*1 1046 contractor. Wil one or an
whether is a servant independent 99, Davison, (1938). Ark. 122 539 son v. 197 S.W.2d Howard, at Ark. at 918 S.W.2d 183. 324 sum, see difference between authority In we a marked from the work which Willis doing altogether, stop Joyce Taylor done, and to control have her most could certainly authority she went his task. We observe manner in which Willis about the exact or could have that the intended micromanage, no proof Taylors Nor his work. do how Willis micromanaged, actually accomplished have from the record that Willis would himself we subjected glean favor. control in to such performing Because was no substantial evidence there regarding of the trial court existence of relationship, judgment agency We remand for an order consis must be reversed to the Taylors. tent with this opinion.
Reversed
remanded.
PLANTERS
Ashel GORDON v.
& MERCHANTS
INC.,
BANKSHARES,
Bank
d/b/a Planters & Merchants
Russell & Robert R. Berry, Grobmyer Haley, by: Ross, for appellee. Layton Roaf, Gordon, Andree Ashel appellant, Justice. bank, Bancshares,
sued & Planters Merchants Inc. appellee, of a he (“Planters”), check into wrongful charge-back deposited his account. Gordon that Planters violated Ark. alleged Code Ann. (1987) 4-4-213 and acted and in bad maliciously, intentionally, faith; check, he sued for the amount of the interest and plus puni tive This court reversed the trial damages. court’s dismissal previous of Gordon’s action under Ark. R. Civ. P. in Gordon v. 12(b)(6) Inc., Planters Bancshares, & Merchants 832 S.W.2d 492 *4 held (1992), and that a to bank’s collecting right charge-back account terminates when settlement for a check becomes final. On remand, trial, the court during trial directed jury verdict granted to on Planters issue after which Planters punitive damages, conceded for for the compensatory damages wrongful The trial court awarded charge-back. Gordon the amount of the check, $335 interest and fees. On plus attorney’s Gordon appeal, contends that the trial court erred in Planters a directed granting verdict as to and amount of fees attorney’s awarded. We that the trial court erred agree a verdict directing on and reverse and remand a new for trial.
Ashel Gordon and Wallace were Lloyd partners approxi- three in a business mately years known as “Gordon Wallace farming 1982, Farms.” In ended when Wallace decided partnership take a with Bank. Planters Pursuant to a dissolution job agreement, $67,000 Gordon Wallace for what Gordon believed was the paid to the partnership. belonging assets formerly to all right $2,494.21 is- 1990, received a check Gordon In September, Association (“Co-op”), Buyers’ Cooperative sued by Stuttgart National”), (“First Bank of National Stuttgart the First drawn on The check was Farms. Wallace to Gordon and made payable of the accrued which during operation dividends patronage Farms” Wallace the check “Gordon endorsed Gordon partnership. 24, 1990, account his into it on personal and September deposited Wallace, was working former Gordon’s partner, at Planters where setdement made final next First National officer. The day, a loan check, Planters the amount of the completed Planters for with the amount of account for credited Gordon’s and posting process, check. check after the was deposited, two On just days September whether the Gordon home inquired Wallace phoned not clear from the It is had received a check Co-op. Farms Wallace check of the through knowledge whether Wallace acquired some other source. Gordon’s Planters or through employment check had been received deposited. that the wife told Wallace to one-half of whether he was entided When Wallace inquired check, him call back later and instructed speak Mrs. Gordon Gordon; did not do so. Wallace Mr.
