author: David Newbern, Justice. Robert H. Dudley, Justice, dissenting.

text:
    Billy D. PARKER and Jessie P. Parker, Individually, and as Husband and Wife v. Dana HOLDER
    93-338
    867 S.W.2d 436
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993
    [Rehearing denied January 31, 1994.]

      Lane, Muse, Armand, & Pullen, by: R. Keith Arman, for appellant.

      Wright, Chaney, Berry, & Daniel, P.A., by: Benny M. Tucker, for appellee.
   David Newbern, Justice.

This is an automobile accident liability case. The appellants, Billy and Jessie Parker, appeal from a judgment based on a jury verdict in favor of the appellee, Dana Holder, who was the defendant. They raise two points of error. First, they argue the Trial Court erred in refusing to instruct the jury with respect to Ms. Holder’s duty while driving as stated in Ark. Code Ann. § 27-5 l-201(d) (1987). Second, the Parkers contend the Trial Court erred in applying Ark. R. Evid. 615 and excluding their expert witness, an accident reconstructionist, from the courtroom during the trial. We agree that the Court erred in refusing the proffered instruction, and the judgment is reversed. We address the witness exclusion issue as one which may arise upon retrial.

The Parker and Holder vehicles collided at the intersection of State Highway 84 and a graveled county road. Ms. Holder testified she was traveling west on Highway 84 at 60 to 65 miles per hour and thus in excess of the 55 miles per hour speed limit. The Parkers alleged Ms. Holder was negligent in failing to slow in the curve and in failing to keep a proper lookout. Ms. Holder was cited for speeding, and Ms. Parker was cited for failure to yield. Ms. Holder denied negligence and asserted the Parkers were wholly responsible for the accident. The jury found no liability on the part of Ms. Holder.

1. The proffered instruction

We first note that the jury instructions given in this case were not included in the abstract or the record. In Guarantee Trust Life Ins. Co. v. Koenig, 240 Ark. 650, 401 S.W.2d 216 (1966), the appellant complained that the Trial Court had given erroneous instructions and had improperly refused to give a proffered instruction. The appellee contended the appellant had waived the error by failure to abstract all the instructions given. We referred to Arkansas Supreme Court Rule 9, the predecessor of our current Rule 4-2, and stated:

... if the appellee considers appellant’s abstract of the instructions insufficient and that the alleged error in giving or refusing of an instruction is cured by unabstracted instructions, then “it is the duty of the appellee to point out such other instructions to the Court.”

See also Newberry v. Johnson, 294 Ark. 455, 743 S.W.2d 811 (1988); Williams v. Fletcher, 267 Ark. 961, 644 S.W.2d 946 (Ark. App. 1980) (supplemental opinion on denial of rehearing).

In the Newberry case we said, “While we do not require an appellant to abstract all the instructions given by the court as a predicate to objection on appeal to failure by the trial court to give an instruction proffered by the appellant, we do ... require the appellant to abstract at least the instructions proffered where the basis of appeal is the failure of the trial court to have given them.”

The instruction proffered by the Parkers was based on Arkansas Model Jury Instruction 903 which provides a format for instructing a jury that violation of, in this case, a statute may be evidence of negligence. In refusing the proffered instruction, the Trial Court mentioned that AMI 904 and 907 would “cover it.” AMI 904 deals with using caution when approaching an uncontrolled intersection, and AMI 907, right of way. In a note on use to AMI 904, the Supreme Court Committee on Model Jury Instructions (Civil) states: “This instruction should be followed by AMI 907. It is recommended that this instruction be given in lieu of Ark. Code Ann. § 27-51-501 in the format of AMI 903.”

Apparently the Trial Court chose to do just as the Committee recommends, but we still do not know what the jury was told. Although the Trial Court mentioned he thought AMI 904 and AMI 907 would “cover it,” we cannot tell from the record that either of those instructions was given. It would create a dangerous precedent indeed if we were to give up our insistence that a party relying on appeal upon an instruction supposedly given by the Trial Court include it in the record verbatim. Although AMI 904 and AMI 907 do not, many of the model instructions contain bracketed phrases and sentences which permit variations in usage. Our per curiam order of April 19, 1965, in which we approved the model instruction concept specifically refers to use of non-AMI instructions “when an AMI instruction cannot be modified.” If a party were permitted to omit the verbatim transcription of the instruction given from the record and then simply say that the instruction was given by reference to an AMI number, we would not know what the jury was told. No doubt we could look to the record to affirm in this case if we could see there that AMI 903 would have been incorrect or its necessity obviated by the giving of other instructions. Absent the ability to do so, we must decide whether the giving of the proffered instruction based on AMI 903 would have been proper and whether the refusal to give it prejudiced the Parkers in the absence of any other instruction.

In the words of our ruling in the Guarantee Trust Life Ins. case, “if [Holder] considered] appellant’s abstract of the instructions insufficient and that the alleged error in giving or refusing of an instruction is cured by unabstracted instructions, then ‘it is the duty of [Holder] to point out such other instructions to the Court.’”

Here is the instruction proffered by the Parkers:

THERE WAS IN FORCE IN THE STATE OF ARKANSAS AT THE TIME OF THE OCCURRENCE A STATUTE WHICH PROVIDED: ARK CODE ANNOTATED 27-51-201
Section (d) The driver of every vehicle shall drive at an appropriate reduced speed when approaching an intersection and when approaching and going around a curve and when special hazards exist with respect to other traffic or by reason of highway conditions.
A violation of one or more of these, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case.

As noted above, AMI 903 is designed to allow a court to instruct a jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. The model instruction permits the court to summarize or quote the statute in question. Here the proffered instruction presents a correct statement of the law reflected in the statute. Our longstanding rule has been that it is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982).

Counsel for Ms. Holder objected that the instruction had no application to the case and also had the effect of telling the jury that she had a duty to reduce her speed as she crossed over the bridge when there was no such requirement. We cannot agree with that assertion. While it is true that there was no evidence submitted concerning the actual distance of the curve with the advisory speed limit from the point of impact, there is testimony from which the jury could have concluded that the failure to slow in the curve was a factor contributing to the collision. Also, it was undisputed that the legal speed limit at the intersection where the collision occurred was 55 miles per hour, and the proffered instruction suggests nothing to the contrary. It clearly would require the exercise of caution when approaching an intersection as well as while driving in a curve.

The Court rejected the instruction saying finally:

Well, the testimony in this case — it has no bearing. The testimony in this case by the Defendant is that she slowed for the curve, and that she speeded up after the curve; therefore, that curve is completely out of this intersection, and I believe it would be error to give the instruction as it is written.

The Parkers argue that the failure of Ms. Holder to slow to an appropriate speed in the curve and her excessive speed approaching the intersection were connected and that, therefore, the instruction was supported by the evidence. Their argument also asserts that the Trial Court made erroneous observations concerning the testimony of Holder and the distance of the curve from the intersection.

Various cases are cited in support of the proposition that it is error to refuse an instruction which is supported by the evidence. See, Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226 (1959), and Bonce v. S.R. Thomas Auto Company, 127 Ark. 217, 208 S.W.2d 306 (1949). Rodriquez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989), is also correctly cited for the proposition that one must reduce speed when facing a special hazard. Additionally, Hunter v. McDaniel Const. Co., 274 Ark. 178, 623 S.W.2d 196 (1981), is cited in support of the proposition that it is error for a court to fail to instruct the jury with respect to a statute applicable to the case. Further, Ark. Power & Light v. Dillinger, 188 Ark. 401, 66 S.W.2d 291 (1934), and St. Louis I.M.& S. Railway Co. v. Chamberlin, 150 S.W. 157 (1912), are cited for the proposition that where the degree of danger increases, the degree of care should likewise increase.

Ms. Holder cites Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972), for the proposition that a negligence instruction should not be given where the alleged negligent act is not a proximate or contributing cause of the injury. She argues there was no testimony that the curve or the speed in the curve was a cause contributing to the collision and also cites Hunter v. McDaniel Const. Co., supra, for the statement that it is error to instruct the jury on an inapplicable statute. While there is no direct testimony stating such a conclusion there is conflicting testimony from which the jury could have concluded that her actions connected with the curve were a factor in the collision. One of the last questions asked of Ms. Holder was:

Q: And if you’ve observed the advisory speed sign of 35 miles an hour and slowed down to 35 like the speed sign advised you, do you think the accident would have happened?
A: No.

By this admission Ms. Holder provided an evidentiary basis from which the jury could have concluded the failure to slow as advised in the curve contributed to this accident. It was a disputed fact question which was for the jury to determine.

Ms. Holder also argues the instruction was abstract as defined in the Harkrider case, and Union Nat. Bank of Little Rock v. Daneshvar, 33 Ark. App. 171, 803 S.W.2d 567 (1991), which cites Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531. (1990). Finally she argues that the instruction was covered by AMI 901 which instructed the jury concerning actual or potential hazards and cites Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983), for the proposition that a party is not entitled to repetitious or redundant instructions. Again, we cannot tell from the abstract or record what instructions were given.

