*1 Sаles, Mike and Mike WOODALL Woodall Auto SALES, Inc. v. CHUCK DORY AUTO INC. 01-659 Court of Arkansas Supreme delivered December
Opinion *2 Eichenbaum, PA., Heister, Heister, Liles & Peter B. for by: appellant. P.A., Dixon,
Dover O’Quinn, & M. Darren by: appellee. R which memorializes a directed verdict in Mike Appellants OBERT L. Justice. Brown, Sales, Mike Woodall Auto Inc. (Woоdall), from a appeal favor of appellee Sales, Chuck Auto Inc. and awards (Dory), Dory damages $102,230. a counterclaim in the amount of Woodall’s one point concerns whether erred appeаl granting *3 directed verdict in favor of when the loans at issue carried Dory, with them a usurious interest rate. We reverse the and judgment remand for further proceedings. 15, 1998, On December Woodall filed a which was complaint, matter, fоllowed an amended and asserted that complaint 1995, 1996, during years made short term Dory loans to him business “virtually every which from day” ranged $50,000 $125,000 to for car day titles. The term of per exchange loan, each he was one business alleged, typically day.Dory charged him title, interest in the amount $75.00 and the per typical loans, interest from paid day $375 $800. These he per ranged contended, violated Article 13 of the Arkansas Constitution in § that the interest assessеdexceeded the rate of five above the percent Federal Thus, Discount Rate at the time of the contracts. he con- cluded, the interest, loans were void with and he respect unpaid was entitled to twice the interest on the usurious loans. answered and the affirmative Dory defenses of pled compara- fault, laches, tive release, set-off, estoppel, statute of payment, frauds, limitations, waiver, statute of оther matter constitut- any an avoidance or affirmative ing for defense. He also filed a counterclaim for three checks which Woodall made to him payable but which were returned for insufficient funds. The three chеcks $102,230. totaled value, $204,460. claimed twice their or 2, 2001, On February held a bench trial on judge the matter wife, and heard from Woodall and his Renae testimony Bank, Woodall. An Howell, Ms. Karen who employee Regions witness, a was defense was taken out of turn and testified to the amount of the Woodall checks returned for insufficient funds. At the close of Woodall’s moved for a directed judge not made a case for that Woodall had usury, verdict grounds interest, and that the transactions were title was not fee $75 per circuit ruled: sales.1The that both of these were
It be the of the Court ruling parties will at arms one with the dealing length, They businessmen. — title transfer of knew that there was no or transfers They other. there was no floor contract between titles or possessions; plan them. it, I there no written kind
And understand was agreement them, notes, between no no floor no no drafting agreement, plan, call, what I’m whiсh one of called in nothing except going you briefs, fee, a transaction which these your gentlemen agreed upon carried till at start of this which out end of it they very fee, dollars, was a transaction with a hundred starting ending interest, vehicle. And I’m to rule that that going per that was that was made for the of transact- simply charge purpose business. ing Dory’s counterclaim, objection
The further ruled on without Woodall:
Well, based I think be upon ruling, [Dory] would entitled to $102,230. counterclaim of [his] me, just It’s inconceivable to gentlemen, these folks could go *4 of, correct, three a through years total if are transacting my figures $62,550,464 $357,700 worth of business with in transaction fees and all at once when the being paid, defendant out оf goes [sic] minute, business he starts wait a I’ve been too crying charged — much. It’s it’s me to think that just beyond these did not people know what If there they was I think doing. something illegal, even condoned it. But I don’t at they think that there point with this. anything wrong 21, was entered on 2001. Judgment February as his sole that the circuit urges, point appeal, erred in that the title did not consti- finding charge per tute interest and in his We dismissing complaint. agree. motion than for a directed verdict. [1] as onе Ark. R. Civ. P. for dismissal. 50(a) Accordingly, provides that in a for the balance nonjury a opinion, party moves we will refer to the to dismiss rather 264 review, The standard of when the of a motion for grant involved, directed verdict or motion to dismiss is is important
resolution of have this case. We set forth that standard: previously In whether a directed determining verdict should have been we review the evidence in granted, most favorable light against whom the verdict is and party sought it its give highest value, into account all probative taking reasonable inferences Stores,Inc., 139, deducible from it. v. Wal-Mart Lytle 309 Ark. 827 S.W.2d 652 A (1992). motion for directed verdict should be granted if there is no substantial only evidence to a jury support 14, Stores, Inc.,
verdict.
v. Wal-Mart
Mankey
Ark.
(1993).
Where the evidence is such that fair-minded persons
conclusions,
reach different
might
then a
is
jury question presented,
and the
Hicks,
directed verdict should be reversed. Howard v.
