author: Robert L. Brown, Justice.

text:
    STATE AUTO PROPERTY and CASUALTY INSURANCE COMPANY v. Larry and Drenda SWAIM
    99-17
    991 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Hardin, Jesson, & Terry, by: J. Rodney Mills, for appellant.

      Baker & Jnekins, PLLC, by: Rinda Baker, for appellee.
   Robert L. Brown, Justice.

This appeal involves a claim to pay insurance benefits under a homeowner’s policy issued by appellant State Auto Property and Casualty Insurance Company (State Auto). The complaint was filed by the appellees Larry and Drenda Swaim, who are the insureds, and relief was sought for breach of contract and the tort of bad faith. The jury returned a verdict in favor of the Swaims on both counts. State Auto now raises several points for reversal. We affirm the judgment for damages relating to breach of contract but reverse the judgment for bad faith. We affirm the award of attorney’s fees.

On April 21, 1996, the Swaims’ home in Van Burén was damaged by a tornado. At the time, they had a homeowners insurance policy with State Auto which was sold to them by Bob Miller Insurance Agency. The policy covered damage and losses to the building and personal property and specifically provided for replacement costs. Three days after the tornado, State Auto sent adjusters to the Swaims’ home and issued a $2,500 advance check to the couple. Adjuster Greg Miller then calculated the initial losses to be $34,230.89, and the Swaims agreed to this figure. On May 2, 1996, State Auto paid the Swaims $31,730.89 (the agreed losses to date less the $2,500 advance check and a $250 deductible) and issued a check for $1,500 for contents losses. On June 19, 1996, State Auto issued another check in the amount of $3,971.72 for contents losses. These payments total $39,702.61.

At the end ofjune 1996, the Swaims discovered further damage to their home and contents. They made additional claims to State Auto for $32,299.68, which included damage to the brick on the house, the overhead cabinets in the kitchen, the attic insulation, the cabinets surrounding the fireplace, the fireplace itself, the patio (which was cracked), appliances, countertops, and sheet rock in the kitchen, windows that needed repainting, and repairs approved by the insurance company and performed but not paid. State Auto sent another adjuster, Martin Brown, to handle these items. On October 9, 1996, Brown determined that $19,892.80 was an appropriate amount to pay the Swaims for these claims. The balance of the amount claimed was denied because in State Auto’s judgment some of the items were not covered under the policy, some of the repairs were not necessary, and other damaged items were not available for inspection.

On October 31, 1996, the Swaims filed a lawsuit against State Auto and Bob Miller Insurance Agency, alleging breach of contract and bad faith. They prayed for $31,226.65 in compensatory damages, $50,000 in punitive damages, and their costs and attorney’s fees. In 1998, the matter was tried to a jury, which awarded the Swaims by special verdict $28,500 for breach of contract and $4,000 for bad faith. The trial court then awarded the Swaims $10,000 for attorney’s fees pursuant to Ark. Code Ann. § 16-22-308, following an oral motion for fees by the Swaims’ attorney after the trial. There was no award for punitive damages, and no verdict or judgment was taken against Bob Miller Insurance Agency.

I. Breach of Contract

When the plaintiffs rested, State Auto moved for a directed verdict on the breach-of-contract claim and argued that the Swaims had failed to prove entitlement to additional contents losses and had failed to furnish written estimates as required by the policy. The trial court denied the motion and did so again when the motion was renewed at the close of all the proof. After the verdict, State Auto moved for a judgment notwithstanding the verdict, asserting that the plaintiffs failed to produce sufficient evidence of breach of contract. The trial court denied this motion also.

When reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. See Dodson v. Charter Behavioral Health Sys., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998); Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. See City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. See Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).

Using this standard, we consider the evidence supporting the Swaims’ claim in the light most favorable to the Swaims. The Swaims submitted claims for additional damages of $32,299.68 in June 1996, all of which directly related to damage caused by the tornado. Drenda Swaim testified that they did everything that was asked of them, that all of her claims were made in writing, and that only adjuster Martin Brown requested additional information from her, which she promptly provided. She also testified that adjuster Bob Miller told her to discard many items of personal property and purchase new ones. Bob Miller testified that his son told the Swaims to get their estimates together and hold them because State Auto only wanted to issue one more check. The jury was clearly free to believe Ms. Swaim and disbelieve Mr. Miller regarding compliance with the policy’s documentation requirements.

The property that was disposed of, which State Auto claims it had a right to inspect, was personal property, which included a garbage disposal, a dining room light fixture, the contents in the refrigerator, a refrigerator, ladies clothing, electric cook top and range hood, surround sound speakers, oak medicine cabinet, and a JVC cassette tape deck. Ms. Swaim testified that “[w]e were told by Bob Miller that that [inspection] would not be necessary, under the circumstances, they would not have time to look at every item, and just go ahead and get rid of it.” She also explained why she either discarded or replaced each item, and why some of her initial estimates were inaccurate. The jury was free to assess her credibility and believe her explanations. See Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997); Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794 (1996).

State Auto conceded that all the repairs were valid except for the ones discussed above (fireplace cabinets, kitchen sheet rock, kitchen cabinet, window painting, and attic insulation). Ms. Swaim testified that water had poured through the roof onto the attic insulation. Curtis Henderson, the contractor, testified that the insulation was wet when he was working at the home. Ms. Swaim also testified, along with Charles Swaim, her father-in-law, that the bookshelves alongside the fireplace pulled away from the wall. The problem with the kitchen cabinet, according to the Swaims, was that there was a gap at the corner where the cabinets met. The adjuster, Martin Brown, testified that it was possible that this could have resulted from a tornado if there were some kind of movement of the framing structure or that it could have resulted from moisture. Again, the jury believed the Swaims and not State Auto’s adjuster in concluding that these repairs were necessary.

The final repair issue regards the sheet rock in the kitchen, which was initially repaired and paid for by State Auto. After the first repairs, a water stain was still visible as well as the repair patch itself. Curtis Henderson testified that the adjuster first told him to use a stain block on it but that the Swaims were unhappy with the repair because it did not cover the stain. He testified that this was a legitimate reason to redo the work. We do not read State Auto’s policy as foreclosing the correction of defective repairs.

In sum, the evidence supporting the Swaims’ breach-of-contract claim was substantial. We affirm the judgment on this point.

II. Bad Faith

State Auto also moved for a directed verdict on the Swaims’ bad faith claim. The carrier argued that the tort was not proved because it had merely failed to pay the claim when the Swaims wanted payment. The trial court denied this motion because, in the court’s words, there was a “scintilla of evidence” of bad faith for the issue to be submitted to the jury.

Again, we review the denial of a directed-verdict motion using a substantial evidence standard. See Dodson v. Charter Behavioral Health Sys., Inc., supra. An insurance company commits the tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. See Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); R.J. “Bob”Jones Excavating Contractor, Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996); Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). We have defined “bad faith” as dishonest, malicious, or oppressive conduct carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge. See AMI 407; see also Affiliated Foods Southwest, Inc. v. Moran, 322 Ark. 808, 912 S.W.2d 8 (1995); American Health Care Providers, Inc. v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994). Mere negligence or bad judgment is insufficient so long as the insurer is acting in good faith. See Stevenson v. Union Std. Ins. Co., 294 Ark. 651, 746 S.W.2d 39 (1988). The tort of bad faith does not arise from a mere denial of a claim; there must be affirmative misconduct. See Parker v. Southern Farm Bureau Cas. Ins. Co., supra.

