author: LARRY D. VAUGHT, Chief Judge.

text:
    2009 Ark. App. 356
    Ed Herman MORRIS, Appellant, v. LANDNPULASKI, LLC and Mark Wilcox, Commissioner of State Lands, Appellees.
    No. CA 08-1159.
    Court of Appeals of Arkansas.
    May 6, 2009.

      Stephen E. Whitwell, North Little Rock, for appellant.
    Gibson Law Firm, PLLC, by: Jesse J. Gibson, Little Rock, for appellee.
   LARRY D. VAUGHT, Chief Judge.

| Appellant Ed Morris appeals the trial court’s order dismissing his complaint seeking to set aside the limited warranty deed acquired by separate appellee LandNPulaski, LLC, following the tax sale of his property and quieting title to the subject property in his favor. Morris contends that notice of the tax sale did not meet strict statutory requirements and did not comport -with the Fourteenth Amendment’s Due Process Clause. We affirm.

Morris was the record owner of real property located at 2425 Whispering Pines Road in Little Rock, Pulaski County, Arkansas. There was no dispute that, at all times relevant to this cause, 2425 Whispering Pines Road was Morris’s correct address and that he actually resided at that address.

Morris failed to pay real-property taxes for the year 2000, and on March 26, 2003, his property was certified to the State of Arkansas in the care of separate appellee Commissioner 12of State Lands. The Commissioner, on June 5, 2003, sent a notice, via certified mail, to Morris at 2425 Whispering Pines Road advising that taxes on the property were delinquent, he could redeem the property, and the property would be offered for sale on July 7, 2005. The notice was returned to the Commissioner marked, “unclaimed.” On February 9, 2005, the Commissioner mailed a second notice to Morris at the same address, via certified mail, containing the same information. This notice was also returned to the Commissioner marked, “unclaimed.” In June 2005, the Commissioner published notice of the sale in the Arkansas Democrat-Gazette.

On July 7, 2005, the Commissioner sold Morris’s property to LandNPulaski at a public auction. Four days later, on July 11, 2005, the Commissioner mailed a third notice to Morris, via regular mail, notifying him that his property had been sold and advising him how to redeem it. This notice was not returned to the Commissioner. On August 12, 2005, a limited warranty deed was issued, transferring title to 2425 Whispering Pines Road to LandNPu-laski.

On October 12, 2005, Morris sued the Commissioner, LandNPulaski, and the Pulaski County Assessor, seeking to set aside the limited warranty deed and to quiet title in his name. He alleged that the Commissioner’s notice of the tax sale failed to strictly comply with Arkansas Code Annotated section 26-37-301 (Repl. 1997), and that the notice violated the Due Process Clause of the Fourteenth Amendment.

|sAt trial, Morris testified that he did not receive any of the notices sent by the Commissioner. He testified that some time in September 2005, he went to the office of the Pulaski County Assessor to pay his realty taxes. He was sent to the Commissioner’s office, where he was informed that his property had been sold to LandNPulaski at a public auction to satisfy delinquent taxes. Morris testified that this was the first notice that he received that his property had been subject to a tax sale. Morris immediately drove to the office of LandNPulaski and met with its associate, John Ryles. Ryles testified that when he met with Morris in September 2005, Morris admitted that he received the Commissioner’s July 11, 2005 notice, but he waited too long to file the necessary paperwork to redeem his property.

In its order dismissing Morris’s complaint and quieting title in the subject property in LandNPulaski, the trial court stated that it did not believe Morris’s testimony that he did not receive the three notices. The trial court did believe the testimony of Ryles who said that Moms admitted receiving the July 11, 2005 notice. The trial court found that the Commissioner’s notices were reasonably calculated to apprise Morris of the pendency of the action and afforded him an opportunity to present his objections. The trial court also found that because Morris did not have his property declared a homestead pursuant to proper statutory procedure, he was not entitled to personal service of the notice of the pending sale. On appeal, Morris insists that the Commissioner’s notice of the tax sale did not meet the strict requirements of Arkansas Code Annotated section 26-37-301 and did not comport |4with the Fourteenth Amendment’s Due Process Clause.

We first address whether the Commissioner complied with the notice requirements set forth in Arkansas Code Annotated section 26-37-301. The issue of notice given to the owner of tax-delinquent land is a matter of statutory interpretation. Mays v. St. Pat Properties, LLC, 357 Ark. 482, 182 S.W.3d 84 (2004). We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Id. In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.

In construing a statute, it is the court’s duty to construe it just as it reads. Jones v. Double “D” Properties, Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). When we construe a statute, we look first at the plain language of the statute and give the words their plain and ordinary meaning. Id. If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id.

In cases involving redemption of tax-delinquent lands, strict compliance with the requirement of notice of the tax sale is required before an owner can be deprived of his or her property. Citifinancial Mortgage Co., Inc. v. Matthews, 372 Ark. 167, 271 S.W.3d 501 (2008). The applicable statute, Arkansas Code Annotated section 26-37-301, provided the following regarding notice:

ls(a)(l) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(b) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale. The notice shall also indicate the sale date, and that date shall be no earlier than two (2) years after the land is certified to the Commissioner of State Lands.

Ark.Code Ann. § 26-37-301(a)(l) and (b).

The plain language of section 26-37-301 only requires notice to the property owner “by certified mail.” Arkansas appellate courts have confirmed this and have further held that the statute does not require actual notice to the property owner. Double “D” Properties, Inc., supra (holding that the notice statute only required that the Commissioner notify the property owner at the owner’s last known address by certified mail and that the Commissioner complied with this requirement even though notice was returned marked “unclaimed” — “the statute does not require the Land Commissioner to take every step possible to see that the letter arrives in the property owner’s hand”); Tsann Kuen Enter. Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003) (holding that the notice statute required that the Commissioner notify the property owner at the owner’s last known address by certified mail; the Commissioner complied with this requirement by sending two notices by certified mail, even though the first notice was returned marked “unclaimed” and | (-“forwarding order expired” and the second was marked “forwarding order expired”); Wilson v. Daniels, 64 Ark.App. 181, 980 S.W.2d 274 (1998) (holding that the notice statute required that the Commissioner notify the property owner at the owner’s last known address by certified mail; Commissioner complied with this requirement even though notice was returned marked “unclaimed or refused”). In this case, there is no dispute that the Commissioner sent two notices to Morris, both by certified mail, to his last known address. As such, we hold that the Commissioner strictly complied with the statute.

We must next determine whether the Commissioner’s notice met federal due-process requirements. The Due Process Clause of the United States Constitution, applicable to Arkansas through the Fourteenth Amendment, states: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. A fundamental requirement of due process in proceedings where the government seeks to deprive property from its owner is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). “Due process does not require that a property owner receive actual notice before the government may take his property.” Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). However, the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice. Mullane, 339 U.S. at 315, 70 S.Ct. 652. As such, when mailed notice of a tax sale is returned unclaimed, the Commissioner must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Flowers, supra.

In the case at bar, when faced with the return of the two pre-sale notices marked, “unclaimed,” the Commissioner sold Morris’s property. However, after the sale of the property, but before the title of Morris’s property was actually transferred to LandNPulaski, the Commissioner sent a third notice to Morris, via regular mail. This third notice, which was not returned to the Commissioner, advised Morris that his property had been sold and that “in order to cancel the sale and retain the ownership of the parcel, all taxes, penalties, interest and fees must be paid in full before 8/6/2005.” The notice further provided that:

If the parcel is not redeemed by the date given, a Limited Warranty Deed will be issued to the purchaser. There is a two-year litigation period following the sale during which time the sale may be contested in court.

