Cite as 2015 Ark. App. 145
ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-265
DLC PROPERTIES, LLC d/b/a TWIN Opinion Delivered March 4, 2015 LAKES PLAZA, LLC APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT V. [NO. CV-2010-55-4]
HONORABLE GORDON WEBB, CARMIKE CINEMAS, INC. and JUDGE EASTWYNN THEATRES, INC. APPELLEES REVERSED AND REMANDED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED
DAVID M. GLOVER, Judge
This appeal returns to the court following our order for rebriefing. DLC Props., LLC
v. Carmike Cinemas, Inc., 2014 Ark. App. 684. With the deficiency that necessitated
rebriefing cured, we now reach the merits of this appeal.
This lawsuit arose out of a lease agreement that bound DLC Properties, LLC, d/b/a
Twin Lakes Plaza, LLC (DLC) and Carmike Cinemas, Inc., and Eastwynn Theatres, Inc.
(Carmike). On appeal, DLC argues that the trial court erred by denying its motion for
directed verdict on the claims of unlawful conversion and tortious interference with business
expectancy. DLC also contends that the trial court erred by denying its motion for new trial
because (1) the verdict violated the doctrine of election of remedies, (2) there was insufficient
evidence to support a finding of damages on the conversion claim, and (3) there was
insufficient evidence to support a finding of damages for the unlawful detainer and entry Cite as 2015 Ark. App. 145
claim. Carmike cross-appeals the trial court’s order denying its motion for attorneys’ fees.
Because we find that the trial court erred in refusing to grant DLC’s motion for directed
verdict on conversion, we grant the relief requested by DLC. We reverse and remand this
matter for a new trial and dismiss Carmike’s cross-appeal.
I. Facts
On July 25, 2008, DLC purchased a shopping mall located in Mountain Home,
Arkansas. The mall housed a movie theater that was leased and occupied by Carmike.
Carmike’s original lease began on August 18, 1977. The lease was for a term of twenty years
and included two five-year options to renew. Under these terms, Carmike’s lease would
have expired in 2008. However, Carmike and the former owner of the mall executed an
amendment to the lease in 1994. The 1994 amendment gave Carmike an additional five-
year extension on the lease—until December 31, 2013. At the time of the purchase, DLC’s
owners did not have actual knowledge of the 1994 amendment, and they erroneously
believed that Carmike was leasing the theater on a month-to-month basis.
DLC purchased the mall with the understanding that improvements to the premises
were necessary. In September 2008, DLC began negotiations with Carmike regarding new
lease terms and a remodel of the premises; these negotiations lasted for several months. It was
not until the negotiations broke down that DLC learned of the 1994 amendment to
Carmike’s lease. Additionally, the negotiations revealed that Carmike was not paying the
amount of rent required by the 1994 amendment.
On March 1, 2010, DLC locked Carmike out of the movie theater. The lock out
2 Cite as 2015 Ark. App. 145
lasted two-and-one-half days, and on March 3, 2010, Carmike filed the lawsuit that was the
source of the present appeal.
Based upon these facts, Carmike sued DLC under the theories of forcible entry and
detainer, tortious interference with business expectancy, conversion of personal property, and
breach of contract. Carmike also sought punitive damages. DLC counterclaimed for
unlawful detainer and breach of contract.
The case proceeded to jury trial on December 3–6, 2012. At the close of the
evidence, DLC moved for a directed verdict on the claims of tortious interference with
business expectancy and conversion. The trial court denied the motion, and the case was
submitted to the jury. The jury awarded Carmike $3000 for conversion, $5000 for forcible
entry, and $40,000 in punitive damages. The jury also found for Carmike on its claims for
breach of contract and tortious interference but declined to award damages for either claim.
Additionally, the jury found for DLC on its breach-of-contract claim and agreed that
Carmike was not paying the proper amount of rent but further concluded that DLC waived
its right to the proper payments. The trial court entered a judgment memorializing the jury’s
verdict, and DLC filed a timely notice of appeal of the judgment.
Following the entry of the judgment, Carmike petitioned the trial court for attorneys’
fees and costs pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999). The
trial court denied the motion, finding that neither party prevailed on the portion of this
lawsuit that involved contract issues. Carmike cross-appeals the order denying its petition
for attorneys’ fees.
3 Cite as 2015 Ark. App. 145
II. DLC’s Direct Appeal
DLC moved for a directed verdict on Carmike’s conversion and tortious-interference
claims. The trial court denied these motions, and the jury found in favor of Carmike on
both claims. It awarded $3000 for conversion and $0 for tortious interference. DLC
contends that the trial judge’s denial of these motions was reversible error.