Instructions should be based on the evidence in the case, and instructions submitting matters on which there is no evidence or stating only abstract legal propositions should not be given. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Newman v. Crawford Constr. Co., supra. On the other hand, it is error to exclude a requested instruction if there is evidence which supports its utilization. In the Davis case the Court excluded a portion of AMI 501 directing the jury that there may be two or more proximate causes of an injury. We said, “[t]he appellants correctly state that it is error to exclude the second paragraph of AMI 501 when there is evidence that an injury may have resulted from two or more concurrent causes.” We ultimately held the error harmless in light of the comparative fault instruction which was given, but central to the determination of error was our review of the facts and our finding that there was some evidence that the appellee might have participated in causing the wreck, pointing specifically to the testimony of the appellant.

Nor was the proffered instruction abstract. The critical distinction between this case and the opinion in the Hunter case supports this conclusion. In the Hunter case the proffered instruction was characterized as “a compilation of numerous statutory provisions regarding the transportation of trailers.” We concluded, “[s]everal of these sections were inapplicable to the facts presented” and found that the proffered instruction contained mere abstract statements of law.

The seminal case on this very instruction is the Harkrider case. Mr. Cox was passing a truck on a straight stretch of Highway 67 in heavy fog conditions when the collision occurred. The instruction given over his objection referred to an intersection, a curve, a hill crest, and hazards regarding pedestrians, none of which were facts in the case. The instruction was therefore determined to be abstract, and we concluded the Trial Court should have omitted the reference. Here there is testimony concerning the existence of the curve, the existence of the intersection, at least some suggestion of the proximity of the curve to the intersection, the speed at which Ms. Holder was traveling, and the effect of her failure to slow in the curve. These items make the proffered instruction far from abstract.

In the absence of other instructions, the proffered instruction was a correct statement of the law. It was relevant in the circumstances of the case, and it should have been given.

2. Exclusion of the expert

Arkansas Rules of Evidence 615 provides:

Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

The Parkers argue that exclusion of their expert accident reconstructionist was error because he was a person falling into the third category of those not authorized for exclusion. We cannot agree. The expert in this case had prepared his testimony concerning the speed of the Holder vehicle prior to trial based on his review of depositions and other documentary evidence. He testified that the condition of the road surface affected his calculations as to how the accident happened. There was evidence that the road had been resurfaced between the time of the accident and the time he made his calculations. He was forced to admit that his original calculations would be incorrect were the surface not the same at the time he made them as it had been at the time of the accident.

Rulings dealing with the exemptions from this Rule are within a trial court’s discretion. City of Crossett v. Pacific Bldg., Inc., 298 Ark. 520, 769 S.W.2d 730 (1989); Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). We are unable to find any indication that the expert for the Parkers intended initially to base his opinion on the testimony of other witnesses heard in the courtroom.

There was no testimony from other witnesses which could not have been given to Mr. Atkinson in the form of hypotheses for his consideration on the witness stand. He did, in fact, alter his testimony when it was suggested the highway had been resurfaced. In the absence of a showing of some prejudice, the exclusion of the witness was not an abuse of discretion.

As for their argument that Mr. Atkinson was needed for rebuttal of Ms. Holder’s testimony, there was nothing to rebut. Ms. Holder admitted driving in excess of the maximum 55 mile per hour limit at all critical times. She did not deny allegations with respect to the condition of the road or the way the collision occurred. The Trial Court did not err in excluding Mr. Atkinson from the courtroom during the trial.

Reversed and remanded.

Dudley, Corbin, and Brown, JJ., dissent.

Robert H. Dudley, Justice, dissenting.

Perhaps every lawyer who has appealed a case and written a brief pursuant to our rules has envisioned the horror of the appellate court affirming, which in effect dismisses the appeal, on the basis of then Rule 9, now Rule 4-2 of the Rules of the Supreme Court and Court of Appeals. The majority opinion reaches out to make that horror come true in this case; so far out that in reality it misapplies the rule and reverses the trial court because appellee, not appellants, failed to abstract two pattern instructions. The case is being reversed for an alleged error that every member of this court knows did not occur.

Appellants contend that the court erred in refusing to give proffered instruction AMI 903. Appellee responds that it was not necessary to give the proffered instruction because the trial court gave AMI 904 and 907, and, as the trial court ruled, they were sufficient to instruct the jury on the issue. The instructions given are neither abstracted nor in the record. The abstract reflects only that appellants proffered AMI 903. The majority opinion holds that this court will not consider whether the instructions given were sufficient because appellee, not appellants, did not abstract them, and that constitutes a violation of Rule 4-2. The majority opinion cites Guarantee Trust Life Insurance Co. v. Koenig, 240 Ark. 650, 401 S.W.2d 216 (1966), as authority for its holding. I cannot agree.

This case is clearly different from Koenig, and ought to be distinguished from it. In the Koenig case, we said that when an appellee argues that the refusal to give a proffered instruction was cured by other instructions, ‘“it is the dúty of the appellee to point out such other instructions to the court.’” Koenig, 240 Ark. at 653, 401 S.W.2d at 218 (quoting Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S.W.2d 899 (1956)). The other instructions were not pointed out in Koenig. Here, the curative instructions are pointed out. The trial court is quoted as saying, “I think 904 and 907 will cover the fact situation.” There was no discussion about modifying the pattern instructions. Both 904 and 907 are complete model instructions. Neither has alternative sections. There is simply no question about the wording of the two instructions.

The majority opinion provides: “Apparently the Trial Court chose to do just as the Committee [on Model Jury Instructions (Civil)] recommends, but we still do not know what the jury was told. Although the Trial Court mentioned he thought AMI 904 and 907 would ‘cover it,’ we cannot tell from the record that either of these instructions was given.” I agree that the trial court did what the Committee recommends, but cannot agree that we do not know whether the insutructions were given. The jury was given the instructions with the AMI numbers on them. For example, the record reflects that in closing argument defense counsel said, in part:

903 is an instruction which says that—I’m sorry, it’s 901 for any of you that might be listening to me. 901 is the one that says. . . . (Tr. 194)
That’s 907—that instruction number. And 907 says—I’m going to look at it. It says.... (Tr. 201)
603 says. . . . (Tr. 204)

Appellee states that AMI 904 and 907 were given and the trial court followed the Committee’s recommendation in refusing 903. Appellants do not dispute that 904 and 907 were given. In summary, the trial court said it was going to give 904 and 907; the record reflects that appellee made arguments that were based on the trial court’s having given the model instructions; appellee argues that they were given; and appellants do not dispute the fact they were given. Every member of this court knows that AMI 904 and 907 were given just as the model instructions provide. It is unfair not to consider the instructions on the ground that this court does not know whether the instructions were given, and it is a misapplication of Rule 4-2 to so hold. This case is clearly distinguishable from Koenig, supra.

Corbin and Brown, JJ., join in this dissent.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    WHEELER MOTOR COMPANY, INC. v. Richard ROTH and Carolyn Fontneau, Husband and Wife
    93-496
    867 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      Smith Law Firm, by: Truman H. Smith, for appellant.

      .Lingle & Corley, by: James G. Lingle and Ella A. Maxwell, for appellees.
   Donald L. Corbin, Justice.

Appellant, Wheeler Motor Company, Inc., appeals a judgment of the Washington Circuit Court awarding $18,000.00 in damages to appellees, Richard Roth and Carolyn Fontneau. The jury’s award included $8,000.00 in damages for rightful revocation, representing payment of the cost of the automobile, and $10,000.00 in punitive damages. For reversal, appellant argues the jury’s findings that (1) appellant deceived appellee, (2) appellee rightfully revoked acceptance, and (3) both restitution and punitive damages were warranted are not supported by substantial evidence.

. After the jury entered its verdict, appellant filed post-trial motions seeking a new trial or in the alternative judgment notwithstanding the verdict. Appellees filed post-trial motions seeking attorney’s fees and prejudgment interest. The trial court denied all these post-trial motions. It is from these rulings that each party appeals. The judgment is affirmed.

Appellees purchased a 1988 Volkswagen Fox GL from appellant on October 2, 1989. The vehicle was the last 1988 model on hand. At purchase, the price was $8,000.00, down from the $9,813.00 sticker price. It is undisputed that appellees were the first owners of the vehicle, but the car had been test driven 590 miles. The key ring submitted into evidence indicated that the car was “new” as did the sales contract. Within the first two weeks after purchase, the right front tire developed an “aneurysm,” and the steel belt burst through the tread. Other problems developed during the 23 months appellees drove the car. Each was repaired by appellant. The right front fender was found to have a crack in it, and the right headlight became loose. Noise emitted from the right front suspension. The right speaker blew out. Other mechanical problems existed shortly after buying the car from appellant, and these problems persisted throughout its use. Appellees asserted that they purchased the car believing it was undamaged and that this misrepresentation constituted deceit and breach of warranty.

A copy of the sales order reflected only that a crack in the paint approximately two inches long existed on the tip of the left front fender. This was noted on the sales order after appellees examined the exterior of the car. No other damage is explained or evidenced in this document.

The testimony diverges as to whether appellees were informed of the prior damage to the right front of the car during a demonstration drive prior to purchase. Appellant maintains appellees were made aware of the prior damage to the right front of the vehicle. Appellees denied they were made aware of this fact.

I. DIRECT APPEAL

We observe that a motion for a directed verdict is a condition precedent to moving for a judgment notwithstanding the verdict. ARCP Rule 50(b). A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence. Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981).

