enjoined from engaging in any responses or communications with the Minnesota Attorney General or any other investigative unit purportedly on Plaintiff DireetMed’s behalf.

We further modify the temporary injunction order to delete paragraphs 3, 5, 6, 7, 8, and 9, as those paragraphs are only relevant to the transfer of data and information relating to the “Contested CASA Members.” We affirm the temporary injunction as modified.

      . According to Rocky Williams, a DirectMed employee, data and information about DirectMed and CASA members is located in the L.I.S.A. software system.

      . The demand included, but was not limited to, "all of the client records, member records, billing records, agent records, member complaints, promotional material[,] and all other member & financial data with regards to DirectMed and CASA."

      . According to Williams,
      There was information that — files that would not be usable because there was misalignment, or there was fields that were left blank, which by designation in the record layout it would have contained specific data. And in the review of that data, there was no information in those fields, which then leaves the question of why is this blank? What’s the problem here?

      . The order granting the temporary injunction refers to these individuals as the "Contested CASA Members.”

      . Nor do Appellees argue or point to any evidence that in terms of their business relationship, CASA is so inextricably intertwined with DirectMed that CASA will be irreparably injured without the temporary injunction.

      . In a letter addressed to Bruggemann dated June 30, 2009, Smith acknowledged that "Lifeguard entered into Servicing Agreements with ... DirectMed many years ago.” In another letter addressed to Bruggemann dated June 30, 2009, Smith stated that there are areas of common interest in which Lifeguard may be helpful in providing the Minnesota Attorney General with materials, "[gjiven the Servicing Agreement in place between Lifeguard and DirectMed.”

      . Appellees’ response that Appellants failed to preserve this argument for appellate review by not asserting it at the trial court level is without merit. See Big D Props., Inc. v. Foster, 1 S.W.3d 21, 23 (Tex.App.-Fort Worth 1999, no pet.) (“We ... hold that rule 683's requirements may not be waived.”); see also Kaufmann v. Morales, 93 S.W.3d 650, 655 n. 2 (Tex.App.-Houston [’14th Dist.] 2002, no pet.) (same).


source: Caselaw Access Project

author: DONALD L. CORBIN, Justice.

license: Public Domain

text:
    2009 Ark. 222
    Sharon BELL, Appellant, v. James MISENHEIMER, Appellee.
    No. 08-731.
    Supreme Court of Arkansas.
    April 23, 2009.
    Gary Eubanks & Associates, by: William Gary Holt, Little Rock, for appellant.
    The Boswell Law Firm, by: Clark S. Brewster and Drew Rogers, Bryant, for appellee.
   DONALD L. CORBIN, Justice.

| Appellant Sharon Bell appealed to the Arkansas Court of Appeals from a judgment of the Columbia County Circuit Court entered pursuant to a jury verdict for Appellee James Misenheimer. Appellant had filed suit against Appellee seeking damages for injuries to her property and person, which she alleged were the result of a collision between her automobile and Appellee’s. The court of appeals issued a 4-2 decision reversing the judgment for Appellee, finding the circuit court erred as a matter of law in instructing the jury on comparative fault because Appellant had no duty to anticipate Appellee would fail to yield the right-of-way. Bell v. Misenheimer, 102 Ark.App. 389, 285 S.W.3d 693 (2008). We granted Appellee’s petition for review of that decision, which Appellee alleges presents an issue of substantial public interest and conflicts with our prior holdings that require a driver who has the right-of-way to maintain a proper lookout. Our jurisdiction is therefore pursuant to Ark. Sup.Ct. R. 1-2(e)(ii) and (iii). See also Ark. Sup.Ct. R. 2-4(c)(ii) and (iii). For the reason set forth below, we affirm the circuit court’s judgment entered pursuant to the jury’s verdict for Appellee.

When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Appellant’s sole point on appeal is that the circuit court erred in instructing the jury on comparative fault because there was no evidence that supported such an instruction. Appellant therefore claims she is entitled to a reversal and new trial. Appellee responds that there was sufficient evidence to support the instruction and that based on that evidence there were several reasonable conclusions the jury could have drawn to support the verdict, therefore the trial court did not err in giving the comparative-fault instruction.

Arkansas Rule of Civil Procedure 51 is entitled “Instructions to jury: objection” and states in pertinent part as follows:

No party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection....
A mere general objection shall not be sufficient to obtain appellate review of the court’s action relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.

In applying Rule 51’s requirements, this court has explained:

|sThe procedure for preserving a point of appeal concerning instructions is not complex. A.R.C.P. Rule 51 mandates that in order to preserve an objection regarding an erroneous instruction of the law, the party appealing must make a timely objection by telling the trial judge why the instruction was wrong. When the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue.