This third notice clearly demonstrated that even after the sale, had Morris acted in a timely fashion, he could have taken the necessary steps to redeem his property. According to the testimony of Lisa Pelton from the Land Commission, title to the property in question did not transfer to LandNPulaski on the date of the public auction. The transfer of title only occurred after the expiration of the thirty-day redemption period. She also said that Morris had the right to set aside the sale. When specifically asked about whether there was any distinction in a property owner’s rights pre-sale and post-sale, Pel-ton testified: “When you say pre-sale and post-sale, I am really talking about the public auction where nobody’s position changes with respect to the property until the remaining redemption period expires.” Arkansas law supports Pelton’s testimony. See Ark.Code Ann. §§ 26-37-202(e) |sand 203(a) (Repl.1997) (providing that a property owner has thirty days after a tax sale to redeem his property); Ark.Code Ann. § 26-37-203(b)(l) (Repl.1997) (providing that there is a two-year litigation period in which a conveyance of tax-delinquent property may be contested); Ark.Code Ann. § 26-37-204 (Repl.1997) (detailing procedure for setting aside tax-delinquent sales). Because the third notice was sent to Morris during the post-sale redemption period — before there had been a deprivation of his property — the notice was an “additional reasonable step” required under Flowers. As such, we hold that the Commissioner’s notice comported with federal due-process mandates.

Morris incorrectly asserts that reversal is warranted because the factual scenario in his case is “precisely the factual scenario at issue in Flowers.” There, the Land Commissioner of the State of Arkansas, pursuant to section 26-37-301, mailed notice, by certified mail, to Jones to advise that he had not paid taxes and that if he did not pay, the property would be sold at a public auction. While Jones was the property owner, he did not live on the property at the time the notice was mailed. The notice was returned marked, “unclaimed.” The Commissioner also published notice of the delinquency and the pending public sale in the newspaper. No bids were submitted at the auction. Thereafter, a private sale was negotiated with Flowers. Before the private sale took place, the Commissioner mailed another notice, via certified mail, to Jones. It too was returned marked, “unclaimed.” When Flowers instituted an unlawful-detainer action against Jones, he filed a state-court action, alleging that the Commissioner failed to provide adequate notice of the tax sale and that his due-process rights were violated. The trial court granted summary judgment in favor of Flowers, | ¡finding that the Commissioner satisfied the requirements of the applicable statute and that the notice provided met due-process requirements. The Arkansas Supreme Court affirmed the trial court, Jones v. Flowers, 359 Ark. 443, 198 S.W.3d 520 (2004), and the Supreme Court of the United States granted certiorari.

The Supreme Court held that when notice of a tax sale, sent certified mail, is returned unclaimed, due process dictates that the Commissioner take additional reasonable steps to attempt to provide notice to the property owner of the action, if it is practicable to do so. Flowers, 547 U.S. at 226, 126 S.Ct. 1708. The Court stated that in this circumstance, the Commissioner took no additional reasonable steps to provide notice to Jones; therefore, the notice was insufficient to satisfy due-process requirements. The Court reversed and remanded the case to the Arkansas Supreme Court. Id. at 239, 126 S.Ct. 1708.

There are significant factual distinctions between Morris’s case and Flowers. The Commissioner in Flowers did not take any steps to provide notice beyond the two pre-sale certified letters and publication in the local newspaper when he knew that the certified letters had been returned. As such, Jones did not receive notice of the pendency of the State’s action until after the limited warranty deed had been issued to Flowers. To the contrary, the Commissioner in the instant case took the additional step of mailing a third notice to Morris. Morris actually lived on the tax-delinquent property (while Jones did not), and the third notice was not returned to the Commissioner. Importantly, in Morris’s case, the trial court expressly found that he received the third notice. As such, unlike Jones, Morris received actual notice of the pendency of the State’s action before he was deprived | )nof his property by the issuance of the limited warranty deed to LandNPulaski.

In sum, we hold that the Commissioner strictly complied with the notice requirements set forth in Arkansas Code Annotated section 26-37-301 and that the notice provided by the Commissioner met federal due-process constraints.

Affirmed.

MARSHALL and BAKER, JJ., agree.

      . The Pulaski County Assessor was later dismissed by order entered November 18, 2005.

      . Morris does not challenge the trial court's finding that he failed to have his property declared a statutory homestead; therefore, he was not entitled to personal service of the notice. As such, he has abandoned this argument. And we express no opinion on the soundness of this ruling.

      . This statute was amended in 2007 and now requires that the Commissioner take additional steps when providing notice to property owners of their right to redeem tax-delinquent land. See Ark.Code Ann. § 26-37-301 (Supp.2007).


source: Caselaw Access Project

author: RITA W. GRUBER, Judge.

license: Public Domain

text:
    2009 Ark. App. 365
    Henry NICHOLS and Regions Bank, Trustees for Alpha Trust, Appellants, v. CULOTCHES BAY NAVIGATION RIGHTS COMMITTEE, L.L.C., Appellee.
    No. CA 08-1448.
    Court of Appeals of Arkansas.
    May 6, 2009.

      Rose Law Firm, a Professional Association, by: Richard T. Donovan, Stephen N. Joiner, and Joi Leonard, Little Rock, for appellants.
    John H. Bell, McCroy, for appellee.
   RITA W. GRUBER, Judge.

| Appellants, Henry Nichols and Regions Bank, trustees for Alpha Trust, (hereinafter, “Alpha Trust”) bring this appeal from the Prairie County Circuit Court’s order of summary judgment, determining that a contested portion of Culotches Bay is navigable and subject to public use. Alpha Trust asserts two points on appeal: first, it contends that the trial court erred in granting summary judgment to appellee when appellee did not request summary judgment, and second, it contends that the trial court erred in denying its motion for summary judgment. We affirm the trial court’s denial of Alpha Trust’s motion for summai’y judgment, but we hold that the trial court erred in its sua sponte grant of summary judgment to appellee and reverse and remand.

Appellee, Culotches Bay Navigation Rights Committee, L.L.C., initiated this case |2by filing a petition for declaratory judgment of navigability. Appellee contended that Culotches Bay, referred to by the parties as a stream or lake, is and has been a navigable stream for over one hundred years. Culotches Bay is approximately six miles long, and Alpha Trust owns most of the land on both sides of the Bay. The Bay drains into a narrow ditch that is approximately 1.4 miles long, and the ditch empties into the Cache River. Appellee alleged in its petition that Alpha Trust had placed signs at the intersection of the Bay with its property declaring all waters beyond the signs to be the property of Alpha Trust. Appellee sought a declaration as to the navigability, and therefore public or private ownership, of Culotches Bay.

Alpha Trust filed a motion for summary judgment, alleging that the Cache River, by statute, was non-navigable and therefore that the isolated lake on its property was non-navigable. In the brief in support of its motion, Alpha Trust disputed appel-lee’s claim that the Bay had significant recreational value. However, Alpha Trust’s principal argument was that, to be navigable, a water course must have a useful capacity as a public highway of transportation, whether or not it was used for recreation. Because the Bay emptied into the Cache River, a non-navigable river, Alpha Trust contended that it could not, as a matter of law, have a useful capacity as a public highway of transportation.