Instead, to deter- called the Wallace Co-op September had Farms been the check to Gordon Wallace mine whether at his office called Wallace back officer manager cleared. Co-op had him that the check at Planters and informed number phone an officer of the himself as cleared. did identify been Wallace his office bank, he was from calling or tell manager Co-op phone. Barber, loan was a a friend of his who then called Wallace Jack Wallace Barber that Gordon National. Wallace told
officer at First existed, he had been a member partner- no Farms longer Barber endorsed. the check had been and that improperly ship, service and to a customer information on to Co-op passed manager The First National service at First National. manager *5 1 and on two consecutive October called the days, Co-op manager the 2, check from Co-op return of the canceled October obtained call, it to Planters. and returned after the second First received from at Planters On October bookkeeper was marked “Return to Maker.” the check which National Wallace, her who instructed consulted her supervisor, bookkeeper the Gordon’s account. At to check Wallace’s charge-back against instruction, check the and deducted charged-back bookkeeper the amount from Gordon’s account. not
Planters did contact Gordon about the charge-back check, and Gordon to his was aware of debit account until he received a notice of overdraft after the eight days approximately check had been at Planters. Gordon went to deposited immediately Bauer, Planters and the bank Bauer told spoke Larry president. Gordon that him was a matter between charge-back personal Wallace, and that Gordon would have resolve the to dispute with Wallace. Bauer did not the matter or to offer assist investigate Gordon in the resolution the dispute.
Gordon suit Planters bank brought against alleging liable under Ark. Code Ann. 4-4-213 strictly (1987) (now § codified as Ark. Code Ann. 4-4-215 when it (Repl. 1991)) addition, the check In after final settlement. charged-back Gordon Planters, sued for on the basis that punitive damages Wal- through lace, acted and in trial bad faith. The court maliciously dismissed the action under Ark. R. Civ. P. for failure to state a 12(b)(6) claim on which relief could be granted.
Gordon
the dismissalto this
in
v.
court Gordon Plant
appealed
Inc.,
ers
Bancshares,
& Merchants
1. damages. it Gordon’s that wrongfully charged-back Planters admitted has account; thus, is whether Gordon issue appeal the only an award of evidence to and submitted support sufficiently pled this reverse the trial In order to judge’s ruling, damages. punitive 4- are under court must find that: 1) damages permissible punitive § the issue to be evidence to allow there was sufficient 2) 4-215(d); held Planters Bank be vicariously and 3) may submitted to jury; actions. for Wallace’s liable wrongful under A. Punitive 4-4-2i5(d). Damages § are recoverable under This issue of whether damages punitive the Uniform Commercial the wrongful charge-back provision is an 1991), Ann. 4-4-215(d) Ark. Code (“UCC”), (Repl. Code § found that also have not first in Arkansas. We issue of impression Therefore, it is considered this other have question. jurisdictions in the UCC regarding to review general necessary provisions in which we and and cases measure damages, appropriate under the award of damages other states have addressed punitive in- article to UCC other UCC introductory provisions. structs that: subtide shall be
The remedies this liberally provided by be administered to the end that the may put aggrieved party had as if the other fully per- in as a party good position nor formed but neither or penal damages consequential special subtitleor other as in this by be had provided may except specifically law. rule of 1991) 4-1-106(1) (emphasis supplied).
Ark. Code Ann. (Repl. this different that courts have There are three ways interpreted Hawkland, (1982). D. UCC Series 1-106:04 William language. find of this section and take a broad view Some jurisdictions or that it is consequential, special, permissible impose sec- unless are particular they specifically by prohibited on the Id. rely tion of Code. Courts following approach under the remedies mandate at the beginning paragraph administered.” Id. UCC are to be “liberally and hold take the or narrow Other courts approach, opposite, are allowable only consequential, special, Id. These authorized the Code. jurisdictions when specifically of law courts should find that go general principle beyond that are not for answers to addressed Code specifically problems Instead, are Id. in the Code best filled therein. usually “gaps through rather than the use of resort to common extrapolation” analogy *7 However, the note that this law. Id. commentators narrow approach of the subsection “contrary plain meaning 1-106(1)” appears which refers to “other rules of Id. law.” specifically third,
The is an final or neutral approach intermediary view, the of section. Id. to this Section 1- interpretation According 106 neither for nor of provides prevents imposition special, Instead, or Id. must court look consequential, damages. to the common law to the Code as in Section supplement provided 1-103. Id. The that: commentators state sound,
This seems because subsection theory 1-106(1) states that it does quite not authorize the of plainly imposition or and that such dam- consequential, special penal damages are unavailable to the ages unless aggrieved party “specifically in this Act or rule other law.” provided by of Id. in (emphasis original).