In each of the substantive arguments asserted by appellant, it states the lower court erred in refusing to grant a directed verdict and abused its discretion in not granting a new trial or judgment notwithstanding the verdict asserting lack of substantial evidence with regard to deceit, revocation of acceptance, and the award of punitive damages.

It is a well-settled rule that this court will affirm sufficiency of the evidence cases if there is “any substantial evidence to support a jury’s verdict.” Boyd v. Reddick, 264 Ark. 671, 675, 573 S.W.2d 634, 637 (1978). In determining whether substantial evidence exists, we have stated that we will rely upon two crucial principles to avoid invading the province of the jury. First, the court will consider only the evidence favorable to the successful party below, and second, the court will defer to the jury’s resolution of the issue unless we can say that there is no reasonable probability to support the version of the successful party below. Love v. H.F. Constr. Co., 261 Ark. 831, 552 S.W.2d 15 (1977).

A. Deceit

Appellant argues that there was no false representation and that appellees were aware of the prior damage to the car before they purchased it. Appellant maintains that this was the reason for the lowered selling price. Appellees argue that appellant never mentioned any prior collision.

Deceit consists of five elements which must be proven by a preponderance of the evidence: (1) a false representation of a material fact, (2) knowledge that the representation.is false or that there is insufficient evidence upon which to make the representation, (3) intent to induce action or inaction in reliance upon the representation, (4) justifiable reliance, and (5) damage suffered as a result of that reliance. Nicholson v. Century 21 Ivy Realty Inc., 307 Ark. 161, 818 S.W.2d 254 (1991). In cases of deceit the credibility of the witnesses is vital in determining liability, and the trier of fact is the sole judge of credibility and the weight and value attributed to evidence. Id.

In a case similar to the present one, a car buyer testified as to the salesman’s representations and stated that he believed the salesman, relied on his statements, and expressed the importance that there was no damage to the frame in his purchase of the car. Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989). This court found sufficient reliance by the buyer in Lancaster to support a claim for deceit.

In this case the jury heard and observed the witnesses, judged their credibility, and weighed the evidence submitted. Appellees testified that they would never have purchased the car had they known it had been wrecked. The jury apparently did not deem appellant’s testimony credible. We should state here that when evidence is disputed, a motion for judgment notwithstanding the verdict should be refused. Lancaster, 299 Ark. 365, 772 S.W.2d 349. As the evidence was disputed in the instant case, we could end our discussion here. However, even beyond that statement and considering the evidence presented, we cannot say substantial evidence does not exist to support the judgment finding deceit.

B. Revocation of Acceptance

Appellant argues there was not substantial evidence to support the jury’s finding that appellees rightfully revoked acceptance of the car. We must recognize that the attorneys and court below used the terms “revocation” and “rescission” interchangeably. Though rescission of a contract is an equitable remedy, the right of restitution after rescission can be and has been asserted along with allegations of breach of warranty and the tort of deceit under the jurisdiction of circuit court. Walt Bennett Ford, Inc. v. Smith, 314 Ark. 591, 864 S.W.2d 817 (1993); Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). An award of restitution for valid revocation in addition to punitive damages is acceptable if the elements of the tort of deceit are proven. “With the contemporary concern chiefly to avoid duplicated remedies, some courts have flatly said that restitution and punitive damages should be permitted.” Dan B. Dobbs, Law of Remedies, § 9.4 (2d ed. 1993) citing Thomas Auto, 297 Ark. 492, 763 S.W.2d 651.

Ark. Code Ann. § 4-2-608 (1987) explains revocation of acceptance:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; • or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

Appellees drove this car just under two years when on August 16, 1991, they attempted to revoke acceptance of the car and return the vehicle by a letter sent from their attorney to the dealership. This letter was precipitated by appellees’ discovering that the paint on the front was not original and subsequently learning that the car had been in a collision. Their discovery came in the summer of 1991 when paint came off after visiting a car wash, revealing primer which was not Volkswagen primer. Appellees testified that this was a substantial impairment to the value of the car since they would not have purchased the car if they had known it had been wrecked. Appellees then contacted their attorney to revoke acceptance and obtain a refund of the purchase price. The pertinent language of the August 16, 1991 letter is as follows:

THIS LETTER IS A SERVICE NOTICE TO YOU THAT THE “RETAIL INSTALLMENT CONTRACT” DATED 02 OCTOBER 1989 BETWEEN MY CLIENTS AND WHEELER MOTOR COMPANY, INC. IS HEREBY RESCINDED.
The 1988 Volkswagen Fox which you sold to them was sold as a new vehicle. The vehicle was not in fact new, and had previously been wrecked and repainted. As you know, they have [had] nothing but trouble with the car since it’s [sic] purchase.
They hereby tender the vehicle back to you. They will deliver it to your lot or wherever you request. I ask that you provide me with instructions as to the time and place of delivery. They will make no further payments on the contract, and all payments made under the contract.

The thrust of appellant’s argument is that they informed appellees of the prior damage and that appellees, in effect, “sat” on this information to the detriment of appellant. Revocation of acceptance must occur within a reasonable time after discovering the grounds for revocation. A “reasonable time” depends upon the nature, purposes, and circumstances of the action or inaction. Hughes v. Brown, 1 Ark. App. 171, 613 S.W.2d 848 (1981). What constitutes a non-conforming delivery and what constitutes a reasonable time within which to revoke acceptance depends upon the facts of the case, and this will not be disturbed if substantial evidence exists. Frontier Mobile Homes Sales, Inc. v. Trigleth, 256 Ark. 101, 505 S.W.2d 516 (1974). The jury found appellees more credible. Viewing the testimony in the light most favorable to appellees, we cannot say the jury’s verdict is not supported by substantial evidence.

C. Punitive Damages

Lastly appellant argues that it was error to award punitive damages to appellee, or that in the alternative there was not substantial evidence to support the award of punitive damages. We disagree. We have held that punitive or exemplary damages are proper when “there is an intentional violation of another’s right to his property.” Stein v. Lukas, 308 Ark. 74, 77, 823 S.W.2d 832, 834 (1992). Further this court has held that punitive damages are available in cases of misrepresentation or deceit. Id..; see also Walt Bennett v. Smith, 314 Ark. 591, 864 S.W.2d 817 (1993); Thomas Auto, 297 Ark. 492, 763 S.W.2d 651. One must be determined to have acted wantonly causing injury or acted with conscious indifference to the consequences such that malice may be inferred; Id.

The purpose of punitive damages is to deter and punish the wrongdoer. One cannot recover punitive damages if the sole cause of action is based in contract. However, one should not be prevented from receiving punitive damages in a contract action where the basis of revocation or rescission is conduct constituting the tort of deceit. Punitive damages are available in a deceit action even if restitution rather than compensatory damages is awarded. Thomas Auto, 297 Ark. 492, 763 S.W.2d 651. In the instant case, the instruction on revocation of acceptance stated that recovery for revocation of acceptance would be the purchase price, and this restitutionary award was given.

We clearly stated in Thomas:

We can think of no reason why punitive damages should not accompany a restitutionary award if there is proof of the elements of deceit as a basis of revocation of acceptance or extrajudicial rescission. The purpose of punitive damages is deterrence and punishment of wrongdoing.

Id. at 498, 763 S.W.2d at 654. The $10,000.00 in punitive damages was awarded to deter or punish wrongful conduct, here, deceit. Since the jury found that appellant had deceived appellees, we cannot say the jury’s award of punitive damages was improper.

Finally, appellant argues in its brief that the award of punitive damages was grossly excessive and was the result of passion on the part of the jury. We find no merit in this argument. When considering such a question, we must decide whether the award of damages is so great as to shock our conscience. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). When considering the amount of punitive damages and its purpose to deter, the following language was deemed instructive in the Ray Dodge case and is instructive here as well:

The amount of actual damages sustained by a plaintiff is one indication of the culpability of the defendant’s acts, but it cannot be the sole criterion for the assessment of punitive damages. Also relevant is the prospective deterrent effect of such an award upon persons situated similarly to the defendant, the motives actuating the defendant’s conduct, the degree of calculation involved in the defendant’s conduct, and the extent of the defendant’s disregard of the rights of others. These are legitimate concerns of the law, and the application of any fixed arithmetic ratio to all cases in which punitive damages are assessed would be arbitrary.

Id. at 1046, 479 S.W.2d at 524 (citing Boise Dodge, Inc. v. Clark, 453 P.2d 551 (Idaho 1969)). To deter such business enterprises from deceiving consumers in the future, we cannot say that $10,000.00, in addition to the price of the car, $8,000.00, shocks our conscience.

II. Cross Appeal

A. Attorney’s Fees

In enumerated civil actions attorney’s fees may be awarded. Ark. Code Ann. § 16-22-308 (Supp.’ 1989). The pertinent language in the statute is as follows:

In any civil action to recover on . . . contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

(Emphasis added.) The award of attorney’s fees is permissive and falls within the discretion of the trial court. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Absent abuse of discretion the trial court should be upheld. When the prevailing party’s claim is based in tort, an award of attorney’s fees cannot be justified under section 16-22-308. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993). This case was submitted to the jury on alternate theories, both contract and tort. Special interrogatories were submitted. The jury instruction with regard to revocation of acceptance authorized an award in the amount of the purchase price. The jury instruction with regard to breach of contract set damages as the difference between the value of the car as warranted and the value of the car as received. Because the jury gave appellees an award in the amount of the purchase price, it must have based its award on restitution for revocation. This rests in tort. The jury obviously found deceit which formed the basis of revocation and the restitutionary award. We cannot say the trial judge erred in declining to award attorney’s fees. See Stein, 308 Ark. 74, 823 S.W.2d 832.