St. Louis Sw. Ry. Co. v. Grider, 321 Ark. 84, 88, 900 S.W.2d 530, 532 (1995) (quoting Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 592, 721 S.W.2d 659, 661 (1986) (citations omitted)). This court went on to explain further:

We have stated that no instruction is required to be proffered in substitution for the instruction to which objection is made; rather, all that is required to preserve an objection for appeal regarding an erroneous instruction of law is to make a timely objection and to state a valid reason for the objection. A.R.C.P. Rule 51; Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

Grider, 321 Ark. at 88-89, 900 S.W.2d at 532.

The following is Appellant’s objection raised in the trial of this case:

The Court: ... and I’m also going to just give the general verdict forms, but ... I am gonna ... take Mr. Brewster’s [Counsel for Defendant/Appellee/Mish-enheimer] and ... take ... 903, entering the roadway, ... from your packet and put in his and as I understand it, without waiving your objection to the request for special verdict forms ... and with your motion for directed verdict, preserved, that was the only objection you had to these as given.
Mr. Holt [Counsel for Plaintiff/Appellant/Bell]: Your Honor, I have an alternate set which I will proffer to the Court that does not include any of the negligence on the part of Ms. Bell, jury instructions, and I do object to each one of those, but I’ll proffer those that exclude that and I’ll proffer a form that is itemized. -

|4Counsel for Appellant then immediately began discussing the possibility of stipulating to prejudgment interest. The trial court never ruled on Appellant’s objection, although it did instruct the jury on comparative fault.

Applying the requirements of Rule 51 to the foregoing objection, we conclude it is a general objection insufficient to preserve Appellant’s argument for our review. Appellant did not state the specific grounds for her objection and therein failed to tell the trial court why it would be wrong to give the comparative-fault instruction. Appellant’s proffer of a substitute set of instructions, even though not required, still does not offer any insight into the specific grounds for Appellant’s objection. The lack of specific grounds for the objection coupled with the lack of an express ruling indicates to us that the trial court was not presented with the “lack-of-evidence” argument that Appellant now raises on appeal.

It is elementary that this court will not consider arguments that are not preserved for appellate review. Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008). We will not do so because it is incumbent upon the parties to raise arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of possibly reversing a trial court for reasons not addressed by that court. Id. Because Appellant’s argument on appeal was not preserved, we do not address it and must therefore affirm the trial court’s judgment.

Accordingly, the judgment of the circuit court entered pursuant to the jury’s verdict for Appellee is affirmed. The decision of the court of appeals is reversed.


author: ROBERT L. BROWN, Justice.

text:
    2009 Ark. 223
    David FOSCUE, Appellant, v. Roland E. McDANIEL, Estate of Robert Ben McDaniel, Deceased, Sheila Foscue, Appellees.
    No. 08-1145.
    Supreme Court of Arkansas.
    April 23, 2009.

      R. Bryan Tilley, III, Heber Springs, for appellant.
    The Barton Law Firm, by: Walter Whit Barton, Monticello, for appellee.
   ROBERT L. BROWN, Justice.

| xThis case arose out of eight loans that Buford Quitman McDaniel (“Buford”) made to the appellant in the instant case, David Foscue (“Foscue”). When Buford died, he left the accounts receivable to his nephew, Robert Ben McDaniel (“Robert”), who also subsequently died. The appellee, Roland E. McDaniel (“McDaniel”), is the administrator of Robert’s estate, and he filed a complaint against Foscue to recover on outstanding debts, which he maintained were unpaid following Robert’s death. Foscue counterclaimed and alleged that he had, in fact, overpaid on the debts and, therefore, was entitled to recover from McDaniel.

McDaniel’s complaint was filed on November 28, 2005, and specifically referred to four loans Buford allegedly made to Foscue: a $24,000 loan made on October 3, 1994; a $15,000 loan made on June 2,1994; a $50,000 loan made on January 6, 1998; and an | ¡>$80,000 loan made on May 1, 1998. According to the complaint, Foscue owed McDaniel $77,959.48 plus interest as a result of nonpayment on the outstanding loans. McDaniel attached a letter to his complaint, dated February 25, 2003, written by Foscue to Robert after Buford died. In the letter, Foscue stated that he had recently finished an internal audit and had discovered that he was making payments on loans that he previously paid in full. The letter stated that Foscue had made $21,452.36 in overpayments and expressed his desire to credit that amount toward other outstanding debts. The letter then added the following:

10/03/1994 Personal Loan (24,000.00) — Balance 5,434.70

06/02/1994 Land Loan (15,000.000) — Balance 2,753.50

01/06/1998 Improvement Loan (50,000.00) — Balance 29,101.18

21,452.36 (see enclosed list)

- 5,434.70

- 2,753.50

- 13,264.16 (apply to principal)

00000.00

These credits will pay 10/03/1994 and 06/02/1994 in full and the balance on 01/06/1998 will be in the amount of 15,424.39

Also, the monthly payment will be in the amount of $1,556.25. I will continue to make this payment on the 25th of each month.

|s01/06/1998 Improvement Loan — 606.64 (scheduled pay off date 05/06/2005)

0⅛/01/1998 Land Purchase — 949.61 (scheduled pay off date 01/01/2008)

A promissory note was also attached to the complaint, showing that Buford had lent Foscue $80,000 on May 1,1998.