Arkansas has not of these specifically three adopted any However, of the approaches. other regardless approach, jurisdictions have held that are allowable under the punitive damages UCC See, whenever a acts a willful or wrongdoer malicious manner. Fedders v. e.g., 493 So.2d Corp. (Miss. 1986) 301 Boatright, (finding are allowable under punitive damages the UCC when there ais of breach First Nat’l v. “gross magnitude”); Bank 689 P.2d Twombly, 1226 (Mont. 1984) are (holding recoverable under the UCC when “the Bank’s conduct is sufficiently culpable”). UCC,
As to under Article 4 of the damages general in this article provision damages declares:
(a) effect of this be provisions chapter may varied but agreement, to the by cannot parties agreement disclaim a bank’s its lack or failure responsibility good of faith to exercise care or limit the measure ordinary damages However, or lack failure. determine parties may by agree- ment the standards which the bank’s is by to be responsibility measured if those standards are not unreasonable. manifestly 1054 for failure to exercise ordi- damages The measure
(e) item is the an amount of the item in handling care nary that could have been realized amount by reduced by thereis alsobad it care. includes faith, the exercise of ordinary If as a other party proximateconsequence. any damages suffered From 1991) added). Ark. Code Ann. 4-4-103 (emphasis (Repl. Article for the it is clear that 4 imposition provides provision, in bad faith when “other” when a bank acts dealing customers. its
Moreover,
we have recognized
imposition
puni
which,
cases
like
tive
dishonor
wrongful
wrongful
cases, are
Article 4 of the UCC.
governed
City
charge-back
Goodwin,
Ark.
S.W.2d 335
Twin
(1990);
Nat’l Bank v.
Isaacs,
(1984).
Bank v.
Ark. Code Ann. 4-4-402 As with (1987) (emphasis supplied). § 4-4-215, Ark. Code Ann. dishonor was wrongful provision § addition, In Section silent as to 4-402 punitive damages. specifically awardable, included as to of limiting language types damages the. for actual and consequential damages. only provided Goodwin, In this court said that were allowa- punitive damages ble when a bank dishonors a check based on an “erroneous belief that it had a to do so” or in bad faith or legal right “deliberately check,” were dishonors a but that actual damages willfully only recoverable when the dishonor occurred a mistake. Good- through win, reference to dishonor mistake was supra. Although through in deleted from in the revised uniform law 402(b) Section this which Arkansas has Goodwin remains evidence of adopted, court’s of the narrow in the amount rejection determining approach allowable under the UCC. of damages Furthermore, Bank v. in Citizen’s Chitty, of in we addressed damages S.W.2d 814 (1985), question a bank to its customer’s context of a by wrongful charge-back that his bank in was alleged negligent account. complaint Chitty’s of owed to its Id. the breach a fiduciary depositor. Although duty entitled we held that not Chitty consequential damages that the acted there was even an bank in because implication faith, we stated: bad Ann. states (Add.
Ark. Stat. that a 85-4-103(1) 1961) bank not disclaim its for “failure to exer- responsibility may cise care or . limit measure . . of for ordinary damages “The such lack or failure. . .” measure failure in to exercise care an item is the amount ordinary handling reduced an amount which item could not have by care, been realized use and wherethereis by ordinary bad it includesother damages, any, party faith suffered if Ark. Stat. Ann. 85-4-103(5). Thus approximateconsequence.” it be seen that the amount of is limited to the may recovery amount of the absence bad itemjs] faith.
Id. Ark. Stat. Ann. is 85-4-103 which now codified as Ark. (citing Code Ann. 1991)) 4-4-103 (Repl. added). (emphasis
Because we allowed have imposition when the pertinent dishonor did not wrongful provision them, isit clear that we have not specifically provide adopted Moreover, Goodwin, narrow of Section 1-106. interpretation court stated that were recoverable under both the conversion, claim of dishonor and wrongful we found no although substantial evidence award on support either punitive-damage *9 Goodwin, cause action in that of instance. this supra. Consequently, court has that indicated be can awarded for punitive Arti damages cle 4 violations where the statute does not them specifically prohibit alternative, without that an necessity common law tort be pled. Thus, Gordon’s failure to assert a claim for conversion is not fatal to his claim for punitive damages.