B. Prejudgment Interest

The trial judge denied prejudgment interest based upon a determination that the damages were inexact and uncertain at the time of the loss. Damages were not ascertainable until the jury rendered its special verdict awarding restitution and punitive damages. The judgment was clearly tort based. We recognize that if damages cannot be ascertained at the time of the loss, prejudgment interest should not be allowed. City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991).

To award prejudgment interest and punitive damages would offend our historical reluctance to award prejudgment interest in tort cases because the damages were not ascertainable as to time and amount. See e.g. Members Mut. Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W.2d 429 (1973); Southern Farm Bureau Casualty Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W.2d 153 (1961). We cannot say the trial court erred in denying prejudgment interest.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Gary DAVIS and Corporate Insurance Services, Inc. v. WAUSAU INSURANCE COMPANIES
    93-593
    867 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      Laser, Sharp, Wilson, Bufford, & Watts, P.A., by: David M.

      Donovan, for appellants.

      Anderson & Kilpatrick, by: Joseph E. Kilpatrick, Jr. and Mariam T. Hopkins, for appellee.
   Robert L. Brown, Justice.

This case involves multiple parties and multiple issues. The appellants, Gary Davis and Corporate Insurance Services, Inc., appeal one facet of the litigation — a dismissal of their third-party complaint brought against the appellee, Wausau Insurance Companies — and urge that we resolve the issue of workers’ compensation insurance before the balance of the litigation moves forward. We do not reach the merits of this appeal because the judgment of the trial court is not in compliance with Ark. R. Civ. P. 54(b).

Randall Taylor worked as a logging contractor from 1973 until 1991. What follows are the allegations in his complaint in this matter. In 1990, Taylor was advised to incorporate his business and to purchase workers’ compensation insurance through T & K Wood Dealers, Inc. based on his business relationship with that company. Gary Davis, an agent with Corporate Insurance Services, advanced this approach. On June 30, 1991, T & K Wood Dealers told Taylor that he could no longer obtain workers’ compensation coverage in such a manner. Gary Davis, however, informed him that the same coverage would continue at the same cost. On September 19, 1991, Taylor was seriously injured in a logging accident. He notified Davis and T & K Wood Dealers of his injury. The carrier, Wausau Insurance Companies, first paid benefits but then it terminated payments. On November 14, 1991, Wausau informed Taylor that no additional benefits would be forthcoming.

Taylor sued T & K Wood Dealers, Davis, and Corporate Insurance Services for fraud, tortious interference with a business interest, breach of implied covenant, of good faith and fair dealing, and outrage and alleged that the defendants caused him to be uninsured. Davis and Corporate Insurance answered but also filed a third-party complaint against Wausau, alleging 1) Wausau was obligated to pay the benefits, and 2) Wausau was liable to Davis and Corporate Services for indemnity and contribution.

Wausau moved to dismiss the third-party complaint under Ark. R. Civ. P. 12(b), and the motion was granted. Davis and Corporate Insurance Services determined to appeal the dismissal and filed a Motion for Interlocutory Appeal which was stated to be pursuant to.Ark. R. Civ. P. 54(b). The trial court entered judgment granting the motion. The court stated that the judgment against Davis and Corporate Insurance Services was final and directed entry of that judgment. It further included a statement that “there is no just reason for delay” regarding the appeal. No supporting factual findings, as required by Rule 54(b), accompanied the trial court’s certification.

Ordinarily, an order granting a motion to dismiss to one party to a lawsuit, which involves multiple parties and multiple claims, is not an appealable order. Arkansas Dep’t of Human Serv. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992); Sherman v. G & H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985). An appeal from such an order, however, is permissible under Rule 54(b) when the trial court directs the entry of a final judgment as to one or more of the claims or parties and makes express findings that there is no just reason to delay the appeal. Wallner v. McDonald, 308 Ark. 590, 825 S.W.2d 265 (1992). In order to determine that there is no just reason for delay, the trial court must find that a likelihood of hardship or injustice will occur unless there is an immediate appeal and must set forth facts to support its conclusion. Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993); Wallner v. McDonald, supra; Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). That factual underpinnings supporting a Rule 54(b) certification may exist in the record is not enough. They must be set out in the trial court’s order. Franklin v. OSCA, Inc., supra.

In the case before us, the judgment granting the motion for interlocutory appeal does not include specific findings of any danger of hardship or injustice which could be alleviated by an immediate appeal. Nor does the judgment detail facts which establish that' such a hardship or injustice is likely. Due to this noncompliance with Rule 54(b), we dismiss this appeal without prejudice to refile it at a later date.

We observe, in addition, where Davis and Corporate Insurance Services styled this as an interlocutory appeal. Our rules do provide for certain interlocutory appeals defined as those “permitted by statute or by the Arkansas Rules of Appellate Procedure, the Arkansas Rules of Civil Procedure, or the Arkansas Rules of Criminal Procedure.” Ark. Sup. Ct. R. l-2(a)(12). A Rule 54(b) certification does not fall within any of those categories. Hence, an independent basis for jurisdiction in this court under our supreme court rule is lacking.

Appeal dismissed.

Glaze, J., not participating.


author: Robert L. Brown, Justice. Robert L. Brown, Justice.

text:
    The WISE COMPANY, Inc., A Corporation v. CLAY CIRCUIT, Eastern District, Hon. Olan Parker, Jr., Judge
    93-296
    869 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993
    [Supplemental Opinion on Denial of Rehearing January 24, 1994.J

      McDonnell Boyd, by: Donald R. Wellford and Sloan, Rubens & Peeples, by: Kent J. Rubens, for petitioner.

      Kelley Webb and Bill Bristow, P.A., for respondents.
   Robert L. Brown, Justice.

This is a request for a writ of prohibition to prevent the Clay County Circuit Court from exercising jurisdiction over a matter alleged to be within the exclusive jurisdiction of the Arkansas Workers’ Compensation Commission. The petitioner, The Wise Corporation, is a Memphis-based corporation with plants located in Piggott and Rector. The corporation makes seats for boats. Mike Yon was the plant manager of the Piggott plant between 1986 and 1989 and commuted between the Piggott and Rector plants and acted as plant manager of both, beginning in 1989.

On October 2, 1991, four former employees of the Piggott plant — Joyce Burr, Della O’Dell, Denise Foster, and Nellie Butler —filed individual causes of action in a single complaint against Mike Yon and The Wise Corporation and asserted wrongful discharge as well as joint and several liability against the two defendants for the intentional infliction of emotional distress. The four women alleged that Mike Yon was abusive, demeaning, vulgar, and defamatory toward them, which rendered working conditions intolerable, and that he directed his abuse particularly toward women. Later, they filed an amended complaint, adding Linda Graves, also a former employee at the Piggott plant, as a plaintiff, who made similar allegations against the defendants and added an allegation of sexual harassment. All five plaintiffs prayed for compensatory and punitive damages.

The Wise Corporation filed a motion to dismiss the plaintiffs’ complaint under Ark. R. Civ. P. 12(b)(6) for failure to state facts upon which relief could be granted and stated in support of the motion that the plaintiffs’ claims were exclusively covered by the Arkansas Workers’ Compensation Act. The plaintiffs responded and attached supporting affidavits to their response. The Wise Corporation subsequently took the plaintiffs’ depositions which the corporation submitted to the circuit judge in support of its motion to dismiss. The circuit court then treated the motion to dismiss as a motion for summary judgment, as provided under Ark. R. Civ. P. 12(b), and concluded that the affidavits and depositions raised a jury question. The motion was denied.

Rather than proceed to trial, The Wise Corporation next filed its petition for writ of prohibition in this court on grounds that subject matter jurisdiction in this case exclusively lies in the Workers’ Compensation Commission. It included the affidavits and depositions of the plaintiffs as part of the record accompanying the petition and abstracted them for our consideration. In addition, both in the briefs and at oral argument counsel for the corporation invited our review of the affidavits and depositions in our deliberations on the merits of prohibition.

It is axiomatic that in deciding whether prohibition will lie, we confine our review to the pleadings. Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990); Springdale School Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981). Yet, here, The Wise Corporation urges us to go beyond the pleadings and has presented us with considerable factual information to weigh. Should we do as requested, we would be abandoning a cornerstone principle that in examining petitions for writ of prohibition, we limit our consideration of jurisdiction to the pleadings. We would also be treating a prohibition action much the same as a motion for summary judgment and accepting proof from the parties in support of respective positions. This we refuse to do.