On August 4, 2006, Foscue filed a verified counterclaim against McDaniel and alleged that the four loans referenced in the complaint had been paid in full and, in fact, that Foscue had overpaid on the loans in the amount of $39,667.61, which he was entitled to recover from McDaniel. According to the counterclaim, the $24,000 loan and the $15,000 loan were paid in full as of February 25, 2003, the date of Fos-cue’s letter to Robert. The counterclaim alleged that the $50,000 loan was paid in full as of June 25, 2004 and the $80,000 loan as of February 25, 2004.

On February 8, 2007, McDaniel moved for summary judgment. Attached to the motion was (1) an affidavit by McDaniel to the effect that he had not received payments on the loans since Robert died; (2) an affidavit by Ted Carmichael, a certified public accountant, relying on the February 25, 2003 letter to find that, as of January 26, 2007, $7,655.36 was owed on the $50,000 loan and $61,910.97 was owed on the $80,000 loan; (3) a list of payments made by Foscue on the loans after Buford’s death but before Robert died, which Carmichael used in his calculation; and (4) a portion of Foscue’s deposition 14testimony. It was McDaniel’s position that the letter, coupled with Foscue’s later payments, made according to the plan set forth in the letter, created an account stated, which entitled him to summary judgment.

Foscue argued in response to the motion for summary judgment that the letter was not an account stated. Alternatively, he contended that, even if the letter were an account stated, it was only prima facie evidence of an obligation. Foscue added that he was entitled to introduce testimony at trial regarding the correct amount of any debt that may be due. Foscue’s response included the following documents: (1) an affidavit by Foscue to the effect that he asked McDaniel to discuss the loans with his wife, Teresa Foscue; (2) a letter from Foscue to Robert on January 21, 2003, letting him know that he was being audited by the Internal Revenue Service; (3) a letter from McDaniel to Teresa Fos-cue, confirming a prior telephone call and stating that she had told him “that there may be some questions as to the actual amount remaining to be paid and that [their] accountant was working to verify the account status”; and (4) an affidavit from Teresa Foscue that she was the wife and office manager of Foscue and that she told McDaniel the February 25, 2003 letter contained incorrect information.

On July 16, 2007, the circuit judge held a hearing on McDaniel’s motion for summary judgment. At the hearing, the judge expressed his view that Foscue had not met proof with proof as required by Arkansas Rule of Civil Procedure 56 in order to withstand summary | .judgment. The judge acknowledged Foscue’s assertions, by way of affidavit, that the February 25, 2003 letter was incorrect but stated that the documentation provided by Foscue amounted to nothing more than a denial of McDaniel’s proof. The judge stated that he would probably grant summary judgment in favor of McDaniel but said he would look at the issue more closely first.

After the hearing, it appears that McDaniel’s attorney drafted two precedents for the circuit court to grant his summary judgment motion. On July 31, 2007, Foscue wrote a letter to the circuit judge arguing that a motion granting summary judgment on McDaniel’s complaint should not dismiss his counterclaim because it rested on factually different grounds. On August 20, 2007, the court sent a letter to the parties, setting a hearing for September 17, 2007 to determine whether an order granting summary judgment in favor of McDaniel would also cover and dismiss Foscue’s counterclaim. The letter expressly stated that the judge would “only consider affidavits that were filed at the time the matter was originally submitted.”

On September 13, 2007, four days before the scheduled September 17, 2007 hearing, Foscue moved for partial summary judgment on his counterclaim. In his motion, he contended that he was entitled to judgment as a matter of law for overpayments on two loans. The two loans mentioned in the motion for partial summary judgment were in different amounts than those discussed in the original complaint or in the original | ^counterclaim. Instead, Foscue’s motion claimed that he paid a total $59,601.00 more than he owed on a $4,000 loan and a $9,000 loan respectively. Fos-cue attached an affidavit from Teresa Fos-cue to the effect that she had reviewed the business records with respect to the two loans. The motion also included various business records and cancelled checks purporting to relate to the two loans and an affidavit from Neil Denman, a certified public accountant, that he reviewed the documents provided by Teresa Foscue and concluded that Foscue overpaid $39,094.00 on the $4,000 loan and $10,507.00 on the $9,000 loan.