Appellee responded to the motion for summary judgment, citing the supreme court’s decision in State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), for its holding that a water course can be considered navigable due solely to recreational use. Appellee provided ^deposition testimony and affidavits that Culotches Bay had been and was being used for recreational purposes.

On July 28, 2008, the trial court entered an order denying Alpha Trust’s motion for summary judgment. Several weeks before trial, on August 7, 2008, the trial judge sent a letter to counsel for both parties indicating that it had determined that the contested portion of Culotches Bay was navigable and subject to public use. He asked appellee’s counsel to prepare a precedent.

On August 14, 2008, Alpha Trust filed a motion asking the court to reconsider its proposed order finding the disputed portion of Culotches Bay to be navigable. Alpha Trust argued that it disputed whether the Bay had been used for years by the general public and whether it had significant recreational value. Alpha Trust also contended that an order declaring the Bay navigable would be inappropriate because appellee had not filed a motion for summary judgment or a motion to dismiss and thus there was no burden on Alpha Trust to meet proof with proof.

In an order entered September 15, 2008, the trial court noted that it had heard Alpha Trust’s motion for summary judgment and that the issue was whether a portion of Culotches Bay was navigable. The court then denied Alpha Trust’s motion to reconsider and found that the contested portion of Culotches Bay was navigable and subject to public use. Alpha Trust appealed this order granting summary judgment to appellee and the trial court’s earlier order of July 28, 2008, denying Alpha Trust’s motion for summary judgment.

I.

Alpha Trust first contends that the trial court’s sua sponte summary-judgment order was error as a matter of law because appellee did not file a motion for summary judgment, motion to dismiss, or motion for judgment on the pleadings. Accordingly, Alpha Trust argues that it had no burden to meet proof with proof. We agree.

In support of the court’s order of summary judgment, appellee cites B.G. Coney Co. v. Radford Petroleum Equipment Co., 287 Ark. 108, 696 S.W.2d 745 (1985). In that case, the supreme court held that it was not error for the trial court to grant summary judgment to all of the appellees even though some of them had not moved for summary judgment. 287 Ark. at 111, 696 S.W.2d at 748. The court recognized, first, that lack of notice to appellant was not a concern in that case because several appellees had filed motions for summary judgment and, second, that appellant did not object on this basis in the trial court. Id. The court stated that it was not required to consider an issue not raised at trial. Id.

In Rogers v. Lamb, 347 Ark. 102, 60 S.W.3d 456 (2001), the supreme court held that it was error for the trial court to enter an order granting summary judgment to a party in the absence of an appropriate motion requesting such relief, stating that appellee “fail[ed] to offer any argument or authority in support of a court’s granting summary judgment in the absence of a proper motion filed pursuant to Ark. R. Civ. P. 56.” The court also indicated that it was convinced that genuine issues of material fact remained in dispute.

This court followed the supreme court’s holding in Rogers in 2200 Commercial Street Warehousing, L.L.C. v. Hastings Development Co., 98 Ark.App. 316, 255 S.W.3d 488 (2007), and reversed the trial court’s sua sponte grant of summary judgment. We reasoned that the order deprived appellant of the opportunity to meet proof with proof and demonstrate that issues of material fact remained to be decided. We distinguished the supreme court’s decision in B.G. Coney Co., stating that there was no waiver of the issue in the trial court — as in this case, the appellant in 2200 Commercial Street Warehousing, L.L.C. objected in the trial court to the sua sponte entry of summary judgment— and there was no co-party motion for summary judgment by a party with the same legal position to put appellant on notice that it was required to meet proof with proof in response.

While Alpha Trust did file a motion for summary judgment in this case on the issue of navigability, it was not on notice that it needed to meet proof with proof on all of the elements relating to navigability — specifically, the amount and significance of the recreational use of Culotches Bay. Alpha Trust’s motion and evidence primarily concerned the non-navigability of the Cache River and the effect of that fact on the navigability of Culotches Bay. In response to Alpha Trust’s motion for summary judgment, appellee argued that the supreme court's decision in State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), changed the law by holding that recreational use alone could constitute navigability. Appellee then provided affidavits and deposition testimony to demonstrate recreational use on Culotches Bay.

Alpha Trust responded, arguing that recreational use alone did not render a lake | innavigable and that McIlroy did not eliminate the requirement set forth in Parker v. Moore, 222 Ark. 811, 814, 262 S.W.2d 891, 893 (1953), that, to be navigable, the water course must “have a useful capacity as a public highway of transportation.” Because appellee was merely responding to Alpha Trust’s motion for summary judgment and did not file a cross-motion for summary judgment, Alpha Trust was not on notice that it needed to meet proof with proof on all potential elements of navigability. Its position was that recreational use alone could not, as a matter of law, render a lake navigable. Therefore, we hold that the trial court’s sua sponte grant of summary judgment to appellee was error.

II.

For its second point on appeal, Alpha Trust asserts that the trial court erred in denying its motion for summary judgment. Although an order denying a motion for summary judgment is generally not appealable because it is an interlocutory order, we will review certain interlocutory orders in conjunction with the appeal of a final judgment. Zulpo v. Farm Bureau Mutual Ins. Co., 98 Ark.App. 320, 255 S.W.3d 494 (2007). In Zulpo we reviewed an order denying summary judgment in conjunction with the appeal of an order granting summary judgment. Because the trial court’s order granting summary judgment in this ease was a final order terminating the proceeding below, we will review the court’s denial of Alpha Trust’s motion for summary judgment. We review an order denying a motion for summary judgment for abuse of discretion. Karnes v. Trumbo, 28 Ark.App. 34, 41, 770 S.W.2d 199, 202-03 (1989).

7Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 95, 146 S.W.3d 852, 854 (2004). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 581, 940 S.W.2d 445, 447 (1997).

Alpha Trust argues that one of the elements appellee must prove to establish navigability is that Culotches Bay is part of a public highway of transportation. It argues that merely proving that the Bay is used by the public for recreation is not sufficient without also establishing this element of transportation. It contends that Mcllroy did not hold that recreational use alone is sufficient to render a body of water navigable. In support of its position, Alpha Trust quotes the following language from Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark.App. 276, 286-87, 126 S.W.3d 738, 744 (2003): “obviously, the occasional foray by a fisherman into an area does not render it navigable; if that were so, every creek and pond in the state would be navigable.” Accordingly, Alpha Trust contends that, as a matter of law, appellees have failed to demonstrate navigability and therefore the trial court abused its discretion in denying Alpha Trust’s motion for summary judgment.

We disagree with Alpha Trust’s interpretation of Mcllroy. “Determining the navigability of a stream is essentially a matter of deciding if it is public or private property.” Arkansas River Rights Committee, 83 Ark.App. at 285, 126 S.W.3d at 743 (citing State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980)). In Arkansas River Rights Committee we quoted the traditional definition of navigability regarding the usefulness to the public of the water “as a means of carrying off the products of their fields and forests, or bringing them articles of merchandise” and then noted that this definition was expanded by the supreme court in McIlroy. Id. at 286, 126 S.W.3d at 744. We stated that, under Mcllroy, it was apparent that navigability could be established by recreational usefulness as well as commercial usefulness. The partial quotation from Arkansas River Rights Committee relied upon by Alpha Trust states in full as follows:

Admittedly, there is nothing in the record at this point to show that the level of recreational use in the Echubby areas compares with the extensive use of the Mulberry River in Mcllroy, and obviously, the occasional foray by a fisherman into an area does not render it navigable; if that were so, every creek and pond in the state would be navigable.