As before, we consider the evidence in favor of the Swaims. Drenda Swaim testified that at least five different adjusters were sent to their home in the first three months after the tornado. She stated that State Auto kept giving them the “runaround” and dragging everything out. Larry Swaim testified that Bob Miller told him that several different adjusters were being used because State Auto believed the earlier ones had assessed the damages too highly. Additionally, both Swaims testified that Miller told them to throw away certain personal property, but State Auto then asked to inspect the items and refused to pay for them when they could not be produced. Ms. Swaim also testified that State Auto had lied to her about when the claims would be paid. For example, when the check for $3,971.22 was issued for contents losses, the adjuster stated in his report that “[a]fter you have replaced the items, please forward the receipts and we will pay you for the difference, not to exceed the $1,884.55 withheld.”

In short, the Swaims’ theory of bad faith was premised on State Auto’s method of operation in utilizing a series of adjusters until getting the desired result in order to reduce the amount of the claim and engaging in other conduct designed to limit the company’s liability and delay payment. On cross-examination Drenda Swaim explained the basis for her cause of action in this manner:

Q. You’ve also alleged, or you discussed with Mr. Baker that you felt State Auto had acted in bad faith, the way they handled this claim, is that primarily attributable to the fact, that it’s taken awhile to resolve this matter?
A. Yes. They just gave us the runaround, keep (sic) giving us different adjustors, and it took so long to do anything.
Q. When you say taken so long to get an adjustor, that applies, [it] took awhile for State Farm to get to your house, but you told us, earlier, the adjustor was at your house a week after the tornado?
A. Well, on May 15, we got a letter from the man and he said he’d get an adjustor to our house for additional damages, and it took until — well, a month or two.
Q. That would be when Mr. Brown became involved in the case?
A. Yes, sir.
Q. You say that’s for additional damages? State Auto has resolved the issue and paid you for dwelling damages and content damages up to that point, am I correct?
A. Well, I’m going on estimates, that we hadn’t actually received, that’s what they thought was fair.
Q. I believe you told me in your deposition that State Auto never made any false representations or statements to you concerning coverage, is that still your testimony, today?
A. It just wasn’t cleared for us to work on it.
Q. That’s really the basis of your bad faith claim, am I right?
A. Yes.

We are initially confronted with the fact that the trial court used the wrong standard in denying State Auto’s directed-verdict motion on bad faith. The standard that should have been employed was whether the Swaims had presented substantial evidence of a bad faith violation. The trial court, however, determined that there was a “scintilla” of evidence and submitted the issue to the jury on that basis. A scintilla or trace of evidence is far less than substantial evidence. Had the trial court used the correct standard, it may well have granted the motion.

But turning to the merits, this court has held on several occasions that a mistake on an insurance carrier’s part or negligence or confusion or bad judgment will not suffice to substantiate the tort of bad faith. See, e.g., Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996); Parker v. Southern Farm Bureau Ins. Co., supra; Affiliated Foods Southwest, Inc. v. Moran, supra. For example, we have held that nightmarish red tape, an abrupt attitude evidenced by an insurance representative about higher premium costs following cancellation of a group policy, and confusion over the referral process did not amount to bad faith. See American Health Care Providers v. O’Brien, supra. Nor did the fact that an insurance company waited three months to investigate a claim. See Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993).

Examples of cases where we have found substantial evidence of bad faith include where an insurance agent lied by stating there was no insurance coverage (Southern Farm v. Allen, supra); aggressive, abusive, and coercive conduct by a claims representative, which included conversion of the insured’s wrecked car; (Viking Insurance Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992)); and where a carrier intentionally altered insurance records to avoid a bad risk (Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984)).

In the instant case, we first note that State Auto approved $19,892.80 in additional claims on October 9, 1996, and the Swaims sued for $31,226.65 for breach of contract three weeks later. The jury, however, did not award the Swaims the full value of their claim but awarded damages of only $28,500 for breach of contract, which lends some credence to the argument that the claims legitimately were in dispute. Moreover, the fact that State Auto dragged its feet in paying claims and disputed other claims may have warranted a twelve percent penalty and attorney’s fees under § 23-79-208, but it does not constitute substantial evidence of bad faith. Nor does the fact that State Auto had multiple adjusters. Probably the most troublesome allegation in this case is that State Auto would not pay certain claims on personal property after the Swaims had discarded the property on recommendation of an earlier adjuster. We view this conduct, though, as evidence of confusion caused by different claims adjusters and not evidence of a state of mind characterized by hatred, ill will, or a spirit of revenge. See American Health Care Providers, Inc. v. O’Brien, supra.

The trial court erred in refusing to direct a verdict on this count. We reverse the judgment as it relates to bad faith and dismiss.

III. Other Points for Reversal

Because we have reversed the judgment with respect to bad faith, we need not address State Auto’s other points regarding that claim.

As for the other arguments mounted by State Auto relating to the judgment for breach of contract, we find no basis for reversing the denial of State Auto’s motion JNOV for reasons already stated. Nor do we agree that the verdict and judgment are clearly against the preponderance of the evidence so as to warrant a new trial under Ark. R. Civ. P. 59(a)(6).

State Auto does contend that it was error for the trial court to allow the Swaims to amend their pleadings to conform to the proof under Ark. R. Civ. P. 15(b), when the loss claims had not all been presented to State Auto. We do not agree with State Auto’s premise. Drenda Swaim testified that all losses were presented to State Auto adjusters, and we have no reason to discard her testimony. We are also mindful of the fact that the jury’s damage award for breach of contract ($28,500) was less than the amount either claimed by the Swaims ($31,226.65) or proven at trial ($32,299.68). This point does not merit reversal.

IV. Attorney’s Fees

Following the verdict in this case, the Swaims asked for their attorney’s fees. There was no written motion. The court awarded them $10,000 pursuant to Ark. Code Ann. § 16-22-308 (1987) and included that amount and the statutory reference in the judgment entered. State Auto then moved to set aside the attorney’s fees, and the Swaims responded. The trial court denied the motion to set aside.

State Auto first argues that the attorney’s fee award was improper to the extent it can be attributed to the tort of bad faith. This argument is meritless. The trial court specifically made reference to § 16-22-308 in its judgment, and that statute includes an award of fees for breach of contract and not for torts.

State Auto also contends that the attorney’s fee award did not comply with Ark. R. Civ. P. 54(e). This rules provides in part:

(e)(1) Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought.

It is clear to us that Rule 54(e)(1) does not require a written motion. This subsection is followed by Rule 54(e)(2) which states that a motion must be filed “unless otherwise provided ... by order of the court.” Thus, we conclude that the fact that the Swaims’ motion was oral is not fatal to the fees awarded under the rule. We further conclude that the judgment of the court specifically found that $10,000 in attorney’s fees should be awarded pursuant to § 16-22-308, which obviates the need for a motion to be filed requesting the fees.