The standard of review of the denial of a motion for directed verdict is whether the
jury’s verdict is supported by substantial evidence. Med. Assurance Co., Inc. v. Castro, 2009
Ark. 93, at 3, 302 S.W.3d 592, 595 (quoting ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276
S.W.3d 244 (2008)). Substantial evidence is that which goes beyond suspicion or conjecture
and is sufficient to compel a conclusion one way or the other. Id. In determining whether
there is substantial evidence, the court views the evidence and all reasonable inferences
arising therefrom in the light most favorable to the party on whose behalf judgment was
entered. Id.
In support of its conversion claim, Carmike only introduced evidence of gross revenue
to prove damages. Gross revenue alone is not substantial evidence of lost profits. Cinnamon
Valley Resort v. EMAC Enterprises, Inc., 89 Ark. App. 236, 202 S.W.3d 1 (2005). A party
need not show the exact amount of damages sustained. However, in proving anticipated
profits, a party must present a reasonably complete set of figures and not leave the jury to
speculate as to whether there could have been any profits. Jim Halsey Co., Inc. v. Bonar, 284
Ark. 461, 683 S.W.2d 898 (1985). Here, the only evidence presented to the jury regarding
conversion was Carmike’s gross revenue. Our case law is clear that this is insufficient
4 Cite as 2015 Ark. App. 145
evidence to support the jury’s verdict for conversion. Therefore, we find that the trial court
improperly denied the motion for directed verdict on Carmike’s conversion claim.
As a related matter, we must discuss the jury’s award of $40,000 in punitive damages
to Carmike. In law cases, two issues may be so interwoven that an error with respect to one
requires a retrial of the whole case. Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407
S.W.2d 728 (1966). This case presents this situation. The jury’s verdict is unclear as to
which tort claim or claims caused the jury to assess punitive damages. It is hardly possible
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Cite as 2015 Ark. App. 145
ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-265
DLC PROPERTIES, LLC d/b/a TWIN Opinion Delivered March 4, 2015 LAKES PLAZA, LLC APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT V. [NO. CV-2010-55-4]
HONORABLE GORDON WEBB, CARMIKE CINEMAS, INC. and JUDGE EASTWYNN THEATRES, INC. APPELLEES REVERSED AND REMANDED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED
DAVID M. GLOVER, Judge
This appeal returns to the court following our order for rebriefing. DLC Props., LLC
v. Carmike Cinemas, Inc., 2014 Ark. App. 684. With the deficiency that necessitated
rebriefing cured, we now reach the merits of this appeal.
This lawsuit arose out of a lease agreement that bound DLC Properties, LLC, d/b/a
Twin Lakes Plaza, LLC (DLC) and Carmike Cinemas, Inc., and Eastwynn Theatres, Inc.
(Carmike). On appeal, DLC argues that the trial court erred by denying its motion for
directed verdict on the claims of unlawful conversion and tortious interference with business
expectancy. DLC also contends that the trial court erred by denying its motion for new trial
because (1) the verdict violated the doctrine of election of remedies, (2) there was insufficient
evidence to support a finding of damages on the conversion claim, and (3) there was
insufficient evidence to support a finding of damages for the unlawful detainer and entry Cite as 2015 Ark. App. 145
claim. Carmike cross-appeals the trial court’s order denying its motion for attorneys’ fees.
Because we find that the trial court erred in refusing to grant DLC’s motion for directed
verdict on conversion, we grant the relief requested by DLC. We reverse and remand this
matter for a new trial and dismiss Carmike’s cross-appeal.
I. Facts
On July 25, 2008, DLC purchased a shopping mall located in Mountain Home,
Arkansas. The mall housed a movie theater that was leased and occupied by Carmike.
Carmike’s original lease began on August 18, 1977. The lease was for a term of twenty years
and included two five-year options to renew. Under these terms, Carmike’s lease would
have expired in 2008. However, Carmike and the former owner of the mall executed an
amendment to the lease in 1994. The 1994 amendment gave Carmike an additional five-
year extension on the lease—until December 31, 2013. At the time of the purchase, DLC’s
owners did not have actual knowledge of the 1994 amendment, and they erroneously
believed that Carmike was leasing the theater on a month-to-month basis.
DLC purchased the mall with the understanding that improvements to the premises
were necessary. In September 2008, DLC began negotiations with Carmike regarding new
lease terms and a remodel of the premises; these negotiations lasted for several months. It was
not until the negotiations broke down that DLC learned of the 1994 amendment to
Carmike’s lease. Additionally, the negotiations revealed that Carmike was not paying the
amount of rent required by the 1994 amendment.
On March 1, 2010, DLC locked Carmike out of the movie theater. The lock out
2 Cite as 2015 Ark. App. 145
lasted two-and-one-half days, and on March 3, 2010, Carmike filed the lawsuit that was the
source of the present appeal.
