Hardin v. Bishop

Cite as 2013 Ark. 395

SUPREME COURT OF ARKANSAS
No. CV-12-1037

CHARLOTTE HALL HARDIN, TROY Opinion Delivered October 10, 2013
GENTRY GUTHREY, AND
ENTERGY ARKANSAS, INC. APPEAL FROM THE JEFFERSON
APPELLANTS COUNTY CIRCUIT COURT
[NO. CV-11-556-5]
V.
HONORABLE JODI RAINES
DENNIS, JUDGE
INDIA BISHOP
APPELLEE REVERSED AND REMANDED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellants Charlotte Hall Hardin, Troy Gentry Guthrey, and Entergy Arkansas, Inc.,

appeal an order of the Jefferson County Circuit Court granting summary judgment in favor

of appellee India Bishop. For reversal, appellants argue that the circuit court erred in its

ruling and in dismissing appellants’ claims for double damages, pursuant to Arkansas’s fire-

prevention statute found at Arkansas Code Annotated section 20-22-304 (Repl. 2005). We

accepted certification from the court of appeals and have jurisdiction pursuant to Arkansas

Supreme Court Rule 1-2(b)(6) (2013). We reverse and remand for further proceedings.

In March 2011, Randy Wardlaw, Bishop’s ex-husband and the father of Bishop’s two

children, lived in a rental house on Bishop’s property located east of Pine Bluff. The two

were married from 1969 to 1975 and remained close friends over the years. Wardlaw

occasionally performed tasks for Bishop, who had been ill, and these tasks included cleaning

out ditches, bush-hogging, weed eating, and grading on her property. On March 11, 2011,
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Wardlaw burned dead vegetation in a drainage ditch on Bishop’s property. Bishop’s

farmland adjoined property, including several permanent structures, that belonged to her

sister, Hardin. The fire burned out of control and spread onto the premises of American Tire

& Truck Repair, a building owned by Hardin and rented to Guthrey for his business, where

it caused a $326,000 loss, and the fire also destroyed $12,977.42 in electrical equipment

owned by Entergy that was stored inside the building.

Subsequently, appellants Hardin and Guthrey filed a complaint against Bishop and

Wardlaw alleging Wardlaw’s negligence and sought to recover damages, including double-

damage recovery, pursuant to section 20-22-304. Bishop answered and filed a motion for

summary judgment, claiming that no question of material fact existed because Wardlaw

caused the damages. She also asserted that Wardlaw was not her agent and that she could not

be held liable for his actions. Alternatively, Bishop moved for partial summary judgment on

the issue of double damages and requested the court to rule that section 20-22-304 did not

apply to her case. With her motion for summary judgment and brief in support, Bishop

attached (1) appellants’ complaint, (2) excerpts from Wardlaw’s deposition, (3) excerpts from

her own deposition, and (4) a letter from Hardin and Guthrey’s counsel.

Appellants responded that Bishop’s motion for summary judgment included questions

of fact relating to (1) whether a principal-agent relationship existed between Bishop and

Wardlaw, (2) whether Bishop breached her duty as a property owner by allowing ultra-

hazardous activity on her property, and (3) whether Bishop could be held strictly liable for

the damages caused by hazardous activity. In support, appellants attached Wardlaw’s

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deposition testimony stating that he started the fire to clean a ditch on Bishop’s property; that

he did such things for her from time to time; that she would tell him if she did not want him

to do something; that he box-bladed and bush-hogged her parking lots and properties; that

she did not pay him because it would endanger his unemployment check; that he had

previously burned her property as a way of cleaning it; that he was sure that Bishop was

aware of the fact that he burned the property; and that he did not think that any burning was

outside his authority. In addition to Wardlaw’s deposition, appellants attached an affidavit

from Royce Heritage, who stated that Wardlaw told him that Bishop had told him to set the

fire. Appellants attached other exhibits, which included Hardin’s affidavit with an attached

aerial photograph; an affidavit of Hardin’s husband, T.C. Hardin; a loss estimate on the

American Tire & Truck Repair building; an itemized valuation of the inventory and

equipment destroyed by the fire; Wardlaw’s conviction record; appellants’ second amended

and substituted complaint; and Bishop’s deposition testimony. Additionally, after Bishop

filed her motion for summary judgment, appellant Entergy intervened, alleging damages

totalling $12,977.42. Appellant Entergy moved to have Bishop’s motion for summary

judgment deemed filed against it and to adopt the responses and arguments of other

appellants.

On September 14, 2012, after a hearing on the matter, the circuit court entered a

default judgment against Wardlaw, ordering him to pay Hardin $228,900 plus costs and to

pay Guthrey $453,750 plus costs and interest. Additionally, on September 25, 2012, the

circuit court entered an order generally granting Bishop’s motion for summary judgment but

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did not offer a specific basis for its ruling. The circuit court also entered an order granting

summary judgment against appellant Entergy. Appellants timely filed a notice of appeal with

the court of appeals.