There a further is reason that should be punitive damages allowed this case. Arkansas Code Annotated 4-1-203 (Repl. that, 1991) or clearly contract within thissubtitle provides “Every duty of faith in its or imposes obligation good enforce performance mentioned, ment.” As added.) Planters had (Emphasis previously clear under Ark. Code Ann. to from duty 4-4-215 refrain charg-
1056 had account once Gordon’s payment the check against ing-back under the circumstances breach of this final. Planters’ duty, become case, construed to be an exercise could have been this by presented Moreo- Section 1-203. is by bad faith which strictly prohibited of trial court of this issue when ver, Gordon sufficiendy apprised in bad actions were “taken that Planter’s he in his alleged complaint rela- faith,” and its fiduciary Planters “violated exploited that him. with tionship” whether have not addressed we
Although specifically of for a breach of the good are recoverable duty damages punitive Bank, UCC, in Adams State 1-203 of the v. First faith under Section 235, the issue 611 we declared that Ark. 778 S.W.2d (1989), 300 if the have under a test subjective plaintiff could to jury gone to avoid sufficient facts summary judgment. had simply alleged Moreover, dam have that other recognized punitive jurisdictions for a breach of the faith duty are recoverable good imposed ages See, that 1-203. e.g., Twombly,supra (finding punitive Section when a breach of are under the UCC there is recoverable damages Bank, v. United 209 Cal. CommercialCotton Cal. magnitude”); “gross Dist. that (Cal. 1981) 551 4th (holding App. punitive Rptr. faith where the bank breached are recoverable duty good its Planters’ argu fair towards dealing depositor). Consequently, not be allowed because Gordon’s ment may contract, as to is based in or intentional negligence case opposed tort, does defeat Gordon’s right punitive damages pursuant of the UCC. faith Section 1-203 the duty imposed by good B. Evidence. Substantial to avoid a verdict and reach the In order directed jury must have substan the issue damages, presented acted tial evidence that the defendant causing “wantonly or such conscious indifference consequences injury Lukas, 308 S.W.2d malice be inferred.” Stein v. Ark. may burden, find that and thus the We Gordon satisfied (1992). Goodwin, should have been submitted to the supra. issue See jury. he thought On Wallace notified Gordon that September half of check made to “Gordon he was entitled to payable into his Farms” which Gordon had personal Wallace deposited matter or an Instead of with Gordon bank account. pursuing *10 have at the Wallace abused Planters Bank attorney, position with check Gordon’s account Planters. charged-back against with to the of this check is handling testimony regard issue to the resolution of the and it is pertinent summarized in detail. The accordingly Co-op manager, Virginia Woodward, check, that testified she did not the that the dispute endorsement, did not have with the and that any problems Co-op the check would not have been sent back “but for the intervention it there at bank in whoever was the was Woodward Stuttgart.” concerned about this incident that she a memo sufficiendy prepared week the one after she returned check. This memo approximately recited the three from calls she received Wallace and Harr phone and the from to return Harr the check because request disputed endorsement. Barber, National, Gordon’s friend at First testified that he Jack unlawful,
did not that the determine of the check was negotiation check, endorsement, that he never saw the did not the check and that he called the to relate information to his Co-op cus- simply Harr, National, tomer. Donna at First testified that the manager reason return which was on the check was “other” stamped and that “refer to maker” was also written it at her direction. Harr could not the endorsement why box was not checked. explain She stated that the “customer is the one that asked us to Co-op] [the check, return the at our Harr further testified that she request.” asked that the thought check be returned Co-op “because of endorsement,” and that she made the decision that endorse- ment was insufficient because the check was not signed by authorized or She further partner stated that First National party. returned the check to Planters and the account was Co-op’s with credited the funds. Wilbanks, Planters,
Bonnie testified that bookkeeper she discovered the returned check in a itself basket at the sitting end of the work on October 3. Wilbanks that day explained checked, endorsement box was not to the bank’s according “Gordon Wallace Farms” was a policy, endorsement. When proper check, she about Wilbanks was instructed to inquired speak Wilbanks, with Wallace. Wallace told her that there According was a with the it check should be returned. problem Bauer, Wilbanks further testified that Plant- Larry president ers, in the room when she discussed check Wallace.