On September 17, 2007, the circuit judge held the hearing to address the question of whether an order granting summary judgment on McDaniel’s complaint would dismiss Foscue’s counterclaim. At the beginning of the hearing, Foscue’s attorney asked the circuit judge if he had received the motion for partial summary judgment regarding his counterclaim. The judge stated that he had not and added that it was filed too late to be considered at the hearing. Foscue’s attorney then said that he was “not asking [the court] to take [his motion] up.” Foscue’s attorney did not ask the court to consider the affidavits filed with his motion at that hearing.

During the hearing, the judge reiterated his view that Foscue had failed to meet proof with proof for purposes of McDaniel’s summary-judgment motion. The judge repeated that 17Foscue was required to do more than say that the February 25, 2003 letter was wrong. According to the circuit judge, Foscue needed to point to a specific mistake in the letter and, given the mistake, articulate the parties’ obligations with respect to the loan transactions. The judge also opined that the counterclaim could be dismissed with the order granting summary judgment because the counterclaim dealt with the same loan transactions as the complaint.

On September 20, 2007, three days after the second hearing, Foscue filed an amended counterclaim. In the amended counterclaim, he purported to describe the eight loans Buford made to him and asserted that he overpaid on the loans in the aggregate amount of $9,457.00. The following is a list of the loans, along with the approximate dates they were made, as set forth in Foscue’s amended counterclaim:

► September 27,1994— $ 4,000
► November 24,1996— $13,000
► December 1, 1997— $50,000
► May 1,1998— $80,000
► July 9,1999— $ 5,000
► November 30,1999— $ 7,000
► November 30,1999— $ 9,000
► November 30,1999'— $ 9,000

On October 2, 2007, McDaniel answered the amended counterclaim and admitted that the loans and amounts were correct.

|8On March 14, 2008, the circuit judge entered an order granting McDaniel’s motion for summary judgment and dismissing Foscue’s amended counterclaim with prejudice. In his order, the judge found that the February 25, 2003 letter was an account stated and was not refuted by any evidence presented by Foscue. The judge, accordingly, found that summary judgment should be awarded to McDaniel and against Foscue, in the amount of $73,968.83. The circuit judge also found that Foscue’s amended counterclaim and motion for partial summary judgment were “based on the identical loan transactions between the parties and therefore do not raise additional questions of fact to be decided by the Court.” The judge concluded his order by dismissing the counterclaim with prejudice.

I. McDaniel Summary Judgment

The first point on appeal involves the grant of summary judgment to McDaniel. Summary judgment is to be granted by a trial court only 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. See, e.g., Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003). On review, the appellate court determines if summary judgment was appropriate based on whether evidentiary items presented by the moving party in support of its motion leave a question of material fact unanswered. Id. In making this determination, the appellate court views 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. Id. Summary judgment is inappropriate if on the evidence, reasonable persons might reach different conclusions from those undisputed facts. Id.

In support of his contention that it was error to grant summary judgment to McDaniel, Foscue urges that the circuit judge should have considered the affidavits he submitted with his motion for partial summary judgment on September 13, 2007. He also urges that there were issues of material fact rendering summary judgment improper.

A. Timeliness of Foscue’s Affidavits

As already stated, after McDaniel moved for summary judgment on his complaint and attached various documents in support of the motion, Foscue responded and attached documents to his response. At the ensuing hearing, on July 16, 2007, the judge stated that he was of the opinion that Foscue had not met proof with proof as required by Arkansas Rule of Civil Procedure 56. Ark. R. Civ. P. 56(e) (2008) (“[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine 11flissue for trial.”). At the end of the hearing, the judge said that he would probably grant summary judgment against Foscue but that he wanted “to look closer at the file and look at some of [his] own law.”

Four days before the second hearing on the counterclaim, Foscue moved for partial summary judgment on his counterclaim and attached various documents in support of that motion. Foscue now claims that the circuit judge erred by not considering those documents when deciding whether to grant summary judgment on McDaniel’s complaint.

We first recognize that Rule 56 requires an adverse party to serve a response and any supporting materials to a motion for summary judgment within 21 days of the service of the motion. Ark. R. Civ. P. 56(c). Rule 56(c) also provides that “[f]or good cause shown, the court may by order reduce or enlarge the foregoing time periods. No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise.” Id. (emphasis added). Fos-cue does not argue that the circuit judge ordered that the 21 days time period be enlarged. In fact, the letter dated August 20, 2007, setting the second hearing, specifically stated that the judge would only consider affidavits already filed. This is direct evidence that the circuit judge did not intend to grant Foscue more time to submit supporting affidavits.