83 Ark.App. at 286-87, 126 S.W.3d at 744. The issue in that case was not transportation but the amount of recreational use. Moreover, in State v. Hatchie Coon Hunting & Fishing Club, Inc., 372 Ark. 547, 556, 279 S.W.3d 56, 62 (2008), the supreme court cited Mcllroy for its holding “extending definition of navigable waters to those waters suited only for recreational purposes.”

Thus, we hold that it was not an abuse of discretion for the circuit court to deny Alpha Trust’s motion for summary judgment. However, we reverse and remand the trial court’s order granting summary judgment in accordance with Part I of this opinion.

Reversed and remanded in part; affirmed in part.

PITTMAN and ROBBINS, JJ., agree.


author: ROBERT J. GLADWIN, Judge.

text:
    2009 Ark. App. 382
    Allen L. LAMPKIN, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1093.
    Court of Appeals of Arkansas.
    May 13, 2009.
    William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., Little Rock, for appellee.
   ROBERT J. GLADWIN, Judge.

This is the second appeal in this case. Appellant Allen Lampkin argues that the circuit court abused its discretion in dismissing his district-court appeal and remanding the case back to district court when he failed to appear at a pretrial status hearing. The State concedes error; because we agree, we again reverse and remand.

Appellant was convicted in the Little Rock District Court of driving while intoxicated. He appealed, and the circuit court dismissed the appeal and remanded the case to district court for sentencing. He appealed the circuit-court dismissal, and this court reversed the dismissal, holding that the circuit court erred in determining that appellant failed to appear without good cause. On remand, a pretrial status hearing was held in the circuit court on April 28, 2008. Neither appellant nor his attorney appeared that day. On May 27, 2008, the circuit court entered an order again dismissing his appeal and remanding the case to Little Rock District Court. This timely appeal followed.

We review questions of statutory interpretation de novo and construe criminal statutes strictly, resolving all doubts in favor of the defendant. See Lampkin v. State, 101 Ark.App. 275, 275 S.W.3d 679 (2008). An appellant may raise an erroneous dismissal for the first time on appeal. See Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006).

Arkansas Code Annotated section 16-96-508 (Repl.2006) permits the circuit court to dismiss an appeal and remand the case back to the district court when a defendant fails to appear for trial. However, a dismissal is not proper when the defendant fails to appear for a pretrial hearing. See Ayala, supra; Williams v. State, 79 Ark.App. 216, 85 S.W.3d 561 (2002).

Because appellant failed to appear at a pretrial hearing, rather than at his trial, the parties agree that the circuit court lacked the authority to dismiss appellant’s appeal. We agree and reverse and remand for further proceedings.

Reversed and remanded.

HART and KINARD, JJ., agree.


text:
    2009 Ark. App. 377
    Harvey Eugene CHAMBERS, Appellant, v. Anne Walker RATCLIFF, Appellee.
    No. CA 08-1283.
    Court of Appeals of Arkansas.
    May 13, 2009.

      Taylor Law Partners, by John Mikesch, Fayetteville, for appellant.
    No response.
   LARRY D. VAUGHT, Chief Judge.

Lin this one-brief appeal, Harvey Eugene Chambers argues that the trial court committed reversible error by permitting appellee Anne Ratcliff to petition for a finding of contempt against him, without joining or substituting their adult children, because she did not have standing to bring the action. He also argues that the trial court erred by permitting the adult children to assign their interest in the action to their mother, without requiring that the children be joined or substituted as the real parties in interest in the lawsuit. We affirm.

Chambers and Ratcliff were divorced by order of the court on April 21, 1998. The divorce decree incorporated a property-settlement, child-custody, and child-support agreement. Section 8 of the agreement required that the parties maintain life-insurance policies, naming the two children of the marriage (Rory and Alaina) as beneficiaries. The 12life-insurance requirement was for an undetermined period of time.

On June 12, 2007, Ratcliff filed a contempt petition claiming that Chambers had not complied with the court’s order by failing to maintain life-insurance policies for their children in accordance with Section 8 of their agreement. Chambers responded, claiming that Ratcliff did not have standing to bring the action. In response to the contention that Ratcliff lacked standing, the trial court entered an order on November 8, 2007. In the order, the trial court ruled that the parties’ children (now adults) were necessary, real parties in interest and required Ratcliff to join or substitute them as parties to the contempt action within thirty days. The trial court further concluded that if Rat-cliff did not comply, the action would be dismissed.

On November 27, 2007, Rory and Alaina filed separate assignments of interest, entries of appearance, and waivers of service. Chambers, on December 4, 2007, filed a motion and brief requesting that the trial court strike the assignments of interest, entries of appearance, and waivers of service. Subsequent to this filing, the parties had a conference call with the trial judge, wherein the court ordered that the assignments were sufficient. Chambers’s attorney objected to the children not being substituted as parties. The court noted that the children could be subpoenaed as witnesses.

After several more objections and motions to strike were filed, on July 7, 2008, a bench trial was held on the underlying contempt claim. The court ultimately found that Section 8 of the parties’ agreement required that the parties maintain life insurance for the children’s benefit for life, that Chambers was not in contempt, and that Chambers was to |spay Ratcliffs costs and attorneys’ fees.

In reviewing a bench trial, we must determine whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Housley v. Hensley, 100 Ark.App. 118, 265 S.W.3d 136 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. We give special deference to the superior position of the trial judge to evaluate the credibility of witnesses and their testimony; however, we give no deference to the trial judge’s conclusions on questions of law. Id.

Here, the mistake is not in the trial court allowing an assignment of rights to serve in lieu of a substitution of a necessary party in interest, which is problematic on its face. Instead, the trial court erred when it first concluded that the children were necessary parties in interest. Rule of Civil Procedure 17(a) says that “[ejvery action shall be prosecuted in the name of the real party in interest.... [A] party with whom or in whose name a contract has been made for the benefit of another ... may sue in his own name without joining with him the party for whose benefit the action is being brought.” Also, it is well settled that “[a] real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery.” Forrest Constr., Inc. v. Milam, 345 Ark. 1, 11, 43 S.W.3d 140, 147 (2001).

Here, the divorce-decree-settlement agreement is in essence a contract between Chambers and Ratcliff, to which Rory and Alaina are third-party beneficiaries. Thus, as a party to the original contract, Ratcliff had standing to bring the contempt action even |4though it was her children who stood to benefit from her enforcing the decree. Because the divorce decree was between only Chambers and Ratcliff, we find that as a matter of law she is the proper party to bring a contempt action to enforce a provision of the decree.

This is not a new action. Ratcliff was not filing a pleading and asserting a claim, but rather filing a motion asking the court to enforce a decree provision. Morsy v. Deloney, 92 Ark.App. 383, 214 S.W.3d 285 (2005). In fact, the children are not (and perhaps could never be) necessary parties to a contempt action arising from their parents’ divorce decree. To accept Chambers’s argument that only the children have standing to pursue this action would produce an absurd result. We are unwilling to require a child, who is a third-party beneficiary to a provision of his parents’ divorce decree, to file a motion for contempt against one of his parents to enforce a provision of the decree that enures to the child’s benefit. Such a position offends both public policy and contract law. In conclusion, we hold that Ratcliff had standing to bring the contempt action and ask the court to enforce the parties’ agreement.