Based upon these facts, Carmike sued DLC under the theories of forcible entry and
detainer, tortious interference with business expectancy, conversion of personal property, and
breach of contract. Carmike also sought punitive damages. DLC counterclaimed for
unlawful detainer and breach of contract.
The case proceeded to jury trial on December 3–6, 2012. At the close of the
evidence, DLC moved for a directed verdict on the claims of tortious interference with
business expectancy and conversion. The trial court denied the motion, and the case was
submitted to the jury. The jury awarded Carmike $3000 for conversion, $5000 for forcible
entry, and $40,000 in punitive damages. The jury also found for Carmike on its claims for
breach of contract and tortious interference but declined to award damages for either claim.
Additionally, the jury found for DLC on its breach-of-contract claim and agreed that
Carmike was not paying the proper amount of rent but further concluded that DLC waived
its right to the proper payments. The trial court entered a judgment memorializing the jury’s
verdict, and DLC filed a timely notice of appeal of the judgment.
Following the entry of the judgment, Carmike petitioned the trial court for attorneys’
fees and costs pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999). The
trial court denied the motion, finding that neither party prevailed on the portion of this
lawsuit that involved contract issues. Carmike cross-appeals the order denying its petition
for attorneys’ fees.
3 Cite as 2015 Ark. App. 145
II. DLC’s Direct Appeal
DLC moved for a directed verdict on Carmike’s conversion and tortious-interference
claims. The trial court denied these motions, and the jury found in favor of Carmike on
both claims. It awarded $3000 for conversion and $0 for tortious interference. DLC
contends that the trial judge’s denial of these motions was reversible error.
The standard of review of the denial of a motion for directed verdict is whether the
jury’s verdict is supported by substantial evidence. Med. Assurance Co., Inc. v. Castro, 2009
Ark. 93, at 3, 302 S.W.3d 592, 595 (quoting ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276
S.W.3d 244 (2008)). Substantial evidence is that which goes beyond suspicion or conjecture
and is sufficient to compel a conclusion one way or the other. Id. In determining whether
there is substantial evidence, the court views the evidence and all reasonable inferences
arising therefrom in the light most favorable to the party on whose behalf judgment was
entered. Id.
In support of its conversion claim, Carmike only introduced evidence of gross revenue
to prove damages. Gross revenue alone is not substantial evidence of lost profits. Cinnamon
Valley Resort v. EMAC Enterprises, Inc., 89 Ark. App. 236, 202 S.W.3d 1 (2005). A party
need not show the exact amount of damages sustained. However, in proving anticipated
profits, a party must present a reasonably complete set of figures and not leave the jury to
speculate as to whether there could have been any profits. Jim Halsey Co., Inc. v. Bonar, 284
Ark. 461, 683 S.W.2d 898 (1985). Here, the only evidence presented to the jury regarding
conversion was Carmike’s gross revenue. Our case law is clear that this is insufficient
4 Cite as 2015 Ark. App. 145
evidence to support the jury’s verdict for conversion. Therefore, we find that the trial court
improperly denied the motion for directed verdict on Carmike’s conversion claim.
As a related matter, we must discuss the jury’s award of $40,000 in punitive damages
to Carmike. In law cases, two issues may be so interwoven that an error with respect to one
requires a retrial of the whole case. Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407
S.W.2d 728 (1966). This case presents this situation. The jury’s verdict is unclear as to
which tort claim or claims caused the jury to assess punitive damages. It is hardly possible
that the jury did not take each cause of action into account when assessing punitive damages.
The only way in which we can with certainty protect the appellants from the possibility of
prejudice is to grant a new trial upon all issues. Id.
Because we grant a new trial on all issues, we need not reach the merits of whether
the trial court improperly denied DLC’s motion for directed verdict on the tortious
interference claim nor do we address the propriety of the trial court’s denial of DLC’s motion
for new trial.
III. Carmike’s Cross-Appeal
Carmike cross-appealed the trial court’s finding that neither party prevailed on the
breach-of-contract issues in this lawsuit and its subsequent refusal to award attorneys’ fees
arising out of the contract claims. Because we reverse and remand this case for a new trial,
we cannot reach the merits of this issue at this time, and we, therefore, dismiss Carmike’s
cross-appeal.
5 Cite as 2015 Ark. App. 145
IV. Conclusion
For the foregoing reasons, we grant the relief requested by DLC and reverse and
remand for a new trial on direct appeal. Additionally, we dismiss Carmike’s cross-appeal.
Reversed and remanded on direct appeal; cross-appeal dismissed.
VIRDEN and GRUBER , JJ., agree.
Grayson & Grayson, P.A., by: Keith L. Grayson and Melanie L. Grayson, for appellant.
Trammell Law Firm, by: William D. Shelton, Jr., and Robert D. Trammell, for appellees.