State Auto further contests the amount of the attorney’s fees awarded and contends the fees are excessive and not reasonable. An award of attorney’s fees under § 16-22-308 is discretionary with the trial court and will not be reversed absent an abuse of discretion. See Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). The Swaims respond by emphasizing the complexity of the case and the ten-hour trial. State Auto really presents no basis for unreasonableness other than the amount of the award. We find no abuse of discretion on the trial court’s part.

Affirmed in part. Reversed and dismissed in part.

       The Swaims did not sue for the twelve percent penalty or attorney’s fees under Ark. Code Ann. § 23-79-208 (R.epl. 1992), which relates to delayed payments by an insurance carrier after demand.


source: Caselaw Access Project

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

license: Public Domain

text:
    CITIZENS FOR A SAFER CARROLL COUNTY v. Billy Jean EPLEY, Linda Bristow, Susie Hutchinson, Klaus Kupfersberger, Bruce J. Matthews, Jeff Crockett and Quicker Liquor, Inc., Eric Wade Greer, Margaret Work, Virginia Ellis, and Jack Harp
    99-151
    991 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Billy J. Allred, for appellant.

      Marshall N. Carlisle and James D. Sprott, for appellees.
   Ray Thornton, Justice.

Appellants Citizens for a Safer Carroll County are an organization of concerned citizens and church groups that circulated petitions for a vote on the sale and manufacture of intoxicating liquors in certain townships in Carroll County. They bring this appeal from the Carroll County Circuit Court’s decision that certain signatures of persons on their petitions were invalid under Ark. Code Ann. § 3-8-205 (Supp. 1997), with the result that in five precincts there were insufficient signatures on the petitions to place the issue on the ballot for the November 1998 general election. Having determined that appellants failed to timely file their notice of appeal within ten days of the decision of the circuit court, as required by Ark. Code Ann. § 3-8-205(e)(l), we dismiss their appeal.

On September 10, 1998, Shirley Doss, Carroll County Clerk, certified that petitions had been filed in her office having a sufficient number of signatures calling for a local-option election on whether alcoholic beverages could be sold in thirteen precincts in Carroll County. Appellees Billy Jean Epley, Linda Bristow, Susie Hutchinson, Klaus Kupfersberger, Bruce J. Matthews, Jeff Crockett and Quicker Liquor, Inc., Eric Wade Greer, Margaret Work, Virginia Ellis, and Jack Harp filed a complaint in Carroll County Circuit Court against the county clerk and the Board of Election Commissioners of Carroll County, challenging the sufficiency of the number of signatures. Appellants, who were responsible for the petitions, were allowed to intervene in the suit. On October 6, 1998, a trial was held and five precincts were struck from the ballot. The trial court found that signatures of persons who had registered to vote after June 1, 1998, were invalid and struck them from the petitions, leaving insufficient numbers of signatures on the petitions at issue in those five precincts. The trial court’s order was dated October 15, 1998. The local-option issue did not appear on the ballots in those five precincts in the general election held on November 10, 1998. Appellants filed their notice of appeal on November 12, 1998, urging that the circuit court erred in ruling that Arkansas law required that only those qualified electors who had registered to vote before June 1, 1998, could be counted to determine whether a sufficient number of signatures had been certified to place the issue on the ballot, and requesting that we reverse the trial court and order the Board of Election Commissions of Carroll County to place the issue on the ballot for a special election.

We decline to reach the merits of this appeal because appellants failed to timely file their notice of appeal. While the general appeal time as provided in our own rules, Rule 4(a) of the Rules of Appellate Procedure—Civil, is thirty (30) days, Arkansas Code Annotated section 3-8-205, which provides for the determination of sufficiency of petitions on local option issues, states that if an appeal is taken from the decision of the circuit court regarding the sufficiency of the number of signatures on a petition, “Any appeal from the final decision of the circuit court shall be taken within ten (10) days and shall be advanced and immediately determined by the Supreme Court.” Ark. Code Ann. § 3-8-205(e)(1) (Supp. 1997).

Appellants respond that the court rule and our rule-making power supersedes the statute’s shorter appeal time, and we agree that as a general rule, statutes are given deference only to the extent to which they are compatible with our rules and conflicts which compromise those rules are resolved with our rules remaining supreme. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). However, there is an exception to this general rule: when the statutory rule is based upon a fixed public policy which has been legislatively or constitutionally adopted and has as its basis something other than court administration. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). The principle has been recognized in many cases that when the Legislature fixes a short time for appeal in a particular type of case, and such time so fixed is reasonable, then the short time so fixed must govern rather than the long time allowed by the general appeal statute. Kansas City S. Ry. Co. v. Ark. Commerce Comm’n., 230 Ark. 663, 326 S.W.2d 805 (1959). See also Van Grundy v. Caudle, 206 Ark. 781, 177 S.W.2d 740 (1944); Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987) (upholding limited time of appeal from county court to circuit court under prior law).

We note that the trial court expedited the hearing and its decision in accordance with the time limits established by the statute. The Legislature has adopted a shorter appeal time based upon the strong public policy in favor of resolution of such an issue prior to the time for the general election, and indeed, if appellants had filed their appeal within ten days, it is possible that this case could have been advanced and immediately determined by this court, prior to the general election in November. Rather, appellants did not file their notice of appeal until November 12, 1998, twenty-eight days after the hearing, eighteen days after the time for filing their appeal under the local option statute, and two days after the general election was held on November 10, 1998. Because appellants failed to appeal from the trial court’s order within ten days as required by Ark. Code Ann. § 3-8-205, we conclude that their appeal was untimely and dismiss this appeal.

Dismissed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree with the opinion and write to encourage our Committee on Civil Practice to consider an amendment to Rule 4(a) of our Rules of Appellate Procedure—Civil making reference to Ark. Code Ann. § 3-8-205(e)(l) (Supp. 1997), as an exception to this rule.


author: Ray Thornton, Justice.

text:
    Carol GOFORTH, Mary Felber, Carl Sandrock, Don Lowrimore, Nina Lowrimore, Doyle Wright, Janet Feichtel-Wright, Bill Zemp, and Lawayne Zemp v. Michael SMITH, Judith Carol Smith, and Southwestern Bell Mobile Systems, Inc.
    98-1499
    991 S.W.2d 579
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999
    [Petition for rehearing denied July 15, 1999.]

      W. Marshall Prettyman, for appellants.

      Law Office of Curtis E. Hogue, by: Curtis E. Hogue, for appellees Michael Smith and Judith Carol Smith.

      Catlett, Yancey & Stodola, PLC, by: Mark Stodola and James D. Rankin III, for appellee Southwestern Bell Mobile Systems, Inc.
   Ray Thornton, Justice.

Appellees, Michael and Judith Smith, as well as all of the appellants, are property owners on West Mountain in Washington County. Appellee, Southwestern Bell Mobile Systems, Inc. (Bell), is a local cellular telecommunications service provider. Since 1965 the Smiths have leased their land for towers for communication services. The property is subject to a restrictive covenant for the benefit of some of the appellants. The covenant prohibits any “noxious, odorous, or offensive trade or activity.” In 1997, Bell and the Smiths entered into a lease allowing Bell to construct a telecommunications tower on the property belonging to the Smiths.