Foscue makes, in addition, a con-clusory argument that the circuit judge erred in the procedure he used to decide summary judgment because he did not consider the later | n affidavits filed by Fos-cue. Foscue does not, though, point this court to any authority for this assertion and has failed to develop the argument in the context of the specific requirements of Rule 56. Accordingly, Foscue’s argument on this point is insufficiently developed. This court has made it clear that it will not consider an argument on appeal if it is not developed and supported by citation to authority. See, e.g., Gatzke v. Weiss, 375 Ark. 207, 215, 289 S.W.3d 455, 461 (2008).

Foscue does direct this court to authority for the proposition that the time limitations provided in Rule 56 are not jurisdictional and, therefore, the circuit judge may consider motions for summary judgment filed outside of the time limits set out in Rule 56. See Scroggin v. Scroggin, 103 Ark.App. 144, 286 S.W.3d 758 (2008). However, at issue in the instant case is the timeliness of the affidavits Foscue was required to submit with his response to the motion for summary judgment and not the timeliness of the motion for summary judgment itself.

Accordingly, the affidavits submitted by Foscue as part of his motion for partial summary judgment were simply too late for consideration in the context of McDaniel’s motion for summary judgment. That, however, does not preclude our considering them in connection with Foscue’s motion for partial summary judgment on his counterclaim, as discussed in issue two.

|12& Issues of Material Fact

The circuit court also found in his summary-judgment order that the February 25, 2003 letter was an account stated and based summary judgment on this finding. An account stated is an agreement between two parties who have had previous transactions of a monetary character that all the items of the account representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. See Hogue v. Jennings, 252 Ark. 1009, 1010, 481 S.W.2d 752, 753 (1972) (citing Allen-West Comm’n Co. v. Hudgins, 74 Ark. 468, 86 S.W. 289 (1905)). An account stated is only prime facie evidence of correctness and may be impeached for fraud, mistake, or other error. Jewell v. Gen. Air Conditioning Corp., 226 Ark. 304, 307, 289 S.W.2d 881, 883 (1956). The burden is on the party challenging the account stated to present evidence of fraud, error, or mistake. Drake v. Howell, 177 Ark. 1156, 1161, 9 S.W.2d 565, 567 (1928).

Because Foscue does not appeal the circuit judge’s finding that the letter was an account stated, the question on appeal is whether Foscue presented sufficient evidence to create a fact question with respect to whether the letter was incorrect. Foscue asserts that he did and argues that the circuit court granted summary judgment based on improper credibility determinations, which are not appropriate at the summary-judgment stage. See Bennett v. Trout, 297 Ark. 202, 205, 760 S.W.2d 850, 852 (1988). Foscue points to two instances in which he alleges that the judge made credibility determinations.

Iisln the first instance, the judge was questioning Foscue’s attorney about a statement Foscue made during his deposition. In the statement, Foscue answered that he did not remember why he wrote the February 25, 2003 letter. The judge expressed confusion at that answer, given that the letter itself states that it was written after Foscue audited his finances and discovered he had overpaid on some of the outstanding loans to Buford. The judge specifically stated that he could not “reconcile one with the other if [he] use[d] common sense....” In the second instance, the judge asked Foscue’s attorney how he could reconcile the fact that the February 25, 2003 letter indicated that Foscue owed a certain amount of money to Buford on the outstanding loans, and the counterclaim asserted that some of the same loans were paid in full as of the date of the letter.

We conclude that Foscue misinterprets the judge’s basis for granting summary judgment. The judge did not grant summary judgment in favor of McDaniel because he believed him over Foscue. Rather, the judge found that Foscue failed to present anything other than bare allegations to support his contention that the February 25, 2003 letter was incorrect. Rule 56 makes it clear that Foscue could not “rest upon the mere allegations or denials of his pleadings” but through affidavits that “must set forth specific facts showing that there is a genuine issue for trial.” Ark. R. Civ. P. 56(e) (2008) (emphasis added); Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992).

|14We also agree with the circuit judge that the supporting affidavits Foscue included in his response to McDaniel’s motion for summary judgment did not allege facts specific enough to overcome McDaniel’s prima facie case based on an account stated. The affidavits of Foscue and Teresa Foscue merely allege that due to bookkeeping errors, the February 25, 2003 letter was incorrect. The letter from McDaniel to Teresa Foscue does confirm that the Foscues had told McDaniel there may be mistakes in the letter. None of the documentation, though, included any specific assertions about what the bookkeeping errors were or how the letter was incorrect. Nevertheless, these conclusions do not ultimately resolve this case, and we turn next to Foscue’s amended counterclaim and motion for partial summary judgment.

II. Foscue’s Amended Counterclaim

Foscue argues next that the circuit judge erred in dismissing his amended counterclaim. He specifically asserts that the judge should have considered the materials he included with his partial motion for summary judgment and that the dismissal was in error because issues of material fact remained with respect to the counterclaim. McDaniel [ lfiresponds that neither the amended counterclaim nor the motion for partial summary judgment creates a question of material fact that precluded summary judgment in his favor.