We accepted certification of this case from the court of appeals because of an issue

presented by Bishop. In her brief, Bishop argues that appellants failed to obtain a ruling from

the circuit court on the issues raised in their appeal, and therefore, this court is procedurally

barred from addressing the merits of appellants’ appeal. Specifically, Bishop contends that

appellants failed to obtain a ruling from the circuit court because it merely found that no

genuine issues of material fact existed. It is true that, in its order, the circuit court generally

granted Bishop’s motion for summary judgment without ruling specifically on the arguments

presented in the parties’ motions, briefs, and oral arguments. Although the circuit court did

not expressly state the basis for its grant of summary judgment, the primary argument

advanced below by Bishop was that she could not be held liable to appellants because

Wardlaw did not act as her agent at the time of the fire. Appellants assert that summary

judgment was improper because the issue of whether Wardlaw acted as an agent for Bishop

was a genuine issue of material fact yet to be determined.

The circuit court granted summary judgment pursuant to Arkansas Rule of Civil

Procedure 56 (2012), which provides as follows:

(2) The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law on the issues
specifically set forth in the motion.

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(Emphasis added.) In accomplishing its review of a summary-judgment motion, the circuit

court is not required to make findings of fact and conclusions of law, pursuant to Rule 52(a)

of the Arkansas Rules of Civil Procedure. Rule 52(a) plainly states that “[f]indings of fact and

conclusions of law are unnecessary on decisions of motions under these rules.” Ark. R. Civ.

P. 52(a) (2013). However, when a case does not involve a motion, we typically adhere to our

well-established principle that the failure to obtain a ruling on an issue at the trial court level

precludes a review of the issue on appeal. Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333,

896 S.W.2d 433 (1995); Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

In the present case, Bishop raised the sole ground of agency in her motion for summary

judgment and, as an alternative ground for partial summary judgment, the issue of double

damages. The parties clearly raised the agency issue in motions before the circuit court and

attached exhibits in support. The parties also argued the issue to the court at the summary-

judgment hearing. As a result, the circuit court’s order states that it made its findings “[b]ased

upon the adopted pleadings and argument of counsel” in ruling that “no genuine issue of

material facts exists.” Thus, the circuit court’s grant of summary judgment encompassed the

sole issue of agency presented to it in the motions, briefs, and arguments by counsel at the

hearing. Because it granted summary judgment on agency, the court did not need to rule on

the alternative ground of damages. Therefore, pursuant to Rule 52(a), we conclude that the

circuit court was not required to make specific findings of fact and conclusions of law, and the

failure to do so does not preclude our appellate review of the order granting summary

judgment.

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However, we recognize a line of summary-judgment cases in which the circuit courts

have granted summary judgment, and on appeal, we have held that, because the circuit courts

made no specific ruling on numerous claims, we were precluded from considering the issues

on appeal. See e.g., In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006); Hanks v.

Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d

559 (1997).1 To the extent that those cases and their progeny are inconsistent with the

holding in the present case, we overrule them. See Jackson v. Ivory, 353 Ark. 847, 862, 120

S.W.3d 587, 596 (2003) (holding that a circuit court’s order stating that “[t]here was no

genuine issue as to any material fact” was sufficient to preserve appellant’s issue on appeal

when the issue had been presented to the circuit court).

We now reach the merits of appellants’ arguments. For the first point on appeal,

appellants argue that the circuit court erred in granting Bishop’s motion for summary

judgment on the basis that no genuine issue of material fact existed. Appellants claim that,

notwithstanding Bishop’s assertions, there was ample proof to create a jury question that an

agency relationship existed between Bishop and Wardlaw. In response, Bishop contends that

the circuit court properly granted her motion for summary judgment, finding that she could

not be vicariously liable for the alleged negligent acts or omissions of Wardlaw.

The law is well settled that summary judgment is to be granted by a circuit court only

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We do not implicate our holding in Arkansas Lottery Commission v. Alpha Marketing,
2012 Ark. 23, 386 S.W.3d 400, where we held that the circuit court’s failure to make an
express ruling on the issue of sovereign immunity precluded the Commission from
immediately appealing the order. In that case, sovereign immunity was the basis of our
jurisdiction, and as such, that finding was necessary for our review.

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when it is clear that there are no genuine issues of material fact to be litigated, and the party

is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233,

381 S.W.3d 811. Once the moving party has established a prima facie entitlement to

summary judgment, the opposing party must meet proof with proof and demonstrate the

existence of a material issue of fact. Id. On appellate review, we determine if summary

judgment was appropriate based on whether the evidentiary items presented by the moving

party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto.,

Inc., 2011 Ark. 157, 381 S.W.3d 21. We view the evidence in the light most favorable to

the party against whom the motion was filed, resolving all doubts and inferences against the

moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits

and documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012

Ark. 157, 400 S.W.3d 701.

