Butler v. Finley

2015 Ark. App. 48, 454 S.W.3d 766, 2015 Ark. App. LEXIS 73
CourtCourt of Appeals of Arkansas
DecidedFebruary 4, 2015
DocketCV-14-619
StatusPublished

This text of 2015 Ark. App. 48 (Butler v. Finley) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Finley, 2015 Ark. App. 48, 454 S.W.3d 766, 2015 Ark. App. LEXIS 73 (Ark. Ct. App. 2015).

Opinion

ROBERT J. GLADWIN, Chief Judge

|,Appellant Louis Butler appeals the February 21, 2014 order of the Pulaski County Circuit Court awarding appellee Lover Finley $85,286.39 in actual damages and $100,000 in punitive damages. He argues that there was insufficient evidence that he committed the tort of conversion. We affirm.

Dearel and Phyllis Wilbert, husband and wife, owned a home at 4127 Arapaho Trail Road, Little Rock, Arkansas, a rental property for them, upon which they had a mortgage. The Wilberts filed for bankruptcy and were- contacted by appellant regarding the purchase of the property. Appellant found a buyer for the home, and the Wilberts quitclaimed the property to Vicki Haynes. Haynes then quitclaimed her interest in the property to appellee, and appellee and her husband, Lurone Coakley, began making payments to Wells Fargo |2Home Mortgage, which held the mortgage on the property. The Wilberts never notified Wells Fargo that they were no longer making the mortgage payments.

Appellee purchased an insurance policy from Farmers Insurance Company on the house when she and her husband moved into it. The policy was for approximately $160,000. Subsequently, the house burned, and Farmers sent appellee a check for $81,680.80 made payable to her and Wells Fargo. Appellee endorsed the check and sent it to Wells Fargo, which paid off the mortgage balance and returned the difference, $35,286.39, to the Wilberts, whose names were listed as páy-ees on the check.

Appellee attempted to determine from Wells Fargo why her name was not on the check and contacted appellant, who arranged for appellee to meet with the Wil-berts. The parties met at a restaurant, and the Wilberts refused to endorse the check in favor of appellee.

Sometime after the first check had been sent, Wells Fargo sent a second check, also made payable to the Wilberts, directly to appellant’s office. Appellant telephoned Mrs. Wilbert and asked her to sign the check; she again refused and hung up on him. The Wilberts never endorsed any check and never authorized anyone to endorse the check. Appellant’s sister then endorsed the check and deposited the check into appellant’s personal bank account.

Appellee and her husband filed a lawsuit against Wells Fargo, the Wilberts, the City of Little Rock, and appellant. All defendants except appellant were dismissed from the case. Those dismissals are not appealed. A jury found appellant liable to appellee for conversion and awarded $35,286.39 actual damages and $100,000 punitive damages, which was reflected in |3the February 21, 2014 order. ■Appellant filed a motion for a new trial on March 6, 2014, which was deemed denied because the circuit court took no action on it. He then filed a notice of appeal on May 2, 2014.

On appeal of a denial of a motion for directed verdict, it is not an appellate court’s place to try issues of fact; the appellate court simply reviews the record for substantial evidence to support the jury’s verdict. Ark. Realtors Ass’n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845. The Arkansas Supreme Court has held thát “[a] motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.” Byme, Inc. v. Ivy, 367 Ark. 451, 456, 241 S.W.3d 229, 234 (2006) (internal citations omitted). The appellate court will defer to the jury’s resolution of the issue unless there is “no reasonable probability” for it. Unum Life Ins. Co. of Am. v. Edwards, 362 Ark. 624, 627, 210 S.W.3d 84, 87 (2005).

Arkansas Code Annotated section 4-3-420 codifies the UCC definition of conversion of a negotiable instrument as follows:

(a) The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. An action for conversion of an instrument may not be brought by
(i) the issuer or acceptor of the instrument or (ii) a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.
|4(b) In an action under subsection (a), the measure of liability is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiffs interest in the instrument.
(c) A representative, other than a depositary bank, who has in good faith dealt with an instrument or its proceeds on behalf of one who was not the person entitled to enforce the instrument is not liable in conversion to that person beyond the amount of any proceeds that it has not paid out.

Ark. Code Ann. § 4-3-420(a)-(c) (Repl. 2001).

Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. Curlen v. Henry Mgmt., Inc., 2010 Ark. App. 855. It is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Id; see also Hatchell v. Wren, 363 Ark. 107, 211 S.W.3d 516 (2005). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the owner’s rights. Gurlen, supra. The property interest may be shown by a possession or present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). The law applicable to conversion of personal property also applies to instruments. Ark. Code Ann. § 4-3-420(a).

In the present case, appellant is accused of converting a check made payable to the Wilberts by having his signature signed to the check as an endorsement, which had previously forged endorsements on it. The signatures on the back of the check, signed as Dearel Wilbert and “Phyliss” Wilbert, which appellant deposited, were not those of either Dearel or Phyllis Wilbert. They were forged by someone. Appellant’s signature, however, was endorsed by |fihis sister with his authorization. Appellant claims that his depositing the check was no different than what the third party did with respect to the real owner of the check in Schaap v. State Nat’l Bank of Texarkana, 137 Ark. 251, 208 S.W. 309 (1918), as the check in this case belonged to the Wilberts- and no one else. He argues that no one else had a right to possess the check because the Wilberts had not given anyone a possessory right to it.

Also, appellant notes that appellee testified that she had no oral agreements with the Wilberts in this case.

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Related

Buck v. Gillham
96 S.W.3d 750 (Court of Appeals of Arkansas, 2003)
Hatchell v. Wren
211 S.W.3d 516 (Supreme Court of Arkansas, 2005)
Byme, Inc. v. Ivy
241 S.W.3d 229 (Supreme Court of Arkansas, 2006)
Unum Life Insurance Co. of America v. Edwards
210 S.W.3d 84 (Supreme Court of Arkansas, 2005)
Arkansas Realtors Ass'n v. Real Forms, LLC
2014 Ark. 385 (Supreme Court of Arkansas, 2014)
Schaap v. First National Bank
208 S.W. 309 (Supreme Court of Arkansas, 1918)
Southern Trust Co. v. American Bank of Commerce & Trust Co.
229 S.W. 1026 (Supreme Court of Arkansas, 1921)

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Bluebook (online)
2015 Ark. App. 48, 454 S.W.3d 766, 2015 Ark. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-finley-arkctapp-2015.