Appellants commenced this action by filing a complaint in the Washington County Chancery Court contending that the construction of the tower in their neighborhood would (1) violate restrictive covenants; (2) constitute a nuisance; (3) lead to detrimental environmental effects from radio frequency emissions; and (4) amount to a misrepresentation made by Michael Smith as to his intended use of his land. Appellants sought injunctive relief and damages, and appellees filed a motion to dismiss, arguing that the allegations concerning the environmental effects of the radio frequency emissions were preempted by federal law.

The matter was set for trial on June 17, 1998, and before witnesses were called, the chancellor issued a ruling on the motion to dismiss, finding that issues relating to the environmental effect of radio emissions were preempted by federal law, and ruling that no testimony would be allowed as to that allegation. Following that ruling the trial proceeded on the remaining issues, at the conclusion of which the trial court entered a decree dismissing appellants’ complaint with prejudice. Appellants raise four points on appeal, and finding no error on the part of the trial court, we affirm.

Appellants’ first point of appeal is that the trial court erred in finding that the environmental effect of radio emissions had been preempted by Congress by adoption of the Federal Telecommunications Act of 1996, 47 U.S.C.A. § 332 (FTA). We note that notwithstanding this ruling, appellants were allowed to present evidence relating to each of the remaining issues, including whether the construction of the tower constituted a nuisance, whether its construction violated the terms of a restrictive covenant, whether its construction constituted deceit because of a misrepresentation of future plans, and whether appellants’ claims were barred by the doctrines of waiver and laches.

In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark, 588, 873 S.W.2d 552 (1994).

Federal Preemption

From the time of McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), it has been accepted that Congress has the authority to preempt state law. It is useful to restate the language of the United States Constitution, which reads as follows:

[T] his Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

U.S. Const, art. 6, cl. 2.

In English v. General Electric Co., 496 U.S. 72 (1990), the Supreme Court, in holding that a state law claim for intentional infliction of emotional distress was not preempted by the federal law applicable to the circumstances of that case, pointed out four circumstances for preemption. A state law is preempted: (1) when Congressional enactments explicitly preempt state law; (2) when state law regulates conduct in a field that Congress intended the Federal Government to occupy exclusively; (3) when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress; and (4) when compliance with both state and federal law is impossible. English v. General Electric Co., supra.

If Congress has not explicidy preempted a state law action, it may still be necessary to determine if the action is preempted by implied preemption. Implied preemption can occur in the following circumstances: (1) when the scope of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the state to act; (2) when the state and federal law actually conflict; (3) when compliance with state and federal law is physically impossible; (4) when the state law stands as an obstacle to the accomplishment of the full objectives of Congress. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992) (citing, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).

The statutory language of the Federal Telecommunications Act of 1996 provides that the act “establishes national public policy in favor of reducing regulation and encouraging the rapid deployment of new telecommunications technologies.” See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Specifically, the language we are asked to interpret states: “[N]o state or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” 47 U.S.C.A. § 332(c)(7)(B)(iv).

The House Conference Reports on this section of the FTA offers the following insight into the legislative intent of the drafters of § 332. “The conferees intend section 332(c) (7)(B)(iv) to prevent a state or local government or its instrumentalities from basing the regulation of the placement, construction, or modification of CMS facilities directly or indirectly on the environmental effects of radio frequency emissions if those facilities comply with the Commission’s regulations adopted pursuant to section 704(b) concerning such emissions.” H.R. Conf. Rep. No. 104-458, reprinted in 1996 U.S.C.C.A.N. 124, 222.

The FTA explicitly preempts the state from considering environmental effects of radio frequency emissions when making determinations as to the placement, construction, or modification of telecommunication towers. Congress has considered the issue of preemption in this area and promulgated the following language: “[E]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a state or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” 47 U.S.C.A. § 332(c)(7)(A). Immediately following this general authority provision is a fist of several limitations to the broad grant of authority given to the states. Among these limitations, states are denied the ability to consider the environmental effects of radio frequency emissions when making local construction, placement, and modification decisions of telecommunications towers. 47 U.S.C.A. § 332(c) (7) (B)(iv).

The United States Supreme Court has held that if Congress has considered the question of preemption and expressly addressed it within a statute, the states do not need to consider the issue of preemption further. Specifically, the Court held that:

[W]hen Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority,’’“there is no need to infer congressional intent to preempt state laws from the substantive provisions” of the legislation.

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)(citations omitted).

It is clear that Congress has preempted consideration of the environmental effects of radio frequency emissions in determining the location of towers; however, appellants argue that this does not preempt private causes of action based upon the environmental effects of those same emissions. In Cipollone v. Liggett Group, Inc. supra, the Supreme Court wrote “[A]t least since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) we have recognized the phrase “state law” to include common law as well as statutes and regulations.”

We note that other jurisdictions have determined in similar circumstances that federal preemption limits private common-law actions as well as state action. In Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir. 1994), the Sixth Circuit Court of Appeals determined that an action for nuisance, based upon allegations that radio signals exceeded federal standards, was properly dismissed by the district court on the basis of preemption by the Federal Communications Act. The Sixth Circuit noted that the FCC clearly has exclusive jurisdiction over technical matters associated with transmission of radio signals and agreed with the district court when it found that:

[T]he consistent finding of preemption by all courts that have considered the interaction of common law nuisance claims and the Federal Communications Act. See Still v. Michaels, 791 F.Supp. 248 (D.Ariz. 1992)(nuisance action preempted by Federal Communications Act); Still v. Michaels, 166 Ariz. 403, 803 P.2d 124 (1990) (FCC has exclusive jurisdiction over resolution of radio signal interference nuisance claims); Smith v. Calvary Educational Broadcasting Network, 783 S.W.2d 533 (Mo.Ct.App. 1990) (Federal Communications Act preempts state nuisance action based on radio signal interference with electrical appliances); Blackburn v. Doubleday Broadcasting Co., Inc., 353 N.W.2d 550 (Minn. 1984) (radio transmission nuisance claims under exclusive jurisdiction of FCC).

Broyde v. Gotham Tower, Inc., supra. The Court of Appeals then stated that with regard to the jurisdiction of the FCC over radio frequency interference:

[S]uch matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio transmitter operators should not be subject to fines, forfeitures, or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems.

Broyde v. Gotham Tower, Inc., supra. The Sixth Circuit finally stated that “given such explicit congressional pronouncements, enforcement of the plaintiffs’ state law nuisance action would frustrate the objectives of the Act.” Id.

While the extent of the federal preemption in the case before us is based upon a different conference report, we conclude that the language prohibiting state or local consideration of the environmental effects of radio frequency emissions is grounded on the same principles of public policy to establish a uniform national framework of cellular telephone communications.

Congress has carved out a narrow and well defined area of telecommunications policy in which it has exercised its constitutional authority to preempt state and local laws, and has left substantial elements of zoning and land-use matters to state and local control. However, we conclude that the trial court correctly found that Congress has exercised its authority under the Supremacy Clause of the Constitution to preempt consideration of the environmental effects of radio emissions by the state. We further conclude that the trial court did not commit error by excluding testimony concerning the environmental effects of such emissions.