Foscue’s first argument must fail because the judge’s order states that he did, in fact, consider the affidavits attached to Foscue’s motion for partial summary judgment in determining whether to dismiss the counterclaim. The order specifically reads that “the affidavit of Neil Denman, CPA, as submitted by the Defendant Fos-cue in support of his Motion for Partial Summary Judgment, does not contain testimony which would establish an offset to any indebtedness owed by David Foscue to the Plaintiff.” Hence, regardless of the judge’s stated intent in his August 20, 2007 letter, that he would not consider additional proof, his order reflects that he did consider the affidavits subsequently filed by Foscue.

The issue thus becomes whether Foscue raised issues of material fact with respect to the amended counterclaim irrespective of his failure to appeal the account-stated issue. The original counterclaim was filed on August 4, 2006, and Foscue amended it on September 20, | lfi2007, three days after the second hearing. Arkansas Rule of Civil Procedure 15(a) states clearly that a party may amend his or her pleadings at any time without leave of the court. Ark. R. Civ. P. 15(a) (2008). In this case, Fos-cue did amend his counterclaim without objection or a motion to strike by opposing counsel. Id. (“Where, however, upon motion of an opposing party, the court determines that prejudice would result ..., the court may strike such amended pleadings.”) (emphasis added). Thus, the amended counterclaim stands as a valid pleading. While the amended counterclaim discusses some of the loans at issue in McDaniel’s complaint, it also asserts that Foscue overpaid on loans that were not specifically mentioned in the February 25, 2008 letter or in any of the prior pleadings. Hence, the amended counterclaim and motion for partial summary judgment with attached affidavits stand unresolved.

The circuit judge found that the amended counterclaim and the partial motion for summary judgment were “based on the identical loan transactions between the parties and therefore do not raise additional questions of fact to be decided.... ” Yet, the record before this court does not support that finding. The amended counterclaim listed eight loan transactions as the basis for recovery, while the complaint listed only four. Furthermore, | ]7the circuit judge erred in finding, as a matter of law, that nothing in Neil Denman’s affidavit, in support of Foscue’s motion for partial summary judgment, would establish an offset to any indebtedness owed by Foscue to McDaniel because, according to Den-man’s affidavit, Foscue substantially overpaid on two loans that were not listed in McDaniel’s complaint. In short, we have two certified public accountants offering affidavits in support of different calculations relating to the loans; we have the February 25, 2003 letter which forms the basis of the circuit judge’s finding of an account stated, which does not explain Foscue’s supposed $21,452.36 overpayment; and the list of loans referenced in the letter is not attached or made part of the record.

Because we are left in the dark regarding the major facts of this case, we are reluctant to affirm McDaniel’s summary judgment and further reluctant to dismiss Foscue’s amended counterclaim, as the two are intertwined.

Accordingly, we reverse the order of summary judgment and remand for further proceedings.

      . These loans are presumably not the four listed in the complaint.

      . The letter indicated that a list was enclosed, detailing the overpayments. However, the list was not attached to the complaint or otherwise included in the record.

      .Foscue initially responded to McDaniel's complaint with a motion to dismiss on December 28, 2005. The motion to dismiss was withdrawn and dismissed by order on July 10, 2006.

      . The motion for partial summary judgment appears to include a mistake. It alleges that Foscue overpaid on the two loans in the amount of $59,601.00. However, the sum of the figures in Denman’s affidavit is $49,601.00.

      . Foscue's amended counterclaim is the only place in the record in which each of the eight loans made by Buford to Foscue are purportedly described. McDaniel answered the amended complaint and admitted that the loans and the amounts of the loans were correct. However, the list in the amended counterclaim is inconsistent with the earlier pleadings because it does not include a loan in the amount of $24,000 or $15,000.

        . While Foscue argued to the circuit court that the letter was not an account stated, he does not raise the issue on appeal.

      . To restate, any documents submitted after the response to the motion for summary judgment are not relevant because Rule 56 makes clear that "no party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise.” Ark. R. Civ. P. 56(c) (2008).

      .The.order suggests that the judge considered these documents in the context of Fos-cue's amended counterclaim and not in deciding McDaniel's motion for summary judgment. The judge begins his findings with respect to the McDaniel summary-judgment motion by stating that “the matter was initially presented to the court on the Pleadings submitted by the parties.” The order then lists the documents that were submitted with McDaniel's motion for summary judgment and Foscue's response. The judge's order does not mention the documents submitted with Foscue’s motion for partial summary judgment until after the judge made his finding that summary judgment should be awarded to McDaniel.