Hence, what is before us in this petition for writ of prohibition is for all intents and purposes precisely what the trial court had before it on summary judgment. The affidavits and depositions of the plaintiffs are the same. And The Wise Corporation makes the same legal arguments. Though clothed in different raiment, the petition is essentially an appeal from a denial of a motion for summary judgment. We look to the substance of a pleading, not to its form. See, e.g., Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 157 (1987). And we reiterate once more that we will not review denials of motions for summary judgment. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

It might be argued that irrespective of the manner in which The Wise Corporation has submitted this petition, we should as an alternative limit our consideration to the pleadings and reach the question of jurisdiction. But that is not the form in which the corporation submitted this matter to us, and it would be unfair for us to review the case in a different posture than that submitted when the plaintiffs have not had an opportunity to argue the merits of jurisdiction solely in the context of their complaints. For that reason, we refrain from doing so.

McDonnell Boyd, by: Donald R. Wellford; and Sloan, Rubens & Peeples, by: Kent J. Rubens, for appellant.

Bill W. Bristow, P.A., and Kelley Webb, for appellee.

Writ denied.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JANUARY 24, 1994

Petition for Rehearing denied.

Robert L. Brown, Justice.

The Wise Company contends on rehearing that the decision in this case denying the writ of prohibition disregards Arkansas authority to the contrary. The corporation further argues that this court has reviewed petitions for writs of prohibition following a denial of summary judgment in the past and should do so in this case. It cites as authority Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993); Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987).

We repeat our longstanding rule that in prohibition cases we are limited to a consideration of the pleadings, not the proof, in determining whether jurisdiction in the trial court is appropriate. We have made this abundantly clear. See, e.g., Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990); see also Ark. Sup. Ct. R. 6-l(a). A trial judge must know from the pleadings, not from evidence subsequently offered, whether a case is appropriately in that court. In Hill v. Patterson, supra, though a denial of summary judgment preceded the prohibition petition, we considered only the allegations in the pleadings in reaching our decision.

Fore v. Circuit Court of Izard, County, supra, does contain dictum to the effect that the petition for writ of prohibition was comparable to an appeal from a summary judgment denial under the circumstances of that case. What is less clear in Fore is whether we limited ourselves to the pleadings in determining whether the matter rested exclusively with the Workers’ Compensation Commission. In the wake of Fore, this court has clearly distanced itself from the overreaching language in that decision. See Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). To the extent that Fore can still be read to sanction writs of prohibition based on information outside of the pleadings, such as affidavits and depositions, it is an aberration in our caselaw, and we overrule it.

The Wise Company requested that we go beyond the pleadings in deciding its petition for writ of prohibition and consider affidavits and depositions filed in connection with the original motion before the trial court and the response. We were invited, in effect, to treat the petition as an appeal from a denial of summary judgment. We emphasize once more that we will not do this. In prohibition matters, we are limited to the pleadings in testing jurisdiction.

The petition for rehearing is denied.


author: Per Curiam.

text:
    Jennings OSBORNE and Mitzi Osborne v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fisher, and Catherine Cockrill
    93-1303
    866 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered December 14, 1993

      Robert C. Lowry, and The Perroni Law Firm, P.A., by: Samuel A. Perroni, for appellants.

      Gary D. Corum, for appellees.
   Per Curiam.

Appellants have filed motions to suspend an injunction imposed upon appellants by the trial court, or in the alternative, to stay its order of abatement and to accelerate this case on appeal. In their motion, appellants correctly point out, in considering their request for relief, a determination must be made concerning their likelihood of success on appeal. Although appellants have promptly filed a partial record with this court, only seventy-one pages of the transcription of the trial has been lodged with this court’s clerk. In addition, that partial transcript reflects the trial judge may still enter an amended order with further findings of fact. At the same hearing, the judge indicated she had not had the opportunity to write things out and could have been clearer when ruling on the issues.

In cautioning counsel regarding an appeal, she previously had stated that, if counsel thinks the judge had said enough for the appellate court to tell the basis for her decision, she had no problem with entering an order that the trial court finds that a nuisance exists and it should be abated. However, the judge concluded she was still willing to consider any other order that either party would wish to submit.

In short, while counsel and the trial judge attempted to expedite filing an appeal, the record filed is simply not sufficient to consider the legal issues presented or the relief sought. From our reading of the partial record submitted, the order entered and appealed from may or may not be final. Clearly, the partial transcript submitted is insufficient for this court to rule, even preliminarily, that the trial court’s decision was erroneous and that appellants are likely to succeed on appeal. When the complete record in this case is properly before the court and both appellants and appellees have had an opportunity to brief and argue this matter, the court will take this case under submission and render its decision.

For these reasons, we deny appellants’ motions.

Brown, J., not participating.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Toby James COX v. Harold McLAUGHLIN, Reliable Truck Brokers, Inc., d/b/a Champion Transportation Services, Inc.
    93-540
    867 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994]

      John Wesley Hall, Jr., P.A., for appellant.

      Cypert, Crouch, Clark & Howell, by: James E. Crouch, for appellee.
   Robert H. Dudley, Justice.

Plaintiff sued defendants for breach of contract and malicious prosecution. Defendants moved for summary judgment on both counts. The trial court granted the motion. Plaintiff appeals. We reverse and remand on both counts.

In March 1990, Toby James Cox, plaintiff, was the driver of a truck that was owned by his father, Floyd Cox, and was leased to Westport Trucking Company. Harold McLaughlin, defendant, was employed by Reliable Truck Brokers, Inc., which did business as Champion Transportation Services, Inc. Defendant Champion was a brokerage company that contacted motor carriers and arranged for the transportation of cargo for various shippers. Champion contracted with Westport Trucking to haul a load of Alpo Pet Food from a factory in Crete, Nebraska to a Sam’s Wholesale Club in Houston, Texas. The load was to be picked up on March 13 and delivered to Sam’s on March 15 or 16. Plaintiff picked up the load in Nebraska on the date scheduled, March 13, and hauled it to Trenton, Texas, when, on March 15, he learned that a check from Westport Trucking to his father had been returned for insufficient funds. He phoned Westport Trucking and was told that the company was without funds, could not pay for hauling the load currently aboard the trailer, and could not pay other amounts that were past due to plaintiff’s father. Plaintiff refused to haul the load the rest of the way to Houston without being paid. Plaintiff testified that on that same day, the 15th, he phoned Terry Lafarlette, a broker for defendant Champion, and told him of his predicament. He stated that Lafarlette told him he would have to get his money from Westport Trucking. On Friday, March 16, Champion was informed, apparently by Sam’s, that the load might not have been delivered as scheduled. On Monday, the 19th, Champion confirmed the fact that the load had not been delivered to Sam’s. Champion called Westport Trucking, and got a description of the tractor, trailer, license number, and plaintiff’s driver’s license number.

Defendant McLaughlin testified that defendant Champion did not want to lose its valuable brokerage account with Alpo Pet Foods. Champion realized it owed money to Westport Trucking for other loads and that it might offset some of the money that it owed to Westport Trucking by paying plaintiff. In the meantime, plaintiff determined that Westport owed his father about $4,300 for hauling, including the load currently aboard. On the 20th, defendant McLaughlin, on behalf of defendant Champion, reached an agreement with plaintiff by which Champion would pay $4,200 to plaintiff if plaintiff would go ahead and deliver the load to Sam’s. Champion paid $2,100 to plaintiff at that time. The parties disagree about when the other $2,100 was to be paid. Plaintiff says it was due when he got to Houston, and Champion says it was due when the load was delivered to Sam’s. Plaintiff got to Sam’s on March 22, five days after the originally scheduled date, and Sam’s rejected the load. Champion then arranged for plaintiff to unload the dog food at another warehouse. Plaintiff called Champion from that warehouse and asked for the remaining $2,100. Champion refused to pay, and plaintiff refused to unload. Immediately afterwards, an employee of the warehouse told defendant McLaughlin that plaintiff had left the warehouse with the load. Defendant McLaughlin phoned the cargo theft department of the Houston Police and told a policeman that plaintiff had just left the warehouse with his customer’s load. The same day, defendant McLaughlin, a resident of Washington County, contacted the office of the Prosecuting Attorney in Washington County and executed an affidavit. As a result, the plaintiff was charged with “Fraud in the acquisition of authorization to provide vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (1987). Meanwhile, plaintiff hauled the load back to his home in Trenton, Texas. There is no evidence indicating that plaintiff attempted to remove any of the load from the trailer. Plaintiff was arrested in Texas on the Washington County felony charge. Ultimately, the Prosecuting Attorney was granted leave to nolle prosse the charge.

Plaintiff then filed this suit for breach of contract and malicious prosecution. The trial court granted the motion for summary judgment on the contract count on the ground that plaintiff had a pre-existing duty to deliver the load to Houston, and thus, there was a failure of consideration for the subsequent agreement with defendant Champion. The trial court alternatively held the contract was made under duress. The trial court granted summary judgment on the malicious prosecution count on the grounds that probable cause existed for the felony charge as a matter of law and alternatively on the ground that defendants McLaughlin and Champion relied on the advice of the Prosecuting Attorney.

The standard of review in these cases is well settled. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be resolved. If there is any doubt as to whether there are issues to be tried, the motion should be denied. In this case the defendants, as the moving parties, bore the burden of showing that there were no genuine issues of material fact. Plaintiff is entitled to have all doubts and inferences resolved in his favor, and summary judgment is not proper if reasonable minds could reach different conclusions when given the facts. Tullock v. Eck, 311 Ark. 564, 785 S.W.2d 31 (1993).