Claims based upon misrepresentation, nuisance, restrictive covenants, and the defense of laches or waiver.

The Smiths are engaged in radio communication services and lease their land for towers for communication services. The first tower was erected on their property in 1965. That tower, a triangular metal lattice structure, was originally 140 feet tall but is presently seventy feet tall. It has a width of eighteen inches on each side. A second tower was erected in 1988, and was 190 feet in height. All of the appellants either built or purchased their homes after the first tower was erected.

A lease was entered into between the Smiths and Bell in 1997 that allowed Bell to construct a telecommunications tower on the property. The proposed tower would be 170 feet tall and supported by a three-legged base measuring seventeen feet between the legs. The construction costs for the tower was an estimated $630,000. Appellants were notified of the proposed tower in February of 1997.

Appellants objected to the construction of the tower, and, following the trial court’s ruling excluding evidence of the environmental effects of radio frequency emissions, a trial was held to consider whether the tower constituted a nuisance or a violation of a restrictive covenant and whether Michael Smith had misrepresented certain facts to the Wrights regarding his intended land use. After the close of the testimony and submission of briefs and suggested findings of fact and conclusions of law, the trial court entered a decree that dismissed appellants’ complaint with prejudice.

On appeal, we consider chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999).

For appellants’ second point on appeal they contend that the trial court erred when it dismissed appellants Janet and Doyle Wright’s misrepresentation claim against appellee Michael Smith. Appellant Janet Wright alleged that Michael Smith represented to her that he did not intend to build additional towers on his property. Mrs. Wright testified at trial that “he [Michael Smith] said if he did anything he might put one other small tower there, but that this property was his grandfather’s and that he and his wife would build their home there.” Mrs. Wright further testified that “I did not know there would be another tower built on that property. I did not definitely know that. I was told in terms of maybes. That he might put another tower up. I was given notice at the time I bought my property and started building my house that there would likely be another tower built on the Smith property.” Finally, Mrs. Wright, discussing an easement granted to her by the Smiths, testified that “in the easement it states that Michael Smith, Darcy Smith, and Judith Smith may place a guy wire in said easement if they deem it necessary for a radio transmission tower. That was something that when he and I had the initial discussion about it he said, ‘I might put another small tower someday.’ And he said, ‘I don’t know where it would be.’ He said, ‘If it needs to be on your easement, is that okay?’ I said, ‘As long as it doesn’t block us going in and out, that’s fine.’”

Michael Smith testified that he was asked the following question during a deposition prior to trial ‘Did you ever discuss with either of the Wrights any future plans you might have for the property?’ My answer was: ‘I told her that someday I might build another tower up there.’”

At the close of the trial, the chancellor, relying on P.A.M. Transp. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993), dismissed appellants’ claim finding that the representation pertained to future events and as such could not constitute a misrepresentation. The essential elements of an action for deceit are as follows: (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 on the representation; and (5) damage suffered as a result of the reliance. Golden Tee, Inc. v. Venture Golf Schools, Inc., 333 Ark. 253, 969 S.W.2d 625 (1998). An action for fraud or deceit may not be predicated on representations relating solely to future events. Delta School of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989). However, this rule is inapplicable if the person making the representation or prediction knows it to be false at the time it is made. Id.

The trial court’s dismissal was not clearly erroneous. Appellants failed to establish the elements necessary for a misrepresentation claim. Mrs. Wright admitted in her testimony that Mr. Smith never definitively told her that he would not put additional towers on his land. Moreover, Mrs. Wright’s testimony regarding the use of her easement by Mr. Smith for the erection of an additional smaller tower demonstrates that Mr. Smith was not trying to mislead the Wrights about his possible future plans. Additionally, whether Mr. Smith planned to erect more towers on his property is an assertion as to future events. Thus, we hold that the trial court did not err when it dismissed the Wrights’ cause of action.

In their third point on appeal, appellants claim that the trial court erred when it applied the doctrines of waiver and laches to their case. Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993).

The right to enforce a restrictive agreement may be lost by laches or acquiescence, especially when one incurs expenditures. Baldischwiler v. Atkins, 315 Ark. 32, 864 S.W.2d 853 (1993). The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Andarko Petroleum v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993). It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plaintiff s delay in pursuing a claim. Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998).

The chancellor did not err by applying the defenses of waiver and laches to appellants’ case. All of the appellants purchased their homes after the erection of the first tower on the Smiths’s property. The two towers on the property were built in 1965 and 1988. The placement of these two towers have never been challenged. Moreover, appellants have not challenged the placement of these towers in the current case. The Smiths have used their property in the same manner, as the location of communication towers, for thirty years without protest. Relying on the acquiescence of the landowners during the thirty previous years, appellees entered into a contract for the construction of an additional tower valued, at $630,000. Appellees would have been prejudiced if the chancellor had granted appellants’ injunction. Thus, because appellants sat on their rights and because appellees relied on this acquiescence, the trial court properly applied the doctrines of waiver and laches to appellants’ claims.

In their final point on appeal, appellants contend that the trial court’s findings that the proposed tower were neither a violation of the neighborhood restrictive covenants nor a nuisance was clearly erroneous. Restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970). In other words, if there are any doubts, they are to be construed stricdy against those seeking to enforce them and liberally in favor of freedom in use of the land. Id. This rule of construction is based upon the repugnance of restrictions on the use of land to trade, commerce, recognized business policy, and common-law rights to use lands for all lawful purposes. Where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint should be decreed. Id. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970).

Nuisance is defined as conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Southeast Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). Equity clearly will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the nearby property and residents is certain, substantial, and beyond speculation and conjecture. See Arkansas Release Guidance Foundation v. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972). The general rule is that in order to constitute a nuisance, the intrusion must result in physical harm, as distinguished from unfounded fear of harm, which must be proven to be certain, substantial, and beyond speculation and conjecture. It is well settled that a landowner may make such use of his property as he chooses so long as he does not unlawfully or unreasonably interfere with or harm his neighbor. Miller v. Jasinski, 17 Ark. App. 131, 705 S.W.2d 442 (1986). It is only the unreasonable use or conduct by one landowner which results in unwarranted interference with his neighbor which constitutes a nuisance. Id.

The chancellor correctly found that the proposed tower did not violate the restrictive covenant nor was it a nuisance. The pertinent language from the restrictive covenant is set forth in the deeds of the property owners in the neighborhood. The language in the covenant states: “No noxious, odorous, or offensive trade or activity shall be permitted.” Appellants contend that the placement of the communications tower in their neighborhood would violate this restrictive covenant. The chancellor found that “since a telecommunication tower has operated in the area in question without objection for more than 30 years and another for 10 years, the drafters of the restrictive covenant did not consider communications towers to be noxious, odorous, or offensive; that those living in the neighborhood have not considered such towers to be noxious, odorous, or offensive; and that those moving to the neighborhood knowing that such towers were in operation did not consider towers to be noxious, odorous, or offensive.” These findings were not clearly erroneous. Because the proposed tower did not constitute a noxious, odorous, or offensive activity, the chancellor did not err in his finding that the proposed tower did not violate any restrictive covenants.