112,
In wife, the case at Woodall, Woodall and his Renae described their standard business with way Accord- Dory. Woodalls, each ing afternoon Renae Woodall would place four to certificates of title eight for vehicles in separate envelopes make, model, with the vehiclе’s marked on the year front of the sheet envelope print the value computer of each showing vehicle. of the Assignments certificates of title were not completed, of the vehicles did not possessiоn hands. No other change documentation was included in of the The enve- envelopes. and sheet were driver, delivered lopes at which time Dory by would write a check to Woodall for the total value payable those vehicles and send it back to Woodall means of the same *5 driver. Woodall would check. The next deposit Dory’s morning, Woodall would what he described as a loan to repay Dory, together with a transaсtion fee $75 of vehicle which he described as per interest. Thus, then returned Dory the to Woodall. envelopes
265 the loans was usurious interest on that a case for maintains Woodall made. brief before this court cаse in his counters Woodall’s Dory call and did not made a the circuit credibility arguing a convicted felon out that Woodall was He
believe Woodall. points he was the comment in a had made previous depositiоn.that evidenced had sold which the titles Dory,]” back “buying [he] [to loans, that he sales, had taken underscores paid place. basis, on a the for these vehicles daily got the fair market value title, his trouble. a transaction fee for of and was certificates the has taken are three with There problems position First, own words do not reveal in this case. judge’s the based on the Sec he decided this case credibility parties. had, held that such a consideration if the we have even ondly, of in a motion to dismiss is not credibility appropriate And, the case. See Swink v. the close of Giffitt, supra. plaintiffs as to these transactions were sales never testified why thirdly, Dory and not loans. a definition of what turn then to our caselaw for We In & Loan Ass’n v. Mack Trucks constitutes interest. Arkansas Sav. 264, Inc., examined Arkansas, Ark. we (1978), 566 S.W.2d interest. In whether a fee deemed “service actually charge” Boswell, so, v. we relied on our decision of Sosebee prior doing we had set which (1967), previously when additional are forth two charges determining principles the lender must be treated as interest: exacted (1) “any profit the сontrol of interest if it not within contingency depends upon “the cannot debtor[,]” (2) moneylender impose upon overhead in fact constitute lender’s borrower charges Ass’n, Arkansas Sav. & Loan or costs expenses businеss[.]” 267-68, Boswell, at 130 Sosebeev. 263 Ark. at (quoting defini this court has Additionally, recognized following supra). tion of interest: money The which is borrower of compensation paid by use,
lender for its a debtor to his creditor generally, by for his detention of the debt. recompense 580, 585, 249 v. PersonalFin. Co. Pine 220 Ark. Winston Bluff, Bouvier’sLaw (1952) S.W.2d Dictionary). (quoting testified that the attached to each charge the use of the certificate of title was a fee money. paid Dory *6 This the оf testimony plus daily practice exchanging money between the men that two constituted substantial evidence fee “cost business” or doing “compensation lender for the use of the on based the evi- money.” Accordingly, dence when before the circuit motion dismiss was judge made, we are convinced that there was evidence the $75 substantial Moreover, was interest. because the circuit charge dismissed judge Woodall’s before his wе are not complaint presented to what have been privy Dory’s testimony might regarding why these than transactions sales rather loans. surface, least, the On the circuit concluded that judge Woodall and were businessmen at arm’s who dealing length had established for business and process when only matters did he raise the began go awry usury be, accusation. That but this state’s may as set policy usury against out in our constitution is no mandatory provides exception businessmen. The standard is knowledgeable made whether Woodall evidence, a case substantial when is supported by proof viewed in the most to him and favorable is light its proof given value. We cannot that he nоt. highest did Nor can probative say we made, when the motion say to dismiss was fair-minded people would all That, have reached the same conclusion Woodall. against course, the test for is reversal. See Storеs, Morehartv. Dillard Dep’t we reverse the supra. and remand the Accordingly, judgment case for further a new trial if proceedings, including necessary. We further reverse and remand the Dory’s favor for the checks returned for insuffiсient in the funds amount of $102,230. At this we cannot tell stage, whether that amount includes the $75 transaction fees. That issue needs to be resolved on remand.
Reversed and remanded.
IMBER, not J., participating. Arnold, dissents. C.J.,
w consideration H. “Dub” Chief I Justice, dissenting. ARNOLD, agree has, indeed,
with the that this Court majority held the trial of the is judge credibility parties a motion for appropriate directed verdict or to dismiss at the close of the See s case. Swink v. plaintiff Giffin, However, 970 S.W.2d (1998). limitation the trial judge to be able to consider when the everything,including credibility, me, unrealis- trial, not to mention is a bench disconcerting trial is or not the has determine whether plaintiff is to tic. When trial, should be the trial in a bench his burden of met proof *7 I am bothered credibility. to assess all including аble things, consideration. on the trial court’s restriction dissent. I therefore must respectfully Arkansas; v. STATE of Allen HAMMON Roger Arkansas; Michael v. State of Jackson v. State of Arkansas William Eugene Langley 00-1259; 00-1383; CR CR 00-1275 CR of Arkansas Court Supreme delivered December Opinion delivered Substituted January Opinion [Amended 2002]