Plaintiff contends the trial court erred in granting summary judgment on the breach of contract count because there is a dispute of a material fact about the failure of consideration, and there is also an issue of material fact concerning duress. We first address the failure of consideration. Defendants contend that plaintiff, as an agent, was already bound by contract with West-port Trucking to deliver the load to Sam’s in Houston, and therefore, the subsequent agreement with plaintiff was without consideration. The matter is clearly in dispute. The lease contract between plaintiff’s father, Floyd Cox, and Westport Trucking provides that “Lessor [Floyd Cox], his drivers, and/or helpers, are not the agents, employees, or servants of Lessee.” Plaintiff was one of lessor’s “drivers.” Even if the plaintiff might be called Westport Trucking’s agent, the law is well established that an agent is not liable to a third party for a contractual obligation made by a disclosed principal unless the agent is specifically named in the contract and there is evidence of his intent to be bound. Schultze v. Price, 213 Ark. 732, 213 S.W.2d 365 (1948).

The proof submitted showed that plaintiff could have been released from his obligation to drive the load to Houston because of a failure of consideration on the part of Westport Trucking, or it might amount to anticipatory repudiation. It is true that, as a general rule, when a party performs an obligation under a pre-existing contract, the law will regard his demand for additional benefits as void for failure of consideration. See 3 Samuel Williston, A Treatise on the Law of Contracts § 7:36 at 569 (4th ed. 1992). However, we have held that the failure of one party to perform can excuse the other from his obligation, Stocker v. Hall, 269 Ark. 468, 472, 602 S.W.2d 662, 665 (1980), and, we recognize that, when a party to a contract has, either by words or conduct, definitely manifested an intention not to perform, the other party may treat the contract as ended. Stocker, supra; Spencer Machine Co. v. Hall, 78 Ark. 336, 93 S.W. 985 (1906). Thus, the proof submitted contains facts by which reasonable minds might conclude that plaintiff was not under a preexisting duty to deliver the load and therefore was free to negotiate a new contract with defendants. Further, the facts are clearly in dispute as to whether the agreement was breached since plaintiff states that he was to be paid when he delivered the load to the warehouse, and defendants respond that plaintiff was to be paid only after the pet food was unloaded.

The trial court also held that the contract between plaintiff and defendants was entered under duress. Again, reasonable minds could reach different conclusions on the facts proved. In order to establish duress that will justify voiding a contract, a party must show that he involuntarily accepted the terms of the opposing party, that the circumstances permitted no other alternative, and that the circumstances resulted from coercive acts by the opposing party. W.R. Grimshaw Co. v. Mevil C. Winthrow Co. 248 F.2d 896 (8th Cir. 1957), cert. denied, 356 U.S. 912 (1958); see also Oberstein v. Oberstein, 217 Ark. 80, 228 S.W.2d 615 (1950). Economic duress is generally recognized as a valid excuse for voiding a contract. See Restatement (Second) of Contracts, Topic 2, Introductory Note at 473-74; see also § 176. However, the party alleging duress must show more than a reluctance to accept the contract and the possibility of financial embarrassment. Grimshaw, 248 F.2d at 904, see also Rodgers v. Lyon, 256 Ark. 323, 507 S.W.2d 95 (1974). He must show that the duress resulted from the other party’s wrongful and oppressive conduct, and not by his own necessity. Id. In addition, he must show that the wrongful conduct deprived him of his own, free will and volition. Id.

We have no case in point, but, in a case similar to the one at bar, the Supreme Court of Alaska wrote:

Economic duress does not exist, however, merely because a person has been a victim of a wrongful act; in addition the victim must have no choice but to agree to the other party’s terms or face serious financial hardship. Thus, in order to avoid a contract, a party must also show that he had no reasonable alternative to agreeing to the other party’s terms, or as it is often stated, that he had ho adequate remedy if the threat were carried out. (Citations omitted). What constitutes a reasonable alternative is a question of fact, depending on the circumstances of each case. . . . Generally, it has been said that “[t]he adequacy of the remedy is to be tested by a practical standard which takes into consideration the exigencies of the situation in which the alleged victim finds himself.” (Citation omitted).

Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline, 584 P. 2d 15, 22 (Alaska 1978) (emphasis added).

We adopt the above standard, and under it and under our standard for review of summary judgment, there are several factors which cause us to reverse. Viewing the facts most favorably against the moving party, there is (1) a dispute about who initiated the contract between plaintiff and defendant Champion, and if Champion initiated the contract it would tend to indicate it was not the victim of a wrongful act; (2) there was proof that defendant Champion might lose its brokerage account with Alpo Pet Foods, but no showing of what serious financial hardship, if any, would result if Champion had not negotiated with plaintiff; (3) there was proof that defendant Champion’s employee, defendant McLaughlin, was under a “pressure cooker situation” but no showing that other remedies would be inadequate; and (4) there was a possible dispute about whether plaintiff’s actions were “wrongful,” but this is not of great significance as wrongful actions by a defendant do not by themselves constitute duress. Grimshaw, supra. Accordingly, the trial court erred in granting summary judgment on the breach of contract count.

The trial court also granted summary judgment of the claim for malicious prosecution. In Farm Service Coop. v. Goshen Farms, 267 Ark. 324, 332, 590 S.W.2d 861, 865 (1979), we set out the elements to be proven in an action for malicious prosecution as: (1) a proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the plaintiff, (3) absence of probable cause for the proceedings, (4) malice on the part of the defendant, (5) damages. The trial court ruled that the defendants “did not lack probable cause because a person of ordinary caution would believe that a crime had been committed.”

In the context of malicious prosecution, probable cause means such a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Cordes v. Outdoor Living Ctr., Inc. 301 Ark. 26, 781 S.W.2d 31 (1989). This issue may be decided as a matter of law on summary judgment only if both the facts relied upon to create probable cause and the reasonable inferences to be drawn from the facts are undisputed. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1987).

Plaintiff was charged with “Fraud in acquisition of authorization to provide motor vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (1987). That statute, which is a part of the section on forgery and fraudulent practices, provides in the part material to this case that a person commits fraud in the acquisition of authorization to transport property if, by phone, he acquires the authorization to haul property and thereafter, either (1) fails to deliver the property as agreed “with the intent to defraud the owner or shipper of the goods,” or (2) appropriates the property to his own use.

In order to determine whether summary judgment should have been granted on the issue of malicious prosecution, it is necessary to examine the pleadings, depositions, and exhibits to see if reasonable minds could differ over whether the facts presented therein would cause an ordinarily cautious person to believe fraud had been committed. See Township Buildings, Inc. v. Kraus Constr. Co., 286 Ark 487, 696 S.W.2d 308 (1985). We have defined ordinary caution as “a standard of reasonableness which presents an issue for the jury when the proof is in dispute or subject to different interpretations.” Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 640, 846 S.W.2d 176, 178 (1993).

There is no dispute that plaintiff had acquired the authorization to transport this property before the defendants employed him to continue on to Houston. In fact, in the contract count of this case, the defendants argue that their contract was without consideration because plaintiff was already bound to deliver the dog food to Sam’s. An ordinarily cautious person simply would not believe that plaintiff was guilty of fraud in the initial acquisition of authorization to transport the load from Crete to Houston. In addition, there is no real dispute that plaintiff, over the phone, told defendant McLaughlin that Westport Transportation owed his father and him around $4,300, and that he would not continue on to Sam’s unless he was paid. There is some evidence that plaintiff asked for less than this amount originally, and then increased the amount of his request. However, defendant McLaughlin testified that it would be “worth it” to him to pay $4,200, because the Alpo Pet Food account was valuable to him, and that he and plaintiff came to a “gentleman’s agreement” that plaintiff would be paid $2,100 before he left for Houston, and another $2,100 after the load was delivered to Sam’s. Defendant McLaughlin said he would minimize his losses in this way, and the arrangement would prevent jeopardizing the Alpo account. Plaintiff agrees with McLaughlin’s statement, except he contends that he was to be paid the second $2,100 when he arrived in Houston. He testified that he asked that the money be paid at that time because he and his father had so much trouble collecting from Westport Trucking. McLaughlin admitted that he knew about plaintiff’s difficulties in collecting from Westport Transportation when he made the agreement with plaintiff. In sum, one might argue that plaintiff sought a ransom to continue on the trip, but it cannot be said that an ordinarily cautious person might believe the plaintiff was guilty of the crime of “fraud in acquisition of authorization to provide motor vehicle transportation of property” at the time of contracting with the defendants.

Subsection (b) of the statute provides that one commits fraud in the acquisition of authorization if he fails to deliver the load according to the contract “with the intent to defraud the owner or shipper of the goods.” There is disputed testimony about the time it was agreed that plaintiff was to have the load in Houston, but all parties agree that plaintiff delivered the load but Sam’s refused to accept it. They agree plaintiff then went to the warehouse and that he left after defendant refused to pay any more money. Plaintiff contends that defendant McLaughlin offered him $1,000, or less than the agreed amount, to leave the load at the warehouse. Defendant McLaughlin contends that plaintiff demanded more than the agreed upon $2,100 before he would unload. There is no evidence whatsoever to indicate that any of the load was taken off the trailer. There are several significant disputed facts and several disputable inferences in the sequence of events, but, as we have written, the issue may be decided as a matter of law on summary judgment only if both the facts relied upon to create probable cause and the reasonable inferences to be drawn from the facts are undisputed. Yarbrough, 284 Ark. at 348, 681 S.W.2d at 362. There are too many conclusions to be reached from the facts and inferences for the trial court to grant summary judgment because defendants “did not lack probable cause.”