The chancellor was correct when he found that the proposed tower did not amount to a nuisance. Appellants failed to show any certain, substantial harm that is beyond speculation or conjecture. They alleged that if the proposed tower were erected the following harms would be suffered by the residents of the neighborhood: (1) the tower would be aesthetically unpleasing; (2) an attractive nuisance would result; (3) the tower would bring additional workmen to the community and cause the safety of the residents to be compromised; and (4) the erection of the tower would cause a proliferation of towers in the community. The chancellor found, and the record supports the finding, that all of the harms alleged by appellants are speculative and are not supported by substantial evidence. Accordingly, we hold that because appellants failed to provide proof of actual substantial harm that they would suffer as a result of the proposed tower, the trial court did not err when it found that the tower was not a nuisance.

Affirmed.


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    The TRAVELERS INSURANCE COMPANY and Dan Ray v. Anna F. SMITH, Roseann McKibben, and Sue Ellen Smith
    98-433
    991 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Davis, Cox & Wright PLC, by: Constance G. Clark and Don A. Taylor, for appellants.

      Jeff Slaton, for appellee Anna F. Smith.

      Odom & Elliott, by: J. Timothy Smith, for appellee Roseann McKibben.

      Davis & Watson, by: Jeff H. Watson, for appellee Sue Ellen Smith.
   Ray Thornton, Justice.

This appeal is from a jury verdict in favor of appellees, Anna F. Smith, Roseann McKibben, and Sue Ellen Smith, the widow and daughters of the late Alva Smith, against appellants, Travelers Insurance Company and their adjuster, Dan Ray, the workers’ compensation carrier for Mr. Smith’s employer. The trial court submitted to the jury the question whether appellants committed the tort of outrage by interfering with the rights of appellees to promptly bury their family member in accordance with their wishes. The jury returned a verdict for the Smith family and appellants sought a judgment notwithstanding the verdict, on the basis that there was no substantial evidence to support the jury’s findings. The trial court denied the motion and appellants bring this appeal from that ruling and two other assignments of error. This case was certified to us pursuant to Ark. Sup. Ct. R. 1-2(a)(7), as a second or subsequent appeal following an appeal that has been decided in the supreme court. On review, we find no reversible error and affirm.

On Friday, August 19, 1994, Alva Smith, a truck driver for Gerald Johnson Trucking, died in a one-vehicle accident on Highway 412 in Springdale, in the course and scope of his employment. Travelers was notified of the accident and assigned Dan Ray to the claim on the day of the accident. The Arkansas State Police investigated the accident and determined that the cause of death was massive head trauma suffered as a result of the accident, a conclusion concurred in by the Washington County Coroner’s office. Appellants were notified of the cause of death on the day of the accident, and Ray was told when he inquired about an autopsy that the county would not be requesting one because the cause of death was clear.

Mr. Smith’s body was taken to Sisco Funeral Chapel in Springdale. Mrs. Anna Smith, the wife of the deceased, asked the funeral home to handle the service and authorized them to contact appellants about insurance to pay for the funeral. The family chose a traditional funeral, with a full service and visitation, based on assurances from the funeral home that, notwithstanding Mr. Smith’s injuries, the body could be made presentable for the open-casket funeral they desired. An employee of the funeral home contacted Travelers on Friday, August 19, and was told that the company would have to have an autopsy to determine the cause of death, because they thought a pre-existing condition, such as a heart problem, had caused Mr. Smith’s death.

The funeral home advised the family that appellants were denying insurance benefits until they had an autopsy. Mrs. Smith and Ms. McKibben, who planned the funeral, were without funds to pay for the funeral themselves without the anticipated insurance benefits, so Mrs. Smith reluctantly agreed to the autopsy if that was required. The funeral home director testified at trial that embalming hinders the ability to get clear results in an autopsy, and that they believed that if an autopsy had been ordered, it was illegal to proceed with embalming the body, so it was not embalmed, but placed in refrigeration sometime Friday afternoon. The funeral home immediately attempted to locate a pathologist who would perform the autopsy for Travelers, but was unable to find one. They then notified appellants that they had been unsuccessful in getting an autopsy and that it would now be Travelers’ responsibility to see that one was performed if they wanted one.

Appellant Ray called the Washington County Coroner’s office several times over the next few days, again requesting that the county perform an autopsy. When told that an autopsy was not necessary in every case, and specifically not in this case, he suggested that the coroner was not doing his job. Although Ray had not spoken to any of the Smith family members, he led the coroner to believe that he was expressing the desire of the family to have an autopsy, and told him that an autopsy was required in order for the family to bury Mr. Smith.

Appellees contacted Mr. Smith’s attorney, Phillip Moon, who attempted to facilitate the funeral arrangements. On Friday, Moon was told by Ray that the condition for benefits being paid would be an autopsy, notwithstanding that the embalming could not take place and the funeral could not proceed without the approval of appellants. Ray continued to refuse to authorize the embalming of the body even after he was notified that Mrs. Smith had consented to the autopsy. On Monday, when the situation was still not resolved, Moon attempted to contact Ray’s superiors at Travelers without response. Ray could not be reached Monday or Tuesday, being either out of the office or on vacation. Eventually Moon handed the problem back to the funeral home. On Wednesday, when the funeral home contacted Ray, he continued to insist that any action be postponed, stating that Travelers would not pay for the funeral unless there was an autopsy done. Unfortunately, neither Ray nor Travelers took any steps to see that an autopsy was performed; rather, as the funeral home director testified, Ray indicated that he expected someone else to see that the procedure was done.

The funeral home then got in touch with a Traveler’s field representative in Oklahoma City who later authorized the burial of Mr. Smith. The embalming of the body did not begin until Wednesday afternoon, some five days following the death. Because of the delay in the embalming process and the deterioration of the body, the body was not deemed presentable for an open casket funeral. There was no visitation at the funeral home to view the body, and the funeral expenses included refrigeration charges for keeping the body for five additional days prior to embalming. The funeral was finally held on Friday, one week following Mr. Smith’s death. Travelers ultimately did pay for six thousand dollars of the funeral expenses, as well as widow’s benefits to Mrs. Smith under the Workers’ Compensation Act. No autopsy was ever performed on the body.

Mrs. Smith and her two stepdaughters brought suit against the insurance company and the adjuster alleging the tort of outrage, or intentional infliction of emotional distress. The jury returned a verdict for the Smith family, awarding damages to each woman of $20,000.00 for outrage, and $125,000.00 for punitive damages, as well as $87.50 each awarded to Mrs. Smith and Ms McKibben for deceit. Travelers Insurance and Dan Ray, jointly and severally liable for these amounts, bring this appeal, raising three points of error. They allege first that there was no substantial evidence to support the jury’s findings that they committed the tort of outrage, specifically because any contact by Travelers or Dan Ray was with the funeral home and the attorney, rather than directly with the Smith family; that the trial court erred in instructing the jury that any statement made by Ray to the funeral home should be treated as having been made to the Smith family; and that the trial court erred in allowing the introduction of an inter-office memorandum authored by Ray’s supervisor concerning his lack of candor with regard to investigation of another claim.