      . The issue of whether the original counterclaim was a compulsory counterclaim under Ark. R. Civ. P. 13(a) was not raised by the parties or argued to the court.

      . In addition, two of the four loans included in McDaniel's complaint appear to be missing from the list in Foscue's amended counterclaim.


author: PER CURIAM.

text:
    2009 Ark. 243
    Antonio DANIELS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-370.
    Supreme Court of Arkansas.
    April 30, 2009.
    Dale West, for appellant.
    No response.
   MOTION FOR RULE ON CLERK

PER CURIAM.

11 Antonio Daniels, by and through his attorney Dale West, has filed a motion for rule on clerk. The clerk of this court refused to file the record in this case, concluding that the order extending the time within which to file the record failed to comply with Arkansas Rule of Appellate Procedure — Civil 5(b)(1)(A) and (D). However, Arkansas Rule of Appellate Procedure — Criminal 4 was amended and made effective October 1, 2008. See In re Rules of Supreme Court and Court of Appeals, Rule 1-8, 374 Ark. App’x 566 (Sept. 18, 2008). Arkansas Rule of Appellate Procedure — Criminal 4, rather than Arkansas Rule of Appellate Procedure— Civil 5, now provides the procedure to be followed in a criminal case when an extension of time is sought within which to file the record.

In this case, the judgment and commitment order was filed on September 4, 2008. The notice of appeal was timely filed on October 1, 2008. The record had to be filed within ninety days of the date that the notice of appeal was filed, making the record due no later |2than December 30, 2008. See Ark. R.App. P.-Crim. 4(b). However, on December 11, 2008, the circuit court granted a motion for an extension of time under Rule 4 and entered an order extending the date for filing the record. An extension is permitted where the requirements of Rule 4 are met. Rule 4(c)(1) provides in pertinent part as follows:

If any party has designated stenographi-cally reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (b) of this rule or by a prior extension order, may extend the time for filing the record. A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to in-elude the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.

Rule 4(c)(1)(b) provides that a copy of the motion shall be served on the prosecuting attorney. A copy of the motion was served on the prosecuting attorney on December 2, 2008. The circuit court’s order granting the extension of time under Rule 4, which was entered on December 11, 2008, does not state that all parties consent to the extension and it does not state the length of time the extension is granted.

We view this matter under Rule 4 as we do a violation of Arkansas Rule of Appellate Procedure — Civil 5. Upon a remand for compliance with Rule 4(c)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension |sof time was filed and granted. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court.

Because the order of extension in this case makes no reference to each of the findings of the circuit court required by the rule, and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 4(c)(1).


text:
    2009 Ark. 239
    Christina HAGENBAUGH, Nancy K. Sears, Freda Blair, Modean Parks, Anthony Mayfield, Loraine Brand, Paula McConnell, Claudia Heer, Wayne Ives, Michael Reaves, Jeremy Reaves, Randy Wise, and Ricky Wise, Appellants, v. Perry County Sheriff Scott MONTGOMERY, Perry County Sheriff's Investigator Ray Byrd, Perry County Sheriff's Chief Deputy Mike Surette, Perry County Deputy Bob Barker, Perryville Police Officer Daniel Warren, and Perry County District Judge Elizabeth Wise, All in their Individual and Official Capacities, Appellees.
    No. 08-1440.
    Supreme Court of Arkansas.
    April 30, 2009.

      Cheryl V. Barnard, Perryville, for appellants.
    No response.
   DONALD L. CORBIN, Justice.

| Appellants, a group of citizens residing in Perry County, Arkansas, appeal the order of the Pulaski County Circuit Court refusing to convene a grand jury to investigate allegations of violations of the Political Practices Act, specifically Ark.Code Ann. §§ 7-1-103 and 7-1-104 (Repl.2007). The allegations were related to the May 20, 2008 | ¡.preferential primary election, more specifically the Democratic Primary to nominate a candidate for sheriff of Perry County. On appeal, Appellants argue that the trial court erred in considering an Arkansas State Police report concerning the alleged violations in determining the credibility of their complaint. Appellants request that this court order the circuit court to convene a grand jury for a proper investigation of their allegations. As this case involves the interpretation of our statutes concerning election laws, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(4). We find no error and affirm.

Appellants filed a complaint on June 9, 2008, requesting the circuit court to convene a grand jury, pursuant to Ark.Code Ann. § 7-5-807 (Repl.2007), to investigate their allegations of election fraud, including voter intimidation, harassment, and abuse of the criminal justice system. Therein, Appellants alleged that the instances of election fraud had been committed by Appellees, who include members of the Perry County Sheriffs Office, the Per-ryville Police Department, and the Perry County District Court, while acting pursuant to statutory authority in the course of their usual duties. At the crux of the complaint was an allegation that Wye Mountain Constable, Ron Hance, told Appellant, Christina Hagenbaugh, that if she would switch her support from candidate Jerry Best to Sheriff Scott Montgomery, an arrest warrant for her son would go away.