Finally, we address the award of attorneys’ fees. An award of attorneys’ fees will not be disturbed on appeal absent an abuse of discretion. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). Here, the trial court noted that it believed that Chambers was not in contempt, but rather he “was wrong in his interpretation [of the life-insurance-policy provision], but I don’t feel like he willfully or intentionally, just to spite [Ratcliff] or the children, let the policy lapse.” The court also noted that once Chambers was on notice of | sthe proper interpretation, “he submitted himself for a physical and started the process of getting [the] proper life insurance that the court ordered him to do.” Based on these comments, Chambers argues that the trial court abused its discretion by ordering fees in contempt action after finding that he was in fact, not in contempt. However, the trial court did note that although it was not finding Chambers in contempt “that does not address [Rat-cliffs] out of pocket expenses in making Dr. Chambers comply with the court order. If he would have done what the court order said, she wouldn’t be out any money. So I am going to assess costs and attorneys’ fees against Dr. Chambers.” Under our very deferential review standard, we hold that such an award was within the court’s discretion and affirm. See Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979).

Affirmed.

MARSHALL and BAKER, JJ, agree.


text:
    2009 Ark. App. 385
    NATIONWIDE ASSURANCE COMPANY, Appellant, v. Michael LOBOV, Appellee.
    No. CA 08-982.
    Court of Appeals of Arkansas.
    May 13, 2009.

      Anderson, Murphy & Hopkins, LLP, by: Randy P. Murphy, and Jodie L. Hill, Little Rock, for appellant.
    Cullen & Co., PLLC, by: Tim Cullen, Little Rock; and Odom Law Firm, P.A., by: Alan L. Lane, Fayetteville, for appel-lee.
   RITA W. GRUBER, Judge.

| Appellee Michael Lobov was a passenger in a car involved in a one-car accident. After obtaining a default judgment of compensatory and punitive damages against the driver, Lobov filed the present declaratory-judgment action against the driver’s insurance carrier, appellant Nationwide Assurance Company, seeking a declaration of coverage. The Washington County Circuit Court found that there was coverage under Nationwide’s policy and Nationwide appeals. We affirm.

The events underlying this litigation occurred on the evening of August 4-5, 2005. Lobov and a friend, Jon Neralich, went to a club in Fayetteville where both consumed alcohol, Neralich to the point of intoxication. While at the club, Neralich received an urgent telephone call from his girlfriend indicating that she was in some sort of trouble. En route to Laid his girlfriend, while exceeding the posted speed limit, Neralich lost control of the vehicle and crashed. Lobov, a passenger in Nera-lich’s vehicle, was injured in the accident, requiring surgery and hospital care.

On June 2, 2006, Lobov filed a complaint against Neralich for negligence relating to the accident. The complaint sought both compensatory and punitive damages. By letter dated June 15, 2006, Nationwide determined that there was no coverage for the accident, relying on several provisions of the policy. Nationwide’s policy excluded coverage for personal injuries resulting from the accidental or unintended result of a willful or malicious act by the policyholder. The policy also did not extend to the payment of punitive damages. Neralich failed to answer the complaint, and Lobov obtained a default judgment against him. The default judgment awarded Lobov compensatory damages of $24,590.85 for past medical bills, $10,000 for past pain and suffering, and $5,000 in punitive damages.

The present case began when Lobov filed a petition for declaratory judgment against Nationwide on August 27, 2007, alleging that Nationwide had wrongfully refused coverage under the policy. Nationwide timely answered.

Nationwide later filed a motion for summary judgment. In its brief in support of the motion, Nationwide asserted that Lo-bov had no standing to bring the declaratory-judgment action, that Neralich’s conduct in causing the accident was willful or malicious within the meaning of the policy exclusion, that the policy did not cover punitive damages, and that Lobov was residing with Neralich at the time of the accident, thereby precluding coverage. | ;/f he circuit court granted the motion with respect to the punitive-damages award. However, the court denied the motion in part because there were fact questions as to whether Neralich’s conduct was willful or malicious and whether Lobov was a resident of Neralich’s household at the time of the accident.

The case proceeded to a bench trial. Jon Neralich discussed the events surrounding the accident. Although he admitted to drinking on the night of the accident, he denied that he knew that he was too drunk to drive or that it would cause him legal problems. He also said that he did not intend to either lose control or wreck his vehicle. Neralich denied that the police were chasing him at the time of the accident because he did not see a flashing police light or that his fleeing from the police caused the accident. He understood that he had been traveling at 100 miles per hour. Neralich did not recall doing anything deliberately or intentionally to cause the accident. On cross-examination, Neralich said that he was arrested and charged with driving while intoxicated, misdemeanor fleeing, and reckless driving. He later entered a guilty plea on all charges.

Michael Lobov testified that Neralich did not appear intoxicated, just upset or agitated. He said that Neralich was traveling at 100 miles per hour and that he asked him to slow down two to four seconds prior to the accident, but he did not know if Neralich heard him. Lobov admitted that he testified in his deposition that he did not believe that Neralich was a good driver in general and that he was concerned because Neralich was upset.

At the close of Lobov’s case, Nationwide moved for dismissal on the basis of the Larguments made in its motion for summary judgment. When the motion was denied, Nationwide did not put on any evidence or renew its motion.

The circuit court ruled from the bench and found that Neralich was willfully exceeding the speed limit. The court also found that Neralich did not believe that he was too impaired to drive and that he did not know that he was being pursued by the police. The court then found that Nera-lich’s conduct in causing the accident was not willful or malicious within the terms of Nationwide’s policy. Based on these findings, the court concluded that the “willful or malicious acts” exclusion did not apply and that Lobov’s damages from the accident were covered under the policy. The court’s written judgment was entered on June 24, 2008. This appeal followed.

We cannot address Nationwide’s first point that Lobov is judicially estopped from asserting that Neralich’s conduct was not willful or malicious within the meaning of Nationwide’s policy. Although Nationwide argued that Lobov had alleged in the prior tort case that Neralich’s conduct in driving while intoxicated, recklessly speeding, and fleeing |5from the police were “willful and wanton acts” entitling Lobov to punitive damages, nowhere did Nationwide specifically argue that Lobov was judicially estopped by virtue of the earlier tort proceeding. Moreover, the circuit court did not specifically rule on the issue of judicial estoppel, either in the motion for summary judgment or in the denial of the motion to dismiss. We will not consider judicial-estoppel arguments on appeal when a party has failed to obtain a ruling from the circuit court. See, e.g., City of Fort Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008); Beverly Enters.-Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445 (2007).

Nationwide next argues that the circuit court erred in concluding that the policy exclusion for the accidental or unintended results of willful conduct did not apply because the circuit court found that Neralich was willfully speeding. We disagree.

Contrary to Nationwide’s argument, the circuit court did not find that the term “willful” as used in the policy was ambiguous. Rather, the court adopted a definition of “willful” consistent with Arkansas case law and, based on that definition, found that the exclusion at issue was ambiguous in that it is not clear in what circumstances that exclusion would apply. The cases relied upon by Nationwide for its argument that the exclusion at issue is not ambiguous, Norris v. State Farm Fire & Casualty Co., 341 Ark. 360, 16 S.W.3d 242 (2000), and Parker v. Southern Farm Bureau Casualty Insurance Co., 104 Ark.App. 301, 292 S.W.3d 311 (2009), are not dispositive in that they involve homeowners policies while the present case involves automobile insurance. The distinction between the way in which | fihomeowners and automobile drivers encounter risk under the respective policies is important.