1058 that Wallace evidence there is substantial
We think achieve did them to and his actions intentionally effect of knew the Thus, that it was evidence there is substantial ends. his personal check, to have the and malicious intentional purpose Wallace’s interest, against charged-back he had pecuniary which personal, least, amounted Wallace’sbehavior At the account. very Gordon’s Hence, of his actions. for to a conscious disregard consequences of the issue evidence to there was sufficient present hold that we to the jury. damages punitive
C. AgencyRelationship. on damages to allow the impose punitive jury Finally, between Planters, existed must find that an we agency relationship the check to be when Wallace caused charged- and Planters Wallace Gordon’s account. back against employer
Under the doctrine respondeatsuperior, the acts of his employee be held Hablefor may of his or her was within employ if the acting scope employee Doss, 320 Inc. v. time of the incident. Hunt ment at the Transp., J.B. 660, action is Whether the (1995). S.W.2d 464 employee’s Ark. 899 is not necessarily dependent employment within scope occurrence, is the individual but on whether the situs of upon opposed out “object purpose enterprise,” carrying own interest. Id. in his to acting exclusively Planters asserts Wallace’s pecu correctly personal, cause the of Gordon’s interest motivated him to charge-back niary However, bank to achieve utilized his at the check. Wallace position with utilized his connections Wallace further banking this purpose. start the Barber of First National to charge-back procedure. Jack within his was supervisory capacity Wallace clearly acting Finally, Gordon’s he instructed Planters’ charge-back when bookkeeper find that within the we Wallace acting check. Consequently, when he caused the of his charge-back employment scope account. addition, Planters be held liable
In may Bauer, conduct of based on the Larry president refused to assist Gordon Planters. Bauer Specifically, account, instead, to re his instructed charge-back Bauer demon the matter with Wallace. With response, solve actions, and more his awareness of Wallace’s importantly, strated 1059 to the “conscious indifference” Gordon’s account. charge-back Lucas, See, Ark. S.W.2d 832 We find (1992). Stein v. 823 held liable for that Planters Bank be based on may Bauer’s conduct. Wallace’sand/or
Furthermore, Bauer’s behavior be construed as a may ratification of Wallace’sconduct. In v. Brady Bryant, 894 S.W.2d we said: (1995), *12 is well settled in Arkansas law that when the has principal
[i]t acts of his unauthorized and re- knowledge agent, mains silent...he cannot thereafter be heard to deny but will be held to have ratified the unauthorized agency It acts.... has been said that the affirmance of an unautho- rized transaction be inferred from the failure to may repudi- it, ate or from or retention of benefits of the transac- receipt tion with of the facts. knowledge Co., Arnold v. All AmericanAssurance
(citing S.W.2d 861 involved an (1973)). unautho- Although Brady agent’s rized entrance into a setdement on behalf of the agreement princi- of ratification also pal, when the principle actions applies agent’s tortious, are and ratification bind the for may principal punitive Restatement damages. (Second) & 218 217(c) Agency (1957). §§
Because there was sufficient evidence to allow the jury to decide whether Gordon was entided to based punitive damages conduct, on Wallace or Bauer’s we reverse directed verdict and remand for retrial.
2. Attorney’sfees. retrial, Because we reverse and remand this case for we do not reach the However, issue of the award of fees to Gordon. attorney’s we note that in an affidavit submitted to the court Gordon claimed $11,248.95 he was entided to fees for attorney’s eighty-seven billable $120 hours at an hour $800 and The trial depositions. $335, awarded Gordon’s judge which does not even attorney only cover the cost of the in this case depositions difficult involving issue of first in Arkansas. impression
Reversed and remanded.
Corbin, and J„ Special Justices S. Robert Shafer K. LeAnne Daniel dissent.
Dudley Brown, JJ., participating. Corbin, So much the old L. dissenting.