A party asserting the existence of an agency relationship has the burden of proving that

an agency relationship exists. Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996). The

two essential elements of an agency relationship are (1) that an agent have the authority to act

for the principal, and (2) that the agent act on the principal’s behalf and be subject to the

principal’s control. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994).

Ordinarily, agency is a question of fact to be determined by the jury; but where the facts are

undisputed, and only one inference can be reasonably drawn from them, it becomes a

question of law. Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963). Agency can be

proved by circumstantial evidence, if the facts and circumstances introduced into evidence are

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sufficient to induce in the mind of the finder of fact the belief that the relation did exist and

that the agent was acting for the principal in the transaction involved. Id. Mere relationship

or family ties, unaccompanied by any other facts or circumstances, will not justify an inference

of agency, but such relationship is entitled to great weight, when considered with other

circumstances, as tending to establish the fact of agency. Schuster’s, Inc. v. Whitehead, 291 Ark.

180, 722 S.W.2d 862 (1987); Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d

449 (1942).

Bishop relies on Taylor, supra, for the proposition that the question of agency between

appellant Taylor and the tortfeasor, Willis, survived summary judgment and went to the jury.

In Taylor, the circuit court denied summary judgment and allowed the question of agency

between Taylor and Willis to go to the jury. This court reversed, holding that, as a matter

of law, Taylor’s degree of control over Willis was not enough to qualify as an agent. Id.

However, the case at bar is distinguishable from Taylor, supra, because of its procedural

posture. We have stated that the object of summary-judgment proceedings is not to try the

issues, but to determine if there are any issues to be tried. Walls v. Humphries, 2013 Ark. 286,

___ S.W.3d ___. The standard is whether there is evidence sufficient to raise a factual issue,

rather than evidence sufficient to compel a conclusion on the part of the fact-finder. Wallace

v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Here, the circuit court determined that there

were no issues to be tried, and as a result, a jury never heard the facts or applied agency

principles because the circuit court granted summary judgment. Therefore, Taylor, supra, is

inapplicable in our review of the case at bar.

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In the present case, appellants met proof with proof and demonstrated the existence

of a material issue of fact as required by this court in summary-judgment cases. Couch v.

Farmers Ins. Co., Inc., 375 Ark. 255, 289 S.W.3d 909 (2008); Gray v. Mitchell, 373 Ark. 560,

285 S.W.3d 222 (2008). In doing so, appellants presented the following exhibits in response

to Bishop’s motion for summary judgment. First, appellants cited Wardlaw’s deposition

testimony stating that he and Bishop were best friends. Wardlaw testified that he burned

Bishop’s land to clean it, performed bush-hogging, and used a box blade to grade Bishop’s

parking lots and roads. He admitted that he had burned off the same area one to two years

ago and that he did not tell Bishop about the burning on her property but that she would

have seen the results. Wardlaw also admitted that if Bishop had paid him, it would have

endangered his unemployment check. Second, Royce Heritage, a witness to the fire, swore

in an affidavit that Wardlaw told him on the day of the fire that Bishop had instructed him

to set the fire. Third, appellants presented deposition testimony from Bishop stating that

Wardlaw would have needed her permission to conduct a dangerous activity such as burning

tall grass or brush. Thus, a factual question regarding Bishop’s authorization and control over

Wardlaw remains to be answered. Based on this conflicting testimony, we conclude that

genuine issues of material fact exist regarding the issue of whether Wardlaw acted as an agent

of Bishop. For these reasons, we hold that the circuit court improperly granted Bishop’s

motion for summary judgment. Accordingly, we reverse and remand for further proceedings.

For the second point on appeal, appellants argue that the circuit court erred in

dismissing their claims for double damages. Because we reverse and remand for further

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proceedings on the issue of agency, we decline to reach the merits of appellants’ claims for

double-recovery argument, pursuant to section 20-22-304. Thus, the issue of damages is not

ripe for our review, and we reverse and remand for further proceedings.

Reversed and remanded.

BAKER, J., concurs.

Gibson & Keith, PLLC, by: C.C. “Cliff” Gibson, III; and
Walter Whit Barton, for appellants Charlotte Hall Hardin and Troy Gentry Guthrey.

Friday, Eldredge & Clark, LLP, by: Jamie Huffman Jones; and
William Webster Darling, for appellant Entergy Arkansas, Inc.

Barber, McCaskill, Jones & Hale, P.A., by: Micheal L. Alexander and Rick Behring, Jr., for
appellee.

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