Substantial Evidence to Support the Jury’s Verdict

Appellants argue on their first point that the trial court erred in failing to direct a verdict in their favor because there was no substantial evidence to support the jury’s conclusion that appellants committed the tort of outrage. To determine whether sufficient evidence exists to support a judgement in tort-of-outrage cases, we assess whether the evidence is substantial, and, in doing so, consider it in the light most favorable to the appellee. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond mere suspicion or conjecture. Id. It is well-established that in reviewing a motion for a directed verdict, the evidence must be examined most favorably to the party against whom the verdict is directed, including all reasonable inferences that could be drawn from the evidence, and if any substantial evidence exists tending to establish an issue of fact in favor of that party, it is error for the court to take the case from the jury. Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985); Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307 (1969).

What constitutes willful or wanton conduct for the tort of outrage is defined under Arkansas Model Instruction 404: “A person acts willfully and wantonly when he knows or should know in the light of surrounding circumstances that his conduct will naturally and probably result in emotional distress and continues such conduct in reckless disregard of the consequences.” AMI Civ. 3d 404. Extreme and outrageous conduct is also defined under AMI 404: “By extreme and outrageous conduct, I mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all beyond possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Croom v. Younts, supra.

We have taken a strict approach to this cause of action. Recognition of the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. Tandy Corp. v. Bone, 283 Ark. 399, 687 S.W.2d 312 (1984). This court has repeatedly stated that we require clear-cut proof to establish the elements in tort-of-outrage cases. Clear-cut proof, however, does not mean proof greater that a preponderance of the evidence. We have also stated that we take a strict approach and give a narrow view to the tort of outrage. Hence, in considering whether evidence is sufficient in tort-of-outrage cases, we must determine whether it is substantial in light of those standards. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). The definition of the tort-of-outrage includes willful and wanton conduct which embraces activity in which a person knows or should know in light of surrounding circumstances that his actions will naturally and probably result in emotional distress. Id.

A quasi-property right in dead bodies vests in the nearest relatives of the deceased, arising out of their duty to bury their dead. 22A Am. Jur. 2d Dead Bodies § 3 (1988). See also Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990). This right corresponds in extent to the duty from which it arises, and may include rights to possession and custody of the body for burial, to prevent the corpse from disturbances after burial, or to remove it to a proper place. Courts have generally based civil liability for wrongful acts with regard to a dead body on the interference with the right of burial. Id. Further, courts have recognized that there is a right to a decent burial which is guarded by the law, corresponding to the common law duty to bury one’s dead in order to maintain public health and decency. Id. at § 13. Courts have, to a great extent, based civil liability for wrongful acts with regard to a dead body on the interference with the right of burial, recognizing that interference with the rights of person to bury the body of her spouse or kin is an actionable wrong, whether by mutilation of the body after death, the withholding of the body, or the conveyance of a communication which delays the person so entitled. Id. at § 35. See also Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S.W.2d 660 (1936)(permitting recovery of damages under Arkansas law for appellee’s negligent act of altering telegraph message and thereby causing appellant to miss her brother’s funeral). The rights to possession, custody, and control of the body for the purpose of burial are within the protection of the law, and a willful violator of such rights may become liable for damages. 22A Am. Jur. 2d Dead Bodies § 35 (1988). The Restatement of Torts takes the view that one who intentionally, recklessly, or negligently withholds the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body. Restatement (Second) of Torts § 868.

We have previously addressed the sanctity of a family’s right to bury its deceased in Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), where we found the evidence sufficient to support the tort of outrage where the appellants drove heavy equipment across the grave sites of members of the appellees’ family, exposing the vaults, to the distress of the family members. We wrote: “The grounds where close family members — wives, parents, children -— lie buried have a special place in the minds and sentiments of men and women of every race and culture. They are places to be preserved from the erosions of time and nature, if possible, and certainly from the wanton desecration of those who have entered into a covenant to keep them perpetually protected.” Growth Properties I, supra.

The testimony of the funeral home employees presented at trial was that the delay in the funeral process was very difficult for Mrs. Smith and Ms. McKibben, who had taken responsibility for planning the service, resulting in an observable effect and deepening their grief. Further, if the funeral had not been delayed, the family would not have incurred refrigeration charges. The funeral home directors testified that, notwithstanding the family’s acquiescence, Travelers did not take any steps toward obtaining an autopsy. The testimony of one director who spoke with Ray described him as “about the most cruel person I ever talked to in regards to a family that has gone through a death, uncaring and did not seem to have any concern whatsoever for a family that really needed help at that time.”

If the body had been embalmed within six to ten hours of death, as is standard, it would have been presentable for an open casket funeral, and the fact that it was not presentable was directly attributable to the delay. Furthermore, due to the circumstances and the delay, the family was not able to have a visitation period for family and friends at the funeral home, a process believed to aid the grieving family. The family’s attorney, Phillip Moon, testified that Ray was “indifferent to the grief it was causing the family in having this [the funeral] delayed. He showed no real concern.”

Ray did not work on the case on Saturday or Sunday, and took no steps to obtain an autopsy on Monday. He claimed that once attorney Moon got involved, he backed off and felt that he was prohibited from talking to the widow. Ray further testified that he took no steps on Tuesday or Wednesday to get an autopsy, thinking that Moon would take care of arranging an autopsy. He denied telling the funeral home that Travelers would not pay for the funeral unless there was an autopsy.

Sue Ellen Smith and Roseann McKibben each testified about their relationship with their father and the grief that they suffered, exacerbated by the delay in having the funeral. Miss Smith, who acknowledged mental health problems, testified that she continues to be in denial about her father’s death and believes that having seen her father in his casket would have alleviated some of that denial. Both daughters wanted and expected an open casket funeral and wanted to say their farewells to their father in that way. They testified that they could not understand the reason for the delay in the funeral and this delay caused additional emotional distress to them, above and beyond the suffering from the death itself.

Mrs. Smith testified to having nightmares at the thought of her husband remaining on refrigeration at the funeral home, wondering what sort of condition his body was in, and would wake up nights crying. Mrs. Smith finally viewed the body the following Thursday, and testified that the results were not as she remembered her husband.

Mindful of the importance in which our society and the common law has held the family’s right to bury their dead, and the civil liability imposed for the wrongful interference with that right, we hold that the trial court did not err in denying a directed verdict. There was substantial evidence to support the jury’s verdict that appellants should have known that their actions would cause deep and severe emotional distress to appellees, and that they acted in reckless disregard of that fact. Although Travelers had the legal right to investigate the claim, and, if necessary, request an autopsy, substantial evidence supports the jury’s conclusion that appellants committed the tort of outrage by failing to promptly obtain an autopsy after obtaining Mrs. Smith’s consent, effectively holding Mr. Smith’s body hostage, hindering the embalming of the body and delaying not only the funeral, but also the family’s grieving process. Furthermore, appellants knew or should have known that it was their responsibility to order and pay for an autopsy if they desired one. The delay in the embalming process, the family’s inability to have a visitation or an open-casket funeral, and the week long wait for the funeral were the direct result of appellants’ procrastination. Here, the jury determined that appellants’ conduct was intolerable and we cannot say the supporting evidence was not sufficient to constitute the tort of outrage, in view of the deep human feelings involved. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).