Even when there is an absence of probable cause, it is a complete defense to a malicious prosecution action if it is found that the defendant made a full and fair disclosure of all of the facts to the prosecutor, and the prosecutor then gave advice, and the defendant acted in good faith on the advice. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). In this case, reasonable minds could differ on whether defendant McLaughlin omitted giving the deputy prosecutor some of the material information. It is important that defendant McLaughlin failed to tell the prosecutor that he initiated the agreement to pay plaintiff. He only told the prosecutor that plaintiff refused to deliver the load unless defendant Champion paid him $4,300. Next, McLaughlin’s testimony taken on motion for summary judgment about the time frame of the events and plaintiff’s additional demands for monéy are inconsistent with the deputy prosecutor’s record of what McLaughlin told her. The prosecutor’s record reflects that defendant McLaughlin did not supply the prosecutor with all of the material dates, but instead told her that “Cox was to deliver the load to Sam’s Wholesale in Houston two weeks ago tomorrow. The load was located day before yesterday in Trenton, Texas.” In fact, even after the delay during the period of negotiation, the load was only six days late on the date defendant McLaughlin signed the affidavit, and the length of delay in delivering the load is a critical fact in determining whether the plaintiff had the intent to defraud the owner of it. Defendant McLaughlin in his deposition on the motion for summary judgment stated that plaintiff demanded $300 or $400 more for taking the load to the warehouse, after leaving Sam’s. The deputy prosecutor’s record shows that he told her that plaintiff demanded “$2,800 additional dollars to unload” at the warehouse. In sum, a jury could conclude that defendant McLaughlin did not fairly or accurately lay out the facts, but concealed some and inflated and embellished on others. Where there is a conflict about whether there was a complete and fair disclosure of all material facts known to the person complaining to the prosecutor, and where there is direct evidence that he did not make a complete and fair disclosure, the issue of this defense should go to the jury. Culpepper, 302 Ark. at 565, 792 S.W.2d at 294 (1990)..

Reversed and remanded.

Hays and Brown, JL, dissent.

Steele Hays, Justice,

dissenting. For a number of reasons, I believe the trial court’s order of summary judgment was correct and should be affirmed.

On the issue of malicious prosecution, the law requires malice and a lack of probable cause. Rogers v. General Electric Company, 341 F. Supp. 971 (1972); Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). As to malice, there is not the slightest evidence that the appellees acted from an ulterior motive or in furtherance of malice or rancor. The only motivation suggested by the evidence before the trial court is that appellees sought only the timely delivery of the cargo to the customer, Sam’s Wholesale, and even agreed to pay $4,300 owed by Westport to the appellant (an amount five times greater than the $800 charge for delivery) in order to bring that about. When they learned that appellant had driven away from the JoMar Warehouse without delivering the cargo as promised, they acted as any reasonable person would — they consulted their attorney and, on his advice, reported the problem to the prosecuting attorney. Thus, the actions of the appellees when faced with a dilemma not of their making was entirely appropriate and neither irresponsible nor spiteful.

Second, there can be no serious question as to the existence of probable cause to suspect that appellant had committed a crime. Gazzola v. New, 191 Ark. 724, 87 S.W.2d 268 (1935). That was the opinion of the Houston police, of appellees attorney and of the deputy prosecuting attorney. The majority concludes that an ordinarily cautious person would not believe Cox was guilty of fraud in the initial acquisition of the cargo, citing Ark. Code Ann. § 5-37-524 (1987). Of course, that was the charge brought by the prosecutor and not attributable to the appellees. Beyond that, there are two fallacies — first, whether appellant had a specific intent to withhold the cargo when he first acquired the goods, is not conclusive, as the statute makes it a violation if the accused “fails to deliver the products in the time and manner prescribed by the contract, with the intent to defraud the owner or shipper of the goods.” Too, the majority maintains that appellant did not learn that the $209 check had bounced until after the cargo was in his possession, and thus he could have had no fraudulent intent. But there was evidence that the check had been previously presented and payment refused by the bank. If appellant’s state of mind were crucial, of far greater importance is the fact that appellant admittedly knew that Westport owed his father approximately $4,000, and it was payment of this amount, not the mere $209, which appellant was demanding.

But whether appellant had a specific intent to defraud when he acquired the goods for shipment is beside the point, as it can hardly be denied that when he refused to deliver cargo that he was legally bound to deliver [See Car Transportation v. Garden Spot District, 305 Ark. 82, 805 S.W.2d 632 (1998)], he subjected himself to the likelihood of prosecution. Whether the particular offense was fraud in the acquisition, or theft by bailee, or extortion, or yet another offense, the party aggrieved by that conduct had, I submit, every right to consult legal advice from private and public counsel and to act in accordance with that advice. There has been no showing in this case that appellees did anything other than that.

A third element of malicious prosecution is the requirement that appellant’s prosecution was at the insistence of the defendant. Rogers v. General Electric, supra. Here it is shown simply that appellees consulted the prosecutor and reported the facts with reasonable accuracy, with no indication that they demanded prosecution.

Finally, even if probable cause was lacking, this court has held from the earliest that it is a complete defense to an action for malicious prosecution if the defendant initiated the prosecution on the advice of a prosecutor or an attorney knowledgeable in the law. Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931); Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911); Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913). The testimony of the prosecutor renders that question beyond dispute, as well as the contention that the discrepancy as to the length of time appellant held the goods:

As far as I can recall and based upon my investigation subsequent to the filing of charges, nothing told to me or my office by Harold McLaughlin or Terry Lafarlette was materially inaccurate or misleading. I now understand, however, that the statement that the load was supposed “to be delivered two weeks ago” is wrong and that it was only six days late. This played no part in my decision to prosecute, as the important facts were Toby Cox was alleged to have retained a load which did not belong to him and would not release it unless someone paid him money.

Turning to the breach of contract claim, I disagree that conduct plainly intended to coerce one party to pay a sizeable sum it does not owe or risk losing a valued customer, can rise to the level of a “contract.” The approximate cost of transporting this cargo from Nebraska to Houston was $800, yet appellant refused to complete the delivery until appellees agreed to pay $4,300 owed by Westport to his father. Since appellant could not legally have refused to deliver even against Westport, [see Car Transport v. Garden Spot Dist., supra,] he certainly could not have done so against appellees.The theory that an anticipatory breach occurred which enabled appellant to negotiate a new agreement overlooks the fact that appellee Champion did not break its contract with Westport, the carrier, in any manner. The breach in this case occurred because of the wrongful acts of the appellant and in that context appellant cannot maintain that he is entitled to enforce a coerced agreement to pay $4,300, five times the cost of the carriage. DeSoto Life Insurance Co. v. Jeffett, 210 Ark. 371, 196 S.W.2d 243 (1946).

For the reasons stated, I respectfully dissent.

Brown, J., joins.


author: Robert H. Dudley, Justice.

text:
    MAUMELLE BOULEVARD WATER AND SEWER DISTRICT NO. 1 of North Little Rock, Arkansas, Joined by Its Commissioners, Keith Wingfield, Will Elder and O. L. Holland v. Jeff DAVIS, Jr., and Cleo H. Davis
    93-506
    868 S.W.2d 73
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      Simpson & Graham, P.A., by: Gregory B. Graham and Lynda M. Johnson, for appellants. ■

      Perry V Whitmore, for appellees.

      Brown, I, not participating

   Robert H. Dudley, Justice.

Jeff Davis, Jr. and Cleo H. Davis, appellees, are the owners of 63.5 acres located on Maumelle Boulevard in North Little Rock. They held the land for development and sale as commercial and industrial sites, but needed water and sewer services before they could successfully market it. Consequently, appellees Jeff and Cleo Davis and other landowners formed appellant Maumelle Boulevard Water and Sewer District No. 1 of North Little Rock, a municipal improvement district, to provide sewer and water services to the property located within the district. Appellee Jeff Davis, Jr. was the initial chairman of the district’s commission. In 1988, the district published its assessment of benefits as required by statute, and those assessments were approved without objection. The district issued bonds, and the proceeds from the sale of these bonds were used to construct sewer and water lines within the district. A special improvement tax was imposed upon the assessments, and appellees paid, without protest, the first year’s tax in early 1989.