Donald Justice, After the to- opinion that cheaters never majority’s prosper. adage but do be they it is that not only they may apparent prosper, day, addition There to all entided to prosperity. at trial to award of no substantial evidence support presented Ashel To the Gordon. to contrary, Appellant to the Gordon’s own jury, there was evidence including presented admissions, that Gordon was not entided to which demonstrated and that this cause of action entire of the check proceeds Wallace, former resulted because Gordon’s partner, happened only to to catch Gordon while he was proceeds attempting keep trial it best when he the check all to himself. The said stated: judge tells me Mr. Gordon is conscience trying [M]y — deal. And make—is on this already doubling money shoot for to allow for him to top that, after been frustrated in his he has attempt possibly Wallace, I can’t in avoid his to Mr.—Mr. good that. conscience with go *13 the trial
The mischaracterizes majority testimony opinion states that evidence existed to the when it substantial issue present The is correct that of to the both jury. majority and his that it was their that wife testified understanding Gordon, that, out the had been at the by partnership bought time, to half Wallace was not entided of the money. majority however, trial, out, that the on cross- neglects point during examination, that he Gordon testified that the ultimately agreed him. check did not There was further admis- belong entirely had the interim sion Gordon that one-half of Co-op paid by of to him and the other half to the check Wallace. proceeds Thus, in his that Gordon the trial was correct observation had judge all was entided to when that he rightfully already gained Co-op received him his share The fact that he proceeds. paid the check moved for a other half of the when Planters proceeds had in fact directed verdict itself demonstrates that Gordon against he twice the to which ever entided. amount was gained witnesses does elicited Gordon’s own through The testimony Wallace, and Planters as Wallace’s not his contention that support caused to him. intentionally damage employer, maliciously Woodward, stated that the Stuttgart Co-op bookkeeper, Virginia 27, 1990, her on and asked her if the Wallace called September Farms” had cleared the bank. She stated check to “Gordon Wallace know, out, that she did not but she would call her bank and find cleared, the check and then call Wallace. When she found out had told him. stated that did she called Wallace and She Wallace himself as a bank officer with Planters. She stated that she identify Bank, next heard from an of First National her employee informing check, there was a and that the dispute among parties could the check back to the bank for credit if the Co- Co-op bring desired to do so. She stated that the bank told her it op employee situation, was to the to do what it wished in the since the up Co-op check had been She stated that she decided already paid. ultimately, that it would be best to return the check to First National Bank for credit. She verified that she had no from Wallace in her input decision, and that Wallace said that influenced her in nothing any way. Barber, Bank, the loan officer at First National stated that Jack
he knew Wallace some bank seminars and classesthat through they had attended He stated that he recalled together. contacted being Wallace the check. He stated that the concerning Wal- purpose lace’s call was to inform him that a check had been deposited Planters bank from the to a Stuttgart Co-op, payable farming part- that had been dissolved for He stated nership couple years. Wallace informed him that he had (Wallace) information personal dissolved, that the because he been had involved in entity He stated that Wallace did not ask him to do partnership. anything check, about the that he wanted to inform Barber that a only check been had written to a dissolved so that Barber could partnership customer, inform its Barber stated that to the best of Co-op. recollection, Wallace never him called about the check again. *14 Harr, Bank,
Donna the at First National stated bookkeeper that she had been on vacation when the information came initially returned, in about the check. She stated that when she she was notified that the wanted to return the check because it Co-op the of the endorsement. stated that it questioned She propriety would have been her decision whether or not to return the check to Planters as She further that in her stated the unpaid. opinion endorsement was because it lacked individual improper, signa- ture the who Farms” the “Gordon Wallace by person signed check, was no indication from the and because there
