Security Pacific Housing Services, Inc. v. Friddle

866 S.W.2d 375, 315 Ark. 178, 1993 Ark. LEXIS 653
CourtSupreme Court of Arkansas
DecidedNovember 22, 1993
Docket93-180
StatusPublished
Cited by47 cases

This text of 866 S.W.2d 375 (Security Pacific Housing Services, Inc. v. Friddle) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Security Pacific Housing Services, Inc. v. Friddle, 866 S.W.2d 375, 315 Ark. 178, 1993 Ark. LEXIS 653 (Ark. 1993).

Opinion

Dqnald' L. Corbin, Justice.

Appellant, Security Pacific Housing Services, Incorporated, appeals a judgment of the Crawford Circuit Court awarding appellees, Johnny and Gwen Friddle, $16,000.00 in compensatory damages, $12,000.00 in punitive damages, and $3,000.00 in attorney’s fees. Appellant asserts six points for reversal. Only the point relating to the award of attorney’s fees has merit, therefore we affirm the part of the judgment entered pursuant to the jury’s award of compensatory and punitive damages and reverse the part of the judgment awarding the attorney’s fee.

This case began with appellant’s complaint for replevin of a mobile home appellees purchased from a third party who assigned the contract to appellant. Appellees did not file a timely answer. However, the trial court granted their motion to extend the time to file an answer. Ultimately, appellees filed an answer and counterclaim for breach of contract and conversion. Immediately, prior to trial, appellant voluntarily dismissed with prejudice its claim for replevin; however, appellees’ counterclaim for breach of contract and conversion proceeded to jury trial. Without objection and despite the dismissal of the claim for replevin, appellant was permitted to assert a right to set-off relating to the debt remaining on the mobile home. The judgment was entered pursuant to the jury’s verdict on appellees’ counterclaim.

I. MOTION TO EXTEND TIME TO ANSWER

Appellant claims the trial court abused its discretion in granting appellees’ motion to extend time to answer because appellees failed to meet their burden of proving excusable neglect or other just cause. Appellant claims the trial court’s ruling was based on conjecture and speculation and that even if they had presented evidence to support their allegations, such evidence would not have risen to the level of excusable neglect or other just cause for extending the time within which to answer. Appellant further claims that if we are persuaded by its argument and conclude the trial court erred in extending the time within which appellees could answer, we must reverse the judgment awarded on appellees’ counterclaim because the timeliness of their counterclaim is linked with the untimeliness of their answer.

We do not address the merits of this argument as appellant waived it when it voluntarily dismissed its complaint with prejudice. Immediately prior to trial, appellant voluntarily moved to dismiss its complaint with prejudice. We observe that appellant specifically requested the dismissal to be with prejudice. Appellees agreed to the dismissal with prejudice and stated the counterclaim was still pending. The trial court then granted the dismissal with prejudice. The judgment states that appellant’s complaint was dismissed with prejudice.

It is a well-settled rule of law that a dismissal with prejudice is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial. Hicks v. Allstate Ins. Co., 304 Ark. 101, 799 S.W.2d 809 (1990). It is also a well-settled rule of law that a voluntary dismissal does not affect, but leaves for adjudication other claims such as counterclaims and cross-claims. Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991); Zurich General Accident & Liability Ins. Co. v. Smith, 209 Ark. 135, 189 S.W.2d 718 (1945). Thus, it is of no consequence whether the answer and counterclaim were filed timely as it is clear that appellant’s dismissal of the complaint with prejudice constituted a final adjudication on the merits at its own request. Any errors occurring prior to the dismissal with prejudice were therefore resolved against appellant at its own request. It is fundamental that, pursuant to the doctrine of invited error, an appellant cannot request a ruling by a trial court and then complain of that ruling on appeal. See Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

By requesting and receiving a dismissal of its claim with prejudice, appellant waived any rights to assert errors relating to that claim. To allow appellant first to voluntarily dismiss its complaint with prejudice and then to appeal asserting points of error relating to issues involved in the complaint (other than any issues concerning the dismissal itself, such as whether the dismissal was with or without prejudice) would be to allow an antinomy. It would give absolutely no effect to the words “dismissal with prejudice.”

II. DIRECTED VERDICT — CONVERSION

In its brief, appellant contends the trial court erred in denying its motion for directed verdict based on insufficient evidence that it converted appellees’ mobile home. The thrust of appellant’s argument is that appellant’s repossession of appellees’ mobile home was not a conversion because appellees were in default and there was no breach of peace. Appellant relies heavily on Ford Motor Credit Co. v Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).

At the close of all evidence, appellant moved for a directed verdict stating that there was insufficient evidence by the counterclaimants and that “if there’s been a wrongful conversion because of default, we have sufficient evidence to prove a default.” ARCP Rule 50(a) mandates that a motion for directed verdict state the specific grounds therefor. Failure of a motion for directed verdict to comply with Rule 50’s requirement that the specific grounds relied on be stated is a sufficient basis for denial of the motion and for affirmance on appeal. Svestka v. First Nat’l Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980). The requirement that the directed verdict motion state the specific grounds therefor is especially necessary when a case involves multiple issues, as does the instant case. Svestka, 269 Ark. 237, 602 S.W.2d 604.

Appellees’ counterclaim included claims for breach of contract and conversion. Appellant cites us to no authority, nor are we aware of any, standing for the proposition that appellees must prove their lack of default as an element of either of the two asserted claims. Obviously, appellant is confused as to who bore the burden of proving the default in this case. Clearly, appellees were not required to prove they were not in default as an element of their claim for conversion. It was appellant’s burden to prove the default as an element of the “defense” to rightful possession of the mobile home.

By interrogatory, the jury specifically found that appellees were not in default. Appellee Johnny Friddle’s testimony was somewhat confusing and the parties therefore stipulated as to the issues to be developed through his testimony.

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Bluebook (online)
866 S.W.2d 375, 315 Ark. 178, 1993 Ark. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-pacific-housing-services-inc-v-friddle-ark-1993.