IsPrior to the filing in circuit court, an official complaint was also filed with the State Board of Election Commissioners. Due to the criminal nature of some of the allegations, the matter was turned over to the Pulaski County Prosecuting Attorney, and the state police were called in to investigate the matter. Thereafter, when the complaint was filed in circuit court, the court requested that the prosecuting attorney turn over any information he received as a result of the investigation. In response, the prosecuting attorney transmitted a copy of a report filed by State Police Lieutenant W.E. Beach. In that report, Lt. Beach stated that he interviewed Hance, who told him that the situation had been blown out of proportion and that he never told anyone that any warrants or charges would go away if they changed their political support.

The circuit court entered an order on June 27, 2008, dismissing Appellants’ complaint. Therein, the circuit court noted that the Arkansas State Police had conducted a preliminary investigation and determined that there was no need for a “full scale” criminal investigation into the allegations. The trial court further noted that Lt. Beach had interviewed Hance, who allegedly made statements connecting a sheriffs deputy to the alleged election misconduct and that Hance denied the statements and claims the matter was “blown out of proportion.” The circuit court concluded that in its opinion there were no grounds to call a grand jury, as the state police report “casts a dark shadow upon the complaint.”

|4On July 14, 2008, Appellants filed a motion for reconsideration and a motion to file, under seal, a taped interview with Hance. In the motion for reconsideration, Appellants argued that the circuit court improperly considered the state police report in deciding this matter and, thus, deprived them of a fair court proceeding. Appellants then requested the circuit court to listen to a taped statement of Hance given to Appellants’ counsel. The motion was deemed denied after thirty days, and Appellants filed their notice of appeal on September 12,

On appeal, Appellants argue that the circuit court erred in dismissing their complaint where the court erroneously considered evidence outside the record in determining that there was no good reason to convene a grand jury to investigate their allegations and, thus, violated the dictates of section 7-5-807.

This court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. City of Little Rock v. Rhee, 375 Ark. 491, 292 S.W.3d 292 (2009). Our standard of review for issues of statutory construction is well settled:

The basic rule of statutory construction is to give effect to the intent of the legislature. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible.

Id. at 495, 292 S.W.3d at 294 (quoting Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 82, 243 S.W.3d 285, 291 (2006) (citations omitted)).

Section 7-5-807 provides in relevant part:

(a) If ten (10) reputable citizens of any county shall file a complaint with the circuit judge within twenty (20) days after any election alleging that illegal or fraudulent votes were cast, that fraudulent returns or certifications were made, or that the Political Practices Act was violated, the circuit judge, if in his or her opinion there is good ground to believe the charges to be true, shall convene a special term at once unless the regular term is in session or will convene within thirty (30) days.

Considering the plain language of this statute, it is apparent that Appellants’ argument is without merit. First, nothing in the plain language of this statute prohibited the circuit court from considering the state police report in reviewing Appellants’ complaint. Moreover, Appellants present us with only conclusory allegations, and no citation to authority, to support their contention that the circuit court could look only to the face of the complaint in making such a determination. It is axiomatic that where no citation to authority or convincing argument is offered, this court will decline to address the issue on appeal. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002). Appellants’ attempted reliance on ArkCode Ann. § 16-85-503(a) (Repl.2005) describing the role of a grand jury does not explain why the circuit court was prohibited from considering the state police report.

Second, and more importantly, the statute provides that a grand jury will be convened only where the circuit judge “if in Ms or her opinion,” determines “there is good ^ground to believe the charges to be true.” ArkCode Ann. § 7-5-807(a) (emphasis added). The drafters of this statutory provision endowed the circuit court with great latitude in deciding whether to convene a grand jury, and this court cannot supplant its opinion for that of the circuit court.

Finally, we find no merit to Appellants’ contention that they have been denied their First Amendment right to a free and fair vote because they are left with no remedy at law, where the circuit court dismissed their complaint and where no other agency would complete a thorough investigation of their complaint. Again, this is a conclusory allegation unsupported by convincing argument or authority. Norman, 347 Ark. 682, 66 S.W.3d 635. Nevertheless, it is a meritless argument, as Appellants clearly had a remedy, the filing and review of a complaint in circuit court. The fact that Appellants did not prevail does not mean that they were without a remedy at law.

Affirmed.

      . The complaint listed other events including stopping use of a local business owner who supported candidate Best, issuing a warrant for Hagenbaugh’s sister on a hot-check charge, and searching a home after an emergency call was placed when someone there suffered an allergic reaction. Appellants alleged that these events were the direct result of political intimidation.