Nationwide seeks a literal construction of the policy in which, as it confirmed at oral argument before this court, it would exclude coverage for any willful act committed by the insured party that precipitates an injury, regardless of whether the willful act was the one that actually caused the injury or whether intended by the insured to cause such harm. In these circumstances, we agree with the Nebraska Supreme Court when, on substantially similar facts, it said that:

If we were to accept [the insurer’s] argument, we would be compelled to hold that in every accident where there is any evidence of a violation of law or any evidence that the automobile was then being knowingly and intentionally operated, though perhaps in a negligent or careless or reckless manner, there would be no coverage for the damage done to another’s property by reason of the driver’s operation of his vehicle. In essence, we would be virtually making insured motorists uninsured motorists by reason of their own acts. We believe that that would be totally contrary to both the intent of the policy and the protection it offers, as well as the public policy of this state. Absent specific evidence to support the claim that the driver of a motor vehicle specifically intended to cause an injury similar to the type which resulted, we hold that damage to property owned by another and caused by reason of the negligent, or careless, or even reckless operation of an automobile is covered by a liability provision of a policy, as in this policy, and is not bodily injury or property damage caused intentionally by or at the direction of the insured and therefore not within the exclusion of a liability policy which specifically excludes coverage for damages to persons or property caused intentionally by or at the direction of the insured.

Sullivan v. Great Plains Ins. Co., 210 Neb. 846, 317 N.W.2d 375, 378 (1982).

Our courts have consistently limited the exclusion of accidental or unexpected results from coverage of liability policies. Southern Farm Bureau Cas. Ins. Co. v. Easter, 345 Ark. 273, 45 S.W.3d 380 (2001). Exclusionary endorsements must, therefore, adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004). Certainly not every intentional act committed by an insured in connection with the operation of his vehicle constitutes a “willful act” within the meaning of this exclusion. However, the exclusion does not clarify that it only excludes willful acts that directly injure people or property. Willfully speeding, driving in the rain, turning on the radio, or performing any number of “willful acts” while operating one’s vehicle may indirectly lead to an accident. Excluding coverage for all of these willful acts would, however, effectively nullify an insured’s coverage under the policy. Accordingly, we hold that the circuit court correctly found coverage for Lo-bov’s injuries.

Finally, Nationwide argues that the circuit court erred in finding that Neralich did not willfully operate his vehicle after consuming alcohol or willfully flee from the police. In his testimony, Neralich said that he drank on the night of the accident. He also said that he did not know he was too drunk to drive. Neralich also testified that he did not willfully flee from the police because he did not recall seeing any flashing lights. Nationwide relies on the fact that Neralich entered a guilty plea to establish that Neralich was acting willfully in fleeing from the police. The circuit court made findings that Neralich did not feel that he was impaired to drive and that “the credible testimony was that [Neralich] didn’t know he was being pursued by anybody.”

|xBoth of these determinations were essentially findings of credibility. The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. First Nat’l Bank v. Garner, 86 Ark.App. 213, 167 S.W.3d 664 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In deferring as we must to these findings made by the circuit court, we cannot say that they are clearly erroneous.

Affirmed.

PITTMAN and ROBBINS, JJ., agree.

      . The court also found that Lobov was not a member of Neralich's household at the time of the accident and that the exclusion for bodily injury to a resident of the insured's household did not apply. Nationwide does not make any argument concerning this exclusion in this appeal.

      . Lobov filed a motion for post-judgment interest on the entire judgment, including the punitive damages. The circuit court found that Nationwide was liable for post-judgment interest on the entire amount of the compensatory damages awarded, but not on the award of punitive damages. Nationwide filed an amended notice of appeal to include the award of post-judgment interest. However, Nationwide does not argue the issue in this appeal.


author: Justice VENTERS. SCOTT, Justice,

text:
    Veronica JEWELL, Appellant, v. KENTUCKY SCHOOL BOARD ASSOCIATION, Appellee.
    No. 2008-SC-000244-DG.
    Supreme Court of Kentucky.
    Jan. 21, 2010.
    Rehearing Denied May 20, 2010.

      John E. Anderson, Dennis L. Nagle, Cole, Cole, Anderson & Nagle, W. Patrick Hauser, Barbourville, KY, Counsel for Appellant.
    John Steven Harrison, Frankfort, KY, Counsel for Kentucky School Board Association.
    Jeanie Owen Miller, Jeanie Owen Miller Law Offices, PLLC, Owensboro, KY, Counsel for Kentucky Justice Association.
   Opinion of the Court by

Justice VENTERS.

This case arises from a motor vehicle collision where the injured party, at work when the collision occurred, pursued her remedies against her under-insured motorist insurer. Among other issues, we address the question of whether an injured worker, as assignee of her workers’ compensation carrier’s subrogation rights, may enforce those rights against her underin-sured motorist insurance provider. Although prior decisions have addressed separate elements of the issue, we find none that have application to the combination of factors present here.

RELEVANT FACTS

Appellant, Veronica Jewell, while working as a school bus monitor for Williams-burg Independent School System, injured her left knee when the school bus she was riding was struck by another vehicle. The driver of the other vehicle caused the collision. Appellee, Kentucky School Board Association (KSBA), administered a liability self-insurance trust for the school system, and thereby provided motor vehicle insurance coverage for Appellant that included $20,000.00 in basic reparation benefits (BRB) and underinsured motorist (UIM) protection.

The school system’s workers’ compensation carrier paid $17,734.55 in medical benefits on behalf of Appellant, mainly for knee surgery. She also received temporary disability income benefits of $784.55. Appellant later had total knee replacement surgery. The workers’ compensation carrier denied payment for that surgery, based on its assessment that the need for the surgery did not arise from the work-related accident. Ultimately, the knee replacement surgery was paid for by Appellant’s health care insurer, whose right to subrogation was preserved.

Eventually, Appellant settled the dispute with her workers’ compensation insurer for $25,000.00, from which $8307.45 was paid to the health insurer to satisfy its right of subrogation. As part of the settlement, the workers’ compensation carrier and the health care insurer assigned to Appellant their third-party subrogation rights.

The only BRB payments paid by KSBA to, or on behalf of, Appellant was $333.45 for lost wages not paid by workers’ compensation.

After settling her tort claim against the negligent driver for his liability policy limits of $25,000, Appellant filed suit against Appellee, KSBA, for the available UIM coverage. The case was tried in the Whitley Circuit Court by a jury which found that Appellant suffered the following damages as a result of the accident:

Medical expenses to date $ 70,558.77
Future medical expenses .00
Lost wages or income $ 5,544.00
Future lost wages .00
Pain and Suffering $ 25,000.00
TOTAL $101,102.77

Before entering final judgment, the trial court reduced the award by the $25,000.00 paid by the tortfeasor’s liability carrier and $333.45 previously paid to Appellant by KSBA as basic reparation benefits.

On appeal, the Court of Appeals held: 1) that Appellant’s UIM carrier was entitled to an offset for workers’ compensation benefits paid on Appellant’s behalf; 2) that Appellant’s judgment could not be credited with the attorney’s fees and expenses she incurred; and, 3) that Appellant’s judgment should have been reduced by the full $20,000 of available BRB, rather than $333.45 in benefits actually paid.

We affirm the Court of Appeals with respect to the first two issues. On the third issue, we reverse the Court of Appeals.

ANALYSIS

I. APPELLANT, AS ASSIGNEE OF HER WORKERS’ COMPENSATION CARRIER’S SUBROGATION RIGHTS, MAY NOT ENFORCE THOSE RIGHTS AGAINST HER UIM PROVIDER.