back the the the check was authorized endorsement whether person signing that heard She stated she had not to endorse such checks. further check, Earl with the and the name Wallace” connected of “Lloyd know was. that she did not even who Wallace Wilbanks, Planters, the at stated that Bonnie bookkeeper Maker,” check, “Refer back she the now marked to when received Bank, Wallace, her First she what from National asked supervisor, item, that told her it was a return to do with it. She stated Wallace it, it be returned to the who that would have to person deposited with it. She further stated that she there was problem the to in knew that was Wallace referred “Gordon Wallace Wallace Farms,” in but that she did consider the situation as one which Wallace had a interest of the check. She personal proceeds she asked what she should do with the stated that when Wallace check, Bauer, was the bank’s in the room. Larry president, present stated it normal that when the received a She that was bank practice would back dishonored check it be to the customer’s charged account. testified that after his wife had discovered that their
Gordon overdrawn bank account was due to returned check from to to he went the bank to talk Stuttgart Co-op, president, Larry Bauer. Gordon stated that when he Bauer to ask him approached he was told Bauer that he would have to check what happened, by Wallace, between because situation was Gordon Wal- did, however,
lace. Gordon state that he received half of the funds to went to due him from and that other half Co-op, It was at that that Gordon that he was Wallace. point acknowledged not entitled all of that to the detriment his former money Wallace. partner, Wallace,
None of the actions taken not mention by any Planters, actions been which have attributable to demonstrate may malice deliberate intent harm or Moreo- or Gordon. any injure ver, Gordon no that he was fact testimony injured by presented than half the other the fact that he was out charge-back, check, the Co- of the which he was later money by proceeds paid There no the amount of op. testimony presented concerning that Gordon’s bank account was overdrawn due to money court, fact, before it was In oral during charge-back. argument out that none checks during written pointed *15 returned to him for reasons of interim were insufficient period funds; Planters covered amount that the account was over- any short, drawn. In I can see no for actual let justification damages, alone punitive damages.
The evidence recited above demonstrates more than nothing that Wallace contested actions in Gordon’s a check made cashing to the dissolved Wal- payable partnership attempting deprive lace of his share of the Wallace was to defend his money. attempting own interest in the of the check. Such defensive action proceeds malicious, intentional, amounts to or willful desire to cause hardly to Gordon. Gordon has received a windfall from this injury already cause of action to the tune of double his For this court to money. sanction him his behavior a chance to receive by allowing $150,000.00, which he seeks in the amount of is damages, unconscionable. reasons,
For all of the above I dissent. respectfully S. An action Shafer, Special Justice, dissenting. Robert customer bank to Ark. against Code Ann. 4- collecting pursuant § alone, 4-215(d), should not a claim for standing support as a matter of law. Even if were recover- punitive damages this, able in a case such as I would hold that the evidence is insufficient to submit the claim for to the punitive damages jury. I dissent from the Court’s Accordingly, respectfully remand of the claim for trial. I further would punitive damages address the issue of fees and hold that the trial attorney’s court abused its discretion under Ark. Code Ann. 16-22-308 in a fee $335 awarding only for the services of Gordon’s attorney.
The Court held in Gordon v. Planters &
Bancshares,
Merchants
Inc.,
11, 14,
Even assuming
§
which is an issue
the conduct in
to
question,
mon law
regard
raised,
a
action which
no cause of
may support
have not
parties
in the
in this case or
argued
claim for
pleaded
punitive
There is no
Ark.
Ann. 4-1-103.
suggestion
first
See
Code
appeal.
§
was tried
consent
intentional tort cause of action
that an
to
at trial to amend
and there was no
pleadings
request
parties
in his
that the
conform to such
Gordon alleged
complaint
proof.
faith,
in bad
but the mere
malicious and taken
bank’s actions were
action,
a cause of
nor does
of malice does not state
every
allegation
dam-
the door to the
intentional act
imposition
punitive
open
Brown,
(1982).
