LES MARLOW, BROOKS “CHIP” MEADOWS, CARY MARLOW, CHAD MARLOW, аnd LEIGH CARSON v. UNITED SYSTEMS OF ARKANSAS, INC. and GLENN PETKOVSEK
No. CV-13-185
SUPREME COURT OF ARKANSAS
November 14, 2013
2013 Ark. 460
HONORABLE JAMES LEON JOHNSON, JUDGE
Opinion Delivered November 14, 2013; APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. CV-08-2078]; AFFIRMED; COURT OF APPEALS OPINION VACATED.
Appellants Les Marlow, Brooks “Chip” Meadows, Cary Marlow, Chad Marlow, and Leigh Carson appeal an order of the Pulaski County Circuit Court granting appellee Glenn Petkovsek‘s mоtion for attorney‘s fees and costs.1 Petkovsek was granted $164,758.90 for his defense in the lawsuit initiated by appellants. Appellants originally appealed the circuit court‘s order to our court of appeals, which affirmed. See Marlow v. United Sys. of Arkansas, Inc., 2013 Ark. App. 100. Appellants then petitioned for review, which this court granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Orr v. Hudson, 2010 Ark. 484, 374 S.W.3d 686. Appellants present two points on appeal. They first argue that Petkovsek is not a prevailing party because the
The pertinent facts are these. In 2008, Les Marlow filed a complaint against Glenn Petkovsek and United Systems of Arkansas, Inc., for breach of contract and breach of the duties of good faith and fair dealing implied within that contract. Additionally, each appellant filed a claim of wrongful termination in violation of public policy against Petkovsek and United Systems. Various counterclaims were filed against аppellants, including breach of contract, breach of fiduciary duty, and conversion.
The jury entered verdicts in favor of United Systems on its claims, but awarded zero damages. The jury found that the plaintiffs failed to prove their claims and entered defense verdicts for Petkovsek and United Systems. Subsequently, United Systems and Petkovsek filed a motion for attorney‘s fees and costs. Upon considering the motion and after holding a hearing on the same, the circuit court found that both were entitled to fees and costs; however, the circuit court ultimately awarded them only to Petkovsek. Appellants now appeal that award.
For their first point on appeal, the appellants assert that the circuit court erred in finding that Petkovsek was a prevailing party because he was “irrelevant” both to the breach-of-contract claim and to the claim of wrongful discharge against public policy. Unfortunately, this is the exact opposite of what they claimed in circuit court. These appellants specifically
Defendant, Glenn Petkovsek, breached the contract USOA had with Mr. Marlow.
. . . .
Defendants’ termination of Plaintiff Les Marlow breached the implied covenant of good faith and fair dealing . . . .
. . . .
Defendants breached the written contract . . . .
. . . .
The acts of the Defendants in terminating the Plaintiffs . . . constitute wrongful discharge.
. . . .
The acts of the Defendants ... constitute the tort of outrage . . . .
. . . .
Defendants’ conduct proximately caused damage to the Plaintiffs . . . .
. . . .
As a рroximate result of Defendants’ actions, Plaintiffs have suffered . . . .
. . . .
As a proximate result of Defendants’ actions, the Defendants should be assessed punitive damages . . . .
However, once a jury of twelve found these clаims had no merit and specifically determined that Petkovsek could not be held individually liable, appellants want to argue that Petkovsek was irrelevant to their claims. More importantly, they want to argue that beсause he was irrelevant to their claims, the circuit court erred in finding that he was a prevailing party.
We will not reverse the circuit court on this point for two reasons. First, the appellants are limited by the scoрe and nature of the arguments and objections presented at trial. See Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. Furthermore, it is well settled in Arkansas that, under the doctrine of invited error, an appellant may not complain of an erroneous action on appeal if he or she induced the action. See Riley v. State Farm Mut. Auto. Ins. Co., 2011 Ark. 256, 381 S.W.3d 840 (citing Daniels v. Cravens, 297 Ark. 388, 390, 761 S.W.2d 942, 943 (1988)).2
Appellants additionally argue that attorney‘s fees and costs are not available to a prevailing party in a wrongful-discharge against public-policy case. We disagree.
It is undisputed in the instant case that appellants were at-will employees. This court has held that an at-will employee has a cause of action for wrongful discharge if they were fired in violation of well-established public policy of the state. See Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). This very cause of action was asserted against the appellees in addition to a claim for breach of contract. Appellees were forced to defend the lawsuit and ultimately prevailed.
In Sterling, supra, we also determined that this cause of action would sound exclusively in contract.3
For all the above-stated reasons, we affirm the circuit court‘s award.
Affirmed; Court of Appeals opinion vacated.
BAKER, HART, and HOOFMAN, JJ., dissent.
When an employee‘s contract of employment is for an indefinite term, either party may terminate the relationship without cause or at will. Id. at 245, 743 S.W.2d at 383. An at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. Id. at 249, 743 S.W.2d at 385. The public-policy exception, however, is a limited excеption to the employment-at-will doctrine and is not meant to protect merely private or proprietary interests. Tripcony v. Ark. Sch. for the Deaf, 2012 Ark. 188, at 9, 403 S.W.3d 559, 563. A public-policy-discharge action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for an act done in the public interest. Sterling Drug, 294 Ark. at 249, 743 S.W.2d at 385.
Heretofore, Arkansas law in this area has been consistently applied to deny attorney‘s fees when the cause of action is based on a legal fiction of implied contract or quasi contract. The action for wrongful discharge is based on an implied contract or quasi contract, that is, a legal fiction prohibiting employers from firing employеes for acts protected by public policy. We have never awarded attorney‘s fees under section 16-22-308 when the contract is a legal fiction. Had the General Assembly wanted attorney‘s fees to be аwarded based on legal fictions, it would have amended the statute to so reflect.
Further, the majority also errs in failing to give due consideration to appellants’ argument that Petkovsek was not the prevailing party. This court has recognized that the prevailing party is determined by analyzing each cause of action and its subsequent outcome.
Here, appellants sued not only for wrongful termination, but also for the tort of outrage. Petkovsek counterclaimed for fraud, breach of fiduciary duty, unjust enrichment, and conversion—all causes of action that did not sound in contract. When оne looks at the case as a whole, it was much more of a tort case than a contract action. Attorney‘s fees are not recoverable in tort cases. Carter v. Cline, 2013 Ark. 398, ___ S.W.3d ___. Further, with both of the parties walking away empty-handed, I cannot say that the trial court did not abuse its discretion when it awarded attorney‘s fees.
BAKER, J., joins in this dissent.
CLIFF HOOFMAN, Justice, dissenting. I must respectfully dissent from the majority‘s decision to affirm the award of attorney‘s fees to Petkovsek. While this court held in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), that a cause of action for wrongful discharge sounds in contract, not tort, attorney‘s fees were not at issue in that case. I disagree that a claim based solely on an implied contract, such as a wrongful-discharge claim, falls within the ambit of
BAKER and HART, JJ., join this dissenting opinion.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; and The Brad Hendricks Law Firm, by: Lloyd W. “Tré” Kitchens, for appellants.
Newland & Associates, PLLC, by: Joel F. Hoover and Elizabeth C. Abney, for aрpellees.