Appellants argue in their appeal that they cannot be liable for the tort of outrage because any contact with the family was through attorney Moon and the funeral home, so that no conduct, no matter how outrageous, was directly with appellees. We have previously held that outrageous conduct need not be in the presence of those thus affected, as in the Growth Properties case cited above. There we held that the actions of the appellants in driving heavy machinery over the appellees’ family’s graves, exposing the vaults, was actionable notwithstanding that much of the work occurred outside the presence of the family. Appellants’ argument confuses the intent to cause suffering with the intent to do an act from which suffering can be expected to result. The former may be maliciously intended while the latter may be merely the result of a conscious indifference to the consequences. But even the latter, if sufficiently wanton, will sustain the award. Growth Properties, supra.

Along those lines, we held that substantial evidence supported the verdict of outrageous conduct and the award of compensatory and punitive damages in the case Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), where Board of Directors member Hess instigated a two-year course of conduct aimed at police officer Treece by complaining about him to his superiors, having him followed, making allegations about him to a newspaper writer, and telling others that he would get Treece fired. Hess argued that his actions were not the proximate cause of any emotional distress suffered by Treece. We wrote: “There was ample evidence to show that Hess was the moving force behind the repeated police investigations of Treece, and the fact that there was little face-to-face contact between the two men does not prevent a finding of proximate cause.” Hess v. Treece, supra. Here, the evidence was sufficient to show that appellants knew, or should have known, that their course of conduct would naturally and probably result in severe emotional distress to the Smith family, and the fact that appellants’ conversations were with the Smiths’s agents rather than directly with the grieving family is insufficient to insulate them from liability for the consequences of their actions.

We need not discuss in detail the evidence presented by appellants to excuse their behavior. Such evidence addressed itself to the jury’s role as the finder of fact, and any issue would relate to the credibility of the evidence. Because there was substantial evidence to support the jury’s verdict finding the tort of outrage, we affirm the trial court’s action in denying a motion for directed verdict and later, for denying appellants’ request for a judgment notwithstanding the verdict.

Jury Instruction

Appellants’s second point on appeal concerns an instruction to the jury by the trial court regarding the agency relationship between the Smith family and the funeral home. At appellants’ request, the court gave the jury the following instruction:

You are instructed that the actions, statements and representations of Sisco Funeral Chapel, Inc., its agents and employees, or those of Phillip Moon, may not be imputed to The Travelers or Dan Ray and The Travelers or Dan Ray are not responsible for any damages or injury caused by such actions, statements, or representations.

Appellants objected, however, to the following jury instruction which the court added to follow the above instruction:

Sisco Funeral Chapel was the agent of Anna Smith and Roseann McKibben and was subject to their control.
Any statement made by Dan Ray and/or Travelers Insurance to Sisco Funeral Chapel you should treat as being made to Anna Smith and Roseann McKibben.

Appellants argue that this second instruction was erroneous and required the jury to consider that Ray spoke to appellees in the same manner, choosing the same words and with the same tone and inflection he used in speaking to the funeral home, even though Ray did not actually speak directly to appellees. Appellants’ contention is without merit, because the outrageous conduct was not the tone or inflection of Ray’s conversation with the family’s agent; the outrageous conduct was in not promptly obtaining an autopsy once appellants were given the authority to do so. Appellants’ conduct resulted in Mr. Smith’s body remaining in refrigeration for days on end while they took no action on the claim. Appellants, do not contest that the funeral home was authorized to act as the agent of the Smith family, and it should have been clear to appellants that their actions or inaction would impact the family, the injured parties who brought this suit. "We are not persuaded that it was error for the trial court to have so instructed the jury, and affirm on this point as well.

Introduction of the Interoffice Memo

For their final claim of error, appellants contest the trial court’s permitting the introduction of an interoffice memorandum contained in Ray’s personnel file. On direct examination, Polly Sweet, Ray’s supervisor was asked, “It’s a fact, is it not, that Travelers Insurance believes that on occasions Dan Ray has misrepresented his actions in dealing with claims?” She responded, “I don’t believe that’s correct.” At that point, appellees sought to introduce a memo dated October 3, 1994, in which Ray Pickens, manager of Travelers’ Oklahoma City claims department, documented his investigation of a letter sent by Dan Ray to an insured employer regarding Travelers’ position on carpal tunnel syndrome claims made by their employees. At a meeting regarding this letter, “Dan offered explanations which were subsequently contradicted by Supervisor Polly Sweet, Engineering Representative Mark Hyams, and the account. My follow-up investigation convinced me that Dan mis-represented the facts in his responses in the meeting.”

Appellants argue on appeal that not only is this evidence more prejudicial than probative, but also that it is inadmissible under Rule 608(b) of the Arkansas Rules of Evidence. Neither of these arguments was made below and thus we are precluded from addressing them appeal, as appellants are not permitted to change the basis of their objection on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Appellants contend in their responsive brief that this issue was raised in their motion for a new trial and judgment notwithstanding the verdict, but we are unable to verify that contention because, while the motion is abstracted, it makes no mention of Rule 608(b) and does not preserve the arguments now advanced on appeal. The issue must have been brought to the attention of the trial court for a ruling during trial or at some point prior to the entry of final judgment. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992). As for the trial court’s decision regarding relevancy, we recognize that the trial court’s findings are entitled to great weight. We will not reverse a ruling on relevancy unless we find an abuse of the trial court’s discretion in the matter. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Bohannon v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). Here, Travelers’ representative, Polly Sweet, denied that the company had ever previously thought that Ray had misrepresented his actions with regard to claims he has handied. When she did so, she opened the door to impeachment by a prior inconsistent statement under Arkansas Rules of Evidence Rule 613, and the trial court correctly permitted the introduction of the memo for the purpose of assessing Ray’s credibility.

We conclude that the trial court did not err in denying appellants’ motion for a directed verdict or a judgment notwithstanding the verdict, in instructing the jury on the agency issue, or in allowing the introduction of the interoffice memorandum. Accordingly, we affirm the decision of the trial court.

Affirmed.

Glaze and Imber, JJ., concur.

Tom Glaze, Justice,

concurring in part. I agree with the majority opinion but concur on the reasoning given for sustaining the trial court’s ruling permitting the introduction of the Travelers Insurance Company memo. The majority correctly concludes appellants Travelers Insurance Company and Dan Ray failed to preserve the evidentiary Rule 608(b) argument the appellants attempt to raise on appeal. As to whether the trial court abused its discretion in ruling the memo was relevant and therefore admissible, I believe the memo was relevant under Ark. R. Evid. Rule 404(b) to show Travelers had knowledge of Ray’s past misrepresentations. I do not join in this court’s Ark. R. Evid. Rule 613 discussion regarding Ray’s credibility, which I fail to find in either the appellants’ or appellees’ briefs.

Imber, J., joins this opinion.

        See Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997) (denial of appellants’ petition for writ of prohibition contending that the circuit court was without jurisdiction to hear the case as the Workers’ Compensation Act was appellee’s only remedy).