Appellant challenges the Court of Appeals’ decision that barred her claim against KSBA’s UIM coverage in the amount of the workers’ compensation award, arguing the KRS 342.700(l)’s prohibition against double recovery does not apply to her because she is exercising her own rights as the injured employee and her rights as assignee of her workers’ compensation provider. KRS 342.700(1) provides, in part:

“Whenever an injury for which compensation is payable under this [workers’ compensation] chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employee may either claim compensation or proceed at law by civil action against the other person to recover damages, or proceed both against the employer for compensation and the other person to recover damages, but he shall not collect from both.... If compensation is awarded under this chapter [the workers’ compensation provider] ... may recover ... from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to the injured employee, less the employee’s legal fees and expense.”

KRS 342.700(1) plainly states that a workers’ compensation insurance provider has a right of recovery against the tortfea-sor for the liability it incurred on behalf of an injured worker. Appellant correctly relies on the holding of Weinberg v. Crenshaw, 896 S.W.2d 22, 24 (Ky.App.1995) that a provider of workers’ compensation benefits may assign that right to the injured worker, and that the injured worker may enforce that right against a person “other than the employer” who is legally liable for the damages. Doing so does not offend KRS 342.700(i )’s rule against double recovery. Weinberg is solidly grounded on the principle that as assignee, the injured employee “step(s) into the shoes” of the insurance carrier and his claim against the tortfeasor exists as a derivative action based on the assignment rather than an independent claim of tort victim in his own right. Id. at 24. There is no “double recovery” when the injured employee/assignee recoups from the tortfea-sor what the insurance carrier/assignor had a right to recover. Nor, does the tortfeasor or his insurer pay the same damage twice. What is paid to the injured employee as tort victim compensates different damages than funds paid to recompense the workers’ compensation provider.

In Krahwinkel v. Commonwealth Aluminum Corp., 183 S.W.3d 154 (Ky.2005), citing decisions dating back to the initial enactment of the workers’ compensation statutes, we held that KRS 342.700(1) precludes a plaintiff from recovering from a tortfeasor the same elements of damages for which he had already been compensated by way of workers’ compensation benefits; and that the tortfeasor is entitled to an offset or credit against the judgment for those damages awarded by the jury that duplicate workers’ compensation benefits. 183 S.W.3d at 160. The workers’ compensation carrier’s apparent abandonment of its subrogation rights against the tortfeasor does not effect a transfer of those rights to the injured worker. The result may be a “windfall” for the tortfea-sor, but such is the case any time a cause of action goes unpursued. Krahwinkel, however, did not arise from a motor vehicle accident and therefore does not address the liability of a UIM provider.

Cincinnati Ins. Co. v. Samples, 192 S.W.3d 311 (Ky.2006), did involve the liability of an UIM carrier. In Samples, we applied the Krahwinkel holding to a plaintiff who was seeking to recover from his UIM carrier the same elements of damages for which he had already been compensated by way of workers’ compensation benefits. We held that because the UIM carrier “stands in the wrongdoer’s shoes for purposes of paying damages,” and since under Krahwinkel, the tortfeasor had no liability to the injured employee to the extent of workers’ compensation benefits, the UIM carrier had no liability for the same damages. Id. at 316.

Appellant distinguishes herself from the plaintiffs in Krahwinkel and Samples because, unlike those parties, she holds a valid assignment of the workers’ compensation insurer’s subrogation rights against the tortfeasor, which she may under Weinberg v. Crenshaw clearly enforce. The question she raises now is whether that claim may be enforced, not against the tortfeasor or his liability insurance carrier (whose liability was extinguished by paying Appellant the policy limits), but against KSBA, her own UIM provider.

KRS 342.700(1) permits Appellant’s workers’ compensation carrier to recover from “the other person in whom legal liability for damages exists.” Appellant urges us to enunciate a construction of that phrase broad enough to include KSBA in its role as a UIM provider. Such a construction would require that we overrule the long-standing precedent established by this Court in State Farm Mutual Ins. Co. v. Fireman’s Fund Am. Ins. Co., 550 S.W.2d 554 (Ky.1977), and more recently followed by the Court of Appeals in G & J Pepsi-Cola Bottlers, Inc. v. Fletcher, 229 S.W.3d 915 (Ky.App.2007); State Farm Mutual Ins. Co. v. Fireman’s Fund Am. Ins. Co. holds:

A payment made in performance of a contractual obligation is not a payment of “damages.” Hence the liability of an insurance company under its uninsured motorist coverage cannot be the “legal liability for damages” mentioned in KRS 342.055 [now codified as KRS 342.700(1) ]. Moreover, the satisfaction of an injured party’s claim by his own insurance company under its uninsured motorist coverage does not inure to the benefit of the uninsured motorist. His liability is not extinguished, and it may be enforced by both the carrier which has paid workmen’s compensation benefits and the carrier which has paid under the uninsured motorist coverage....
To hold that the contractual rights of an insured party under the uninsured motorist clause of an automobile liability insurance policy must inure to the benefit of a workmen’s compensation carrier ... would confer upon the compensation carrier an additional right which it does not have under the subrogation statute. The injured party, or the person under whose insurance policy he is defined as an “insured,” has no obligation to his employer’s compensation carrier to carry any automobile liability insurance whatever. In the absence, therefore, of a statute or agreement to the contrary, what can be the source of the compensation carrier’s right to have the benefits of such insurance? The answer, we think, is that there is none.

Id., 550 S.W.2d at 557.

We find no reason now to depart from that opinion. In Samples, we suggested that in appropriate circumstances persons other than the tortfeasor himself may fall within the range of “the other person in whom legal liability for damages exists.” Specifically, we mentioned “the tortfea-sor’s employer, his parents (if he is minor and the parent had signed for his driver’s license), his insurer (if permitted), or anyone else who could be held liable because of the tortfeasor’s negligence.” Samples, 192 S.W.3d at 315. That language refers to persons or entities (or their liability insurer) that under traditional tort law may be vicariously liable for another’s conduct. The UIM carrier’s responsibility to its insured does not arise from any relationship with the tortfeasor; it arises because of a contractual relationship with the tort victim to provide insurance for what the tortfeasor has failed to insure. In providing Appellant’s UIM coverage, KSBA undertook to insure damages owed by the tortfeasor to Appellant in her own right. It did not insure the damages the tortfeasor may owe to her workers’ compensation provider. The assignment of its subrogation rights to Appellant did not expand the UIM carrier’s contractual obligation or expose it to liability that did not exist prior to the assignment. The rights she acquired by taking the assignment are no greater than the rights of her assignor. Because it had no right to recover from the UIM carrier, Appellant had no right to do so. The Court of Appeals opinion in this regard is affirmed.