Moreover, of conversion would not automatically even proof to submit a for have entitled Gordon request Goodwin,301 National Bank v. As the Court stated City jury. 182, 188, 335 (1990): Ark. 783 S.W.2d action are not recoverable in a conversion
Punitive damages exercised control the defendant intentionally because simply act Simply put, or dominion over plaintiff’s property. an award of in itself will not of conversion support Instead, the must show that the defendant plaintiff damages. control or exercised dominion over the plain- intentionally tiff’s for the purpose violating right property or for the damages. property purpose causing claim The errs in Gordon’s failure to assert a excusing majority conversion, or some other intentional tort which might support while him evi- to tack request punitive damages, permitting dence of malice and bad faith onto his strict cause of action under 4-4-215(d). are majority recognizes expressly *17 in UCC as cases in this
prohibited “except specifically provided subtitle or other rule of law.” Ark. Code Ann. In 4-1-106(1). by § that dam- an award of holding 4-4-215(d) may support punitive § without a to ages, and an requiring plaintiff plead prove indepen- tort, dent the has overlooked the force majority prohibition in imposed by legislature 4-1-106(1). § The looks elsewhere for majority for specific authority puni- tive but 4-4-103, without success. Ark. Code Ann. cited damages, § refers to the by majority, that a recover possibility plaintiff may “suffered as a damages of a defendant’s proximate consequence” UCC, breach of the when bad faith is also Since present. punitive are to and to deter damages imposed conduct and punish egregious acts, not as a of a defendant’s proximate 4-4-103 is consequence § not a in the UCC for specific provision and thus punitive damages is to inapplicable 4-1-106(1). §
The Goodwin, cites National v. majority Bank City in supra, which the held Court that were in punitive recoverable a damages dishonor case wrongful bank against payor Ark. Code pursuant 4-4-402, Ann. provided dishonor willful and not § decided, “mistaken.” At the time merely Goodwinwas 4-4-402 § limited a bank’s for dishonor payor to actual wrongful “when the dishonor occurs damages mistake.” The Good- through win Court construed “mistake” as a dishonor made in “wrongful faith,” so that the good limitation to in actual only damages applied circumstances, such and not when the was willful. In the dishonor it, case before the Court ruled that were punitive damages recoverable because there was no evidence of a deliberate willful dishonor the defendant by bank. Goodwin, 4-4-402,
One after amended year legislature § text as (b) statutory subparagraph the then-existing designating occurs mistake.” the dishonor words “when through deleting was to make the limitation to actual amendment effect of this The The in the statute unconditional. majority recognizes damages in for the rule 4-4-402(b) basis is no statutory there longer any § Goodwin, in but the announced major- damages regarding for still that Goodwinis competent authority rejecting states ity under the UCC. This construction “narrow damages approach” to the which accords too little deference legislature, of Goodwin its amendment to eliminate intended option puni- plainly cases. The in dishonor legislative response tive damages wrongful in that the should holding option Goodwin guide majority 4-4-215(d). should not be read into § faith Ark. Code The relies duty good majority upon However, the official comment to 4-1-203 states Ann. 4-1-203. § cause of action section “does not an that this support independent Furthermore, faith.” failure to or enforce good perform for bad faith to elsewhere limits damages UCC implicitly thereof, which does not as a “suffered proximate consequence” Ark. Ann. 4-4-103(e). include Code punitive damages. award loss of Goodwin competent authority UCC, four of the under together chapter *18 tort, the fact that did not indicates plead independent in this case is that the claim for unsupported by law,” rule of as the UCC or “other 4-1- required by by any § 106(1). if were recoverable in law in a case
But even Gordon, this, viewed in the such as the evidence light presented by him, does not show malice or conscious most favorable any bank’s Wallace. on the of the wrongdoing part employee agent, there is no that Wallace acted intentionally, proof Granted was other than to “roll back” the transaction so that purpose of the former in the check “Gordon rights partners respective Farms” could be determined. After the charge-back, Wallace neither Gordon nor Wallace retained any proceeds is Wallace’scon- check. Such to Gordon malicious. damage hardly duct, statute, is not the of conduct while under the type wrongful v. SeeMcClellan that the civil law damages. punishes exemplary Brown, Indeed, more Ark. at 31-32. this case nothing 276 presents remedies 4-4-215(d) than a commercial which simple dispute,
1067 in these circum- bank’s duty making collecting and clear See Ark. Code Ann. stances as possible. straightforward 4-l-102(2)(a). Daniel this dissent. K. LeAnne joins Special Justice SLATER, E. Claude MURDOCK v. Charles Jr. S.W.2d 540
96-686 of Arkansas Court Supreme delivered December Opinion