After appellant district had assessed the benefits and the Davises had paid the first year’s tax levy, the Davises were informed by the United States Army Corps of Engineers that substantial parts of their property were “wetlands” that were subject to regulation by the federal government. Pursuant to federal regulations, the Davises were not allowed to further develop the property unless they obtained a delineation of the extent of the wetlands and a use permit from the Corps. Since that time, the Davises have refused to pay their annual tax levies and have requested that their assessment be reduced because their property is in a wetlands area. Their request was rejected by appellant district and its current commissioners, appellants Keith Wingfield, Will Elder, and O.L. Holland, because the reduction would have caused the total assessed benefits of the district to fall below the original amount of assessments pledged as security for the bonds. The Davises brought this action in chancery court and asked to (1) have all assessments against their property declared void because of demonstrable error, (2) have a declaration that no taxes were due against the property, (3) have a refund of the 1988 taxes paid, (4) enjoin future assessments and taxes until the Corps of Engineers gives them a use permit, and (5) restrain appellant district from foreclosing on the property for past due taxes. Appellants answered, and appellant district counterclaimed to foreclose for delinquent taxes. The State First National Bank of Texarkana, as trustee of the bond issue, was only a nominal party. Upon trial, the chancellor granted to the Davises all the relief asked and denied the counterclaim for foreclosure. The district and the commissioners appeal. We hold that the chancellor erred in finding error in the assessment, in finding there was a material physical change in the lands, in finding an unconstitutional taking of the Davises property, and in dismissing the district’s counterclaim. As a result, we reverse and remand for foreclosure proceedings.

I.

Appellant district first argues that the chancellor erred in finding demonstrable error in the assessment of benefits and the levy of taxes. The argument is well taken.

The assessment of benefits of a municipal improvement district can be attacked directly or, in limited circumstances, collaterally. A municipal improvement district is a creature of statute, and, as such, modifications in its assessments of benefits are governed by statute. In order to directly attack an assessment of benefits, a property owner must institute an action to correct or invalidate the assessment within thirty days of its publication. Ark. Code Ann. § 14-90-804(a) (1987); see Davidson v. Sewer Improvement Dist., 182 Ark. 741, 32 S.W.2d 1062 (1930). If the property owner does not institute an action to correct the assessment within that time, “all objections to . . . the validity of the assessment shall be forever barred and precluded.” Ark. Code Ann. § 14-90-804(b) (1987). It is undisputed that the Davis-. es did not file a direct attack in this case within thirty days of the publication of the assessment. Accordingly, they are barred from directly attacking the assessment of benefits.

An improvement district’s assessment of benefits is subject to collateral attack, after the period for direct attack has run, in certain limited circumstances. See Paving Dists. Nos. 2 & 3 v. Baker, 171 Ark. 692, 694, 286 S.W. 945, 946 (1926). A collateral attack can prevail only in the event the property owner can show that there was fraud or demonstrable error in the original assessment of the benefits. Carney v. Walbe, 175 Ark. 746, 300 S.W. 413 (1927). The Davises did not allege fraud. Rather, they alleged demonstrable error, and the chancellor found that demonstrable error existed in this case. We have said that, after the expiration of the period for direct attack, a court can only set aside the assessment “when it appears on its face to be obviously and demonstrably erroneous.” Paving Dists. Nos. 2 & 3 v. Baker, 171 Ark. 692, 694, 286 S.W.2d 945, 946 (1926) (citing Board of Improvement v. Pollard, 98 Ark. 543, 136 S.W. 957 (1911)). In Portis v. Ballard, 175 Ark. 834, 837, 1 S.W.2d 1, 2 (1927), we said:

“[Demonstrable mistake” is such a mistake as can be shown only on the face of the record of the proceedings creating the district or assessing the benefits. Extraneous testimony, such as that of engineers and others, tending to prove that certain portions of the territory embraced in the district could not and would not be benefitted by the improvements contemplated, is not relevant and competent on collateral attack.

The chancellor, over the district’s objection, admitted substantial extraneous evidence about the “wetlands” that did not appear on the face of the proceedings creating the district or assessing the benefits, and this was the evidence used as the basis for finding demonstrable error. The error in the admission of the evidence is clearly shown in the chancellor’s following finding of fact:

The plaintiffs [Davises] and all involved in the improvement district did not know that at least much of the plaintiffs’ land was “wetlands,” not subject to development. Each of the parties made a mistake as to what use the land could be put. This mistake or demonstrable error lead to the mistaken assessment of benefits and improper levy of taxes on plaintiffs’ property.

The chancellor candidly admitted that he chose not to follow the statutory and case law, but stated that it was his belief he was doing equity. Without question, the bondholders would argue that the chancellor was not doing equity as their bonds would lose value if the Davises and the other wetland owners were excused from paying the taxes that, in turn, pay the interest and retire the bonds. But equities as perceived by the chancellor are not the issue; the issue is whether the chancellor was bound to follow the applicable statutes and our cases construing those statutes. The answer is clear. It is well established that a court of equity must follow the law whenever the rights of the parties are clearly defined and established by the law. Beebe Sch. Dist. v. National Supply Co., 280 Ark. 340, 344, 658 S.W.2d 372, 374 (1983). Consequently, the chancellor erred in going outside of the face of the record of the proceedings that created the district to find extraneous evidence of demonstrable error in the assessment of benefits on collateral attack.

II.

The district and its commissioners next argue that the chancellor erred in finding a “material physical change” in the property. Again, the argument has merit. Under section 14-90-602 of the Arkansas Code Annotated of 1987, assessments may be revised by an improvement district on an annual basis, either by increasing or diminishing the assessment against a particular piece of property as justice may require. We have held that assessments cannot be increased or diminished except for some physical change that occurs in the property after the original assessment. Street Improvement Dist. No. 74 v. Goslee, 183 Ark. 539, 36 S.W.2d 960 (1931). A material physical change is a basis upon which a property owner may obtain, by direct action, a reassessment of benefits for future periods. See Sugarloaf Dev. Co., Inc. v. Heber Springs Improvement Dist., 34 Ark. App. 28, 805 S.W.2d 88 (1991); Paving Dist. No. 2 v. Johnson, 186 Ark. 1033, 57 S.W.2d 558 (1933); Benton v. Nowlin, 187 Ark. 738, 62 S.W.2d 16 (1933); Street Improvement Dist. No. 74 v. Goslee, 183 Ark. 539, 36 S.W.2d 960 (1931); Missouri & N. Ark. Ry. Co. v. Little Red River Levee Dist., 172 Ark. 792, 290 S.W. 363 (1927). Here, the chancellor found that the Corps of Engineers’ regulation concerning development of “wetlands” was a-material physical change in the property, even though he also found the regulation was in effect before the original assessment of benefits. Even if the regulation were “material” and “physical,” it was in effect before the original assessment and therefore was not a change that occurred after the original assessment. See Johnson, 186 Ark. at 1035, 57 S.W.2d at 559. Consequently, the ruling retroactively allowing relief for the taxes already paid was in error. In addition, one cannot recover taxes voluntarily paid. City of Little Rock v. Cash, 277 Ark. 494, 503, 644 S.W.2d 229, cert. denied, 462 U.S. 1111 (1982).

The chancellor also gave relief from paying future taxes because of the material physical change. We need not decide whether the chancellor was correct in ruling that the regulation caused the property to change materially and physically, but we note that our case law was developed in contemplation of actual physical changes that might occur after the initial assessment of benefits. For example, a tract with a large expensive building might be assessed at a high figure, but if that building burned and was not rebuilt, the landowner would be entitled to a lower reassessment for future, but not past, taxes. But in this case, there was no change because the regulation was in effect before the assessment. In addition, even if there might have been a physical and material change, the chancellor’s ruling diminished the total amount of benefits that were assessed, and “the total amount of benefits shall never be diminished if the district shall have borrowed money or incurred indebtedness.” Ark. Code Ann. § 14-90-602(a) (1987). Since money had been borrowed, the chancellor erred in giving relief that diminished the total amount of benefits.

III.

The chancellor also ruled that the assessment placed against the Davises’ property exceeded its current value and therefore constituted an unconstitutional taking of property. The district contends the ruling was also in error, and, again, the argument has merit. The Davises mistakenly thought the land was more valuable than it was because they did not know the federal wetlands regulations applied to their land. The land did not have water or sewer lines, and the Davises helped form the improvement district as a method of getting water lines and sewers to their land. They thought the benefits to their land were fairly assessed, and as a result, they did not object to the valuation. The assessment is the basis for the levy of taxes which in turn pays for the construction of water lines and sewers. The district borrowed the money from bondholders to pay for building the improvements. The improvements were completed. The Davises then learned that the wetlands regulation applies to their land, but they are still required to pay their fair share of the taxes that in turn pay their share of the debt for the construction of the water lines and sewers to their property. The fact that they made a mistake in valuing their property and consequently in failing to object to that assessment does not make this a governmental taking. See French v. Barber Asphalt Paving Co., 181 U.S. 324 (1901). The right of the property owner to make a direct attack on the assessment satisfies the Due Process requirements of the Constitution. Portis v. Ballard, 175 Ark. 834, 1 S.W.2d 1 (1927).

IV.

The chancellor erred in voiding the assessment of benefits and levy of taxes by the district for the reasons set out above and, correspondingly, erred in dismissing the counterclaim of the district asking for foreclosure as a result of the Davises’ failure to pay the annual assessments and for applicable statutory penalties and interest on delinquent assessments. While we prefer to decide all issues on the de novo review of chancery cases in order to terminate the litigation and prevent piecemeal litigation, we do remand chancery court cases when the record is not sufficient for us to determine some particular issue. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). On the record in this case we cannot determine the amount of penalties and interest on delinquent assessments, and we remand for the chancery court to determine those issues and to order foreclosure if the taxes, penalty, and interest are not paid.

Reversed and remanded for proceedings consistent with this opinion.

Brown, J., not participating.