II. APPELLANT IS NOT ENTITLED TO AN OFFSET AGAINST THE DEDUCTIONS FROM THE JURY VERDICT FOR ATTORNEY’S FEES AND EXPENSES INCURRED IN PURSUING HER CLAIMS

Appellant further claims that the Court of Appeals erred by declining to apply to the facts present here our decision in AIK Selective Self-Insurance Fund v. Minton, 192 S.W.3d 415 (Ky.2006). Appellant notes that based on the contingent fee contract with her counsel, her ultimate recovery will be burdened with attorney’s fees of $30,307.72 and expenses of $4,781.73. Under Minton, attorney’s fees and expenses incurred by the injured worker must be deducted from the workers’ compensation carrier’s subrogation credit, even though doing so may totally subsume the subrogation claim. Minton is based on the portion of KRS 342.700(1) which reads, “If compensation is awarded under this chapter [the workers’ compensation provider] ... may recover ... from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to the injured employee, less the employee’s legal fees and expense.” [Emphasis added]. Appellant would have us interpret Minton so that her attorney’s fees and expenses are offset against the deduction from the jury award for KSBA’s offset for workers’ compensation benefits of $26,826.55 (medical benefits of $26,042 plus wage benefits of $784.55). Notwithstanding the fairness to be found in Appellant’s position, we agree with the Court of Appeals that the rationale for the holding in Minton is guided exclusively by the language of the statute quoted above, and that by its terms the statute is limited to offsetting the recoupment due to the workers’ compensation carrier. We see no authority that would justify the extension of Minton allowing an offset against the UIM provider’s credits for Appellant’s attorney’s fees and expenses.

Accordingly, we affirm the Court of Appeals’ denial of a credit for Appellant’s attorney’s fees and expenses.

III. THE COURT OF APPEALS ERRED REVERSING THE TRIAL COURT’S RULING REGARDING THE DEDUCTION OF BRB FROM THE JUDGMENT

The trial court deducted from the damages awarded by the jury only the $333.45 of BRB actually paid to Appellant, rather than the full amount of $20,000 in available BRB. It is not clear from the record why KSBA, as reparation obligor, paid only $333.45 in BRB, but there is no doubt that a substantial factor was the controversy over whether all of Appellant’s injuries were caused by the bus accident. The jury verdict resolved that issue in Appellant’s favor and found damages in a sum far exceeding the available BRB.

The Court of Appeals held that the judgment must be offset by the entire $20,000.00 in available BRB. Its decision was based upon KRS 304.39-060(2), which provides:

Tort liability with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is “abolished” for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneconomic detriment qualifies under paragraph (b) of this subsection.

Citing several authoritative decisions in support of its interpretation of the statute, the Court of Appeals held that KRS 304.39-060(2) abolishes Appellant’s tort claim to the extent that reparations benefits are “payable therefor.”

The Court of Appeals also concluded Appellant could not avail herself of relief which maybe found in Slone v. Caudill, 734 S.W.2d 480 (Ky.App.1987) and Henson v. Fletcher, 957 S.W.2d 281 (Ky.App.1997) (holding in certain circumstances the judgment should be reduced only by the amount of BRB actually paid rather than the total amount of BRB “payable”), because she had presented “insufficient evidence” of KSBA’s refusal to pay her BRB claims, that she had provided “no evidence” that workers’ compensation had not covered those claims, and had presented no evidence that KSBA had failed to pay BRB after the exhaustion of her workers’ compensation benefits.

Much is made in the arguments of the parties about whether KSBA denied payment of Appellant’s BRB claim and whether Appellant failed to submit claims for coverage. Appellant asserts that she sought payments of additional medical expenses under BRB, but KSBA denied them because of the active issue over whether the injuries she claimed, including the knee replacement surgery, were caused by the bus accident. KSBA contends that Appellant failed to pursue her claim to the maximum available BRB under the KSBA policy. “If the appropriate reparation obligor is not forthcoming in paying basic reparation benefits to the statutory maximum, the injured party has a remedy under the Act to collect them.” Dudas, 652 S.W.2d at 870. See KRS 304.39-210, KRS 304.39-220, and KRS 304.39-160.

If such evidence (i.e., whether Appellant requested payments and whether KSBA denied them) was essential to the factual findings needed to resolve the BRB offset issue, the trial court was the proper place to present it. It is not within the province of this Court, or the Court of Appeals, to resolve factual disputes material to the resolution of a claim. See Whicker v. Whicker, 711 S.W.2d 857 (Ky.App.1986) (Where the trial court fails to make required findings and no request is made for such findings, the issue will not be considered on appeal).

The issue did not arise until KSBA moved under CR 59.05 to amend the judgment to deduct the remaining available BRB. In response, Appellant asserted, that under Slone and Henson, the offset was properly limited to $333.45. Neither party requested the opportunity to present evidence. The trial court denied the motion without an evidentiary hearing and without rendering findings of fact. What the Court of Appeals has characterized as “insufficient proof’ is, in effect, the absence of factual findings by the trial court needed to resolve the issue. Regardless of which party had the burden of proof on the issue of the proper amount of the offset, once the trial court entered its order on that issue with no findings of fact, it became the burden of the party aggrieved by that order to request that the court make a recitation of the essential facts upon which it based its decision. KSBA did not do so. CR 52.04 provides:

A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue.

KSBA’s argument that Appellant cannot rely upon Slone and Henson, depends, in, this Court as in the Court of Appeals, upon a finding of fact that was never made by the trial court — whether Appellant followed the correct process to claim the full measure of BRB available to her. CR 52.04 does not permit the trial court to be reversed for failure to make a finding on an essential fact unless a party has expressly requested such a finding. The Court of Appeals erred in reversing the trial court’s decision on the BRB because of a disputed issue of fact, when the matter was never brought to the attention of the trial court. We therefore reverse the Court of Appeals on that point and reinstate the decision of the trial court to deduct from the judgment the actual BRB payment of $333.45 rather than the full $20,000.00 of available BRB.

CONCLUSION

For the forgoing reasons, we reverse the opinion of the Court of Appeals insofar as it directs the trial court to deduct from the judgment the entire $20,000.00 of available BRB. Otherwise, we affirm the Courts of Appeals in remanding this case to the trial court for recalculation of damages consistent with this opinion.

All sitting. MINTON, C.J., ABRAMSON, CUNNINGHAM, NOBLE and SCHRODER, concur.

SCOTT, J., concurs in result only by separate opinion.

SCOTT, Justice,

concurring in result only opinion:

I concur in the result of the majority’s opinion, but would add as to Issue III, that the amount of any offset is limited to the BRB actually “paid or payable” — meaning it has been, or will be paid. There is no offset for amounts that will not be paid. Such an effect was never the intention of KRS 304.39-060(2). See Slone v. Caudill, 734 S.W.2d 480 (Ky.App.1987); and Henson v. Fletcher, 957 S.W.2d 281 (Ky.App.1997).

      . S. Quarries & Contracting Co. v. Hensley, 313 Ky. 640, 232 S.W.2d 999 (1950); Dillman v. John Diebold & Sons Stone Co., 241 Ky. 631, 44 S.W.2d 581 (1931); Napier v. John P. Gorman Coal Co., 242 Ky. 127, 45 S.W.2d 1064 (1931); Berry v. Irwin, 224 Ky. 565, 6 S.W.2d 705 (1928); Williams v. Brown, 205 Ky. 74, 265 S.W. 480 (1924); Book v. City of Henderson, 176 Ky. 785, 197 S.W. 449 (1917).

      . Three justices dissented, expressing concern that the windfall arising from the failure of the workers' compensation carrier to assert its subrogation rights should not go to the undeserving tortfeasor.

      . State Farm Mat. Auto. Ins. Co. v. Fletcher, 578 S.W.2d 41, 44 (Ky.1979); Dudas v. Kaczmarek, 652 S.W.2d 868 (Ky.App.1983); Bohl v. Consolidated Freightways Corp. of Delaware, 777 S.W.2d 613, 615 (Ky.App.1989);