dissenting. The majority concludes that the $14,200 in cash was mislaid property because it was recovered from a motel room drawer. Following the majority’s reasoning, someone meticulously wrapped forty-six one-hundred dollar bills all facing the same direction into one bundle, and meticulously wrapped 480 twenty dollar bills all facing the same direction into another bundle, then wrapped the two bundles into a block the size of a brick using masking tape, intentionally placed the $14,200 block of money into a drawer in a public' motel room, planning to later reclaim it, and then somehow forgot where he put it. As the majority notes, “the place where money or property claimed as lost is found is an important factor in determining whether it was lost or mislaid.” (Emphasis added.) As the supreme court discussed in Terry, the character of the property should be determined by evaluating all the facts and circumstances present in the particular case. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001). The majority’s failure to properly consider all the facts and circumstances present in this case leads the majority to a nonsensical result.
Likewise, I cannot agree with the majority that leaving a wallet in a drawer is in any way analogous to leaving a $14,200 block of cash in the same drawer. Unless those in the majority customarily travel with significantly larger amounts of cash in their wallets than I, there is no validity in the comparison. The nature of the property is itself sufficient to refute the notion that it was intentionally placed in the drawer and the forgotten.
This is not to say that I do not sympathize with the trial judge’s difficulty in determining the character of the property based on the scant evidence before him. The bundle of money does not fit neatly into any of the categories described in the Terry opinion. However, in Terry the money was found to be mislaid because it had been intentionally placed above the ceiling tiles of a hotel room, a place where it could be expected to remain undiscovered until the owner could return and retrieve it. This element of secreting the property in a way that suggests the owner anticipated returning to retrieve it is found not only in Terry but also in the cases upon which Terry relies. See Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995) (packets of currency recovered after removing the screws from a panel of an airplane wing); Jackson v. Steinberg, 200 P.2d 376 (Or. 1948) (currency removed from beneath the paper lining of a hotel room dresser drawer). However, this element is completely lacking in the present case, where there was no effort to conceal the money beyond placing it in a drawer. In contrast to the situation presented in Terry, here the owner of the property could be virtually certain that the money would be discovered.
The majority, employing the wallet analogy, concludes that “there is no greater reason to believe that it was lost rather than intentionally placed there and forgotten.” While this may be true, it is a very different thing than establishing “by a preponderance of the evidence” that the property was mislaid. When all of the facts and circumstances in this case are considered, they lead logically to only one conclusion; that regardless of whether the money was placed in the motel room drawer intentionally, the true owner has abandoned his interest in it.
I am authorized to state that Judge Hart joins in this dissent.