Gerald Eubanks v. JAG Consulting and Glad Industries, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-910

May 4, 2005

GERALD EUBANKS AN APPEAL FROM ASHLEY COUNTY

APPELLANT CIRCUIT COURT

[CV 96-296-4]

v.

HONORABLE DON GLOVER,

JAG CONSULTING and CIRCUIT JUDGE

GLAD INDUSTRIES, INC.

APPELLEES REVERSED and REMANDED

Andree Layton Roaf, Judge

This is the second appeal of this conversion case. In the first appeal, this court reversed and remanded for a new trial because of the use of an improper measure of damages and another error. JAG Consulting v. Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002). In this appeal, appellant Gerald Eubanks argues that the trial court erred in granting the motion in limine of appellee JAG Consulting because the motion had the effect of preventing Eubanks from presenting any proof at trial and resulted in a directed verdict against him. We agree, and reverse and remand for further proceedings.

The factual background of this case is set forth in detail in our earlier opinion relating to the first appeal. Consequently, our discussion here is limited to the following developments since the first appeal. On remand, JAG amended its answer to assert the affirmative defenses of res judicata, collateral estoppel, and law of the case. JAG also filed a motion in limine seeking, inter alia, to preclude Eubanks from presenting evidence on loss-of-use damages; from presenting evidence on the issue of punitive damages; and from presenting evidence, based on res judicata, collateral estoppel, and law of the case, that all of his tools and equipment were not returned to him. At the hearing on the motion, JAG asked the trial court to rule as a matter of law that all of the items seized from Eubanks had been returned to him and, therefore, he had not suffered any damages. The argument was based on the following statement in the opinion on the first appeal:

The tools and equipment seized during the search were delivered to [JAG] where its employees went through the seized items and identified those that did not belong to [JAG]. Those items were returned to the Sheriff's Department and later to [Eubanks].

JAG Consulting, 77 Ark. App. at 237, 72 S.W.3d at 552. Eubanks argued that he only received a few undisputed items, such as a rented air compressor and a hammer returned the morning of the first trial. He also argued that, if this court had held that he had received all of his personal property, this court would have reversed and dismissed the case instead of remanding the case for a new trial. The trial court interpreted the language in this court's opinion as stating that Eubanks's property was returned to him. The trial court ruled that the law of the case precluded Eubanks from presenting evidence that the items seized by the sheriff's department at JAG's behest were not returned to him. Eubanks then stated that, in light of the trial court's ruling on the motion in limine, he could not proceed. JAG moved for a directed verdict, which was granted. The trial court dismissed Eubanks's complaint with prejudice, and this appeal followed.

Eubanks's sole point on appeal is that the trial court erred in granting the motion in limine. He does not challenge the trial court's grant of the directed verdict; in fact, he acquiesced in a dismissal so he could appeal the trial court's ruling on the motion in limine.

As a preliminary matter, we believe that the order appealed from is an order of involuntary dismissal under Ark. R. Civ. P. 41(b), rather than a directed verdict because trial had not yet commenced. Our standard of review of such a dismissal is whether the trial court abused its discretion. Gore v. Heartland Cmty. Bank, 356 Ark. 665, 158 S.W.3d 123 (2004); Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). Likewise, rulings on the admission of evidence are reviewed for an abuse of discretion. O'Fallon v. O'Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).

We hold that the trial court abused its discretion in excluding Eubanks's evidence. JAG's motion in limine was an improper use of such a motion. Motions in limine are not to be used as a sweeping means of testing issues of law. Such motions are to be used to prevent some specific matter, perhaps inflammatory, from being interjected prior to the trial court's having decided on its admissibility outside the hearing of the jury. Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987). It is not designed to choke off an entire claim or defense. Id.; Jones v. Coker, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 2, 2005). The indiscriminate use of such motions was condemned in Turner v. Northwest Arkansas Neurosurgery Clinic, P.A., 84 Ark. App. 93, 133 S.W.3d 417 (2003). Having said that, we discuss the various theories advanced by JAG in support of its motion.

Res Judicata

Res judicata means a thing or matter that has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003); JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980). Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000); Arkansas La. Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993). Res judicata bars relitigation of a subsequent suit when certain elements are met, including a prior judgment on the merits. National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999). This court reversed the trial court's first judgment and remanded the case for a new trial. There has been no final judgment on the merits, and therefore, res judicata is not applicable.

Collateral Estoppel

Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact actually litigated by parties in the first suit. Coleman's Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id. For collateral estoppel to apply, the following four elements must be met: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) that issue must have been actually litigated; 3) the issue must have been determined by a valid and final judgment; 4) the determination must have been essential to the judgment. Riverdale Develop. Co. v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). Here, as with res judicata, there has been no final judgment on the merits, and therefore, collateral estoppel is not applicable.

Law of the Case

The supreme court has described the law-of-the-case doctrine:

The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented.

Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001) (citations omitted). JAG argues that this court, on the first appeal, determined that Eubanks's tools and equipment were returned to him and that this precludes Eubanks from presenting evidence on that issue. The statement on which JAG relies was taken out of context and merely provides that the items JAG did not dispute as owned by Eubanks were returned to him. The opinion did not state that there was no dispute over other items retained by JAG. Further, even if JAG is correct that the majority of the items were eventually returned to Eubanks, it would not bar recovery of damages for their conversion but may mitigate the damages. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).

Conversion is a common-law tort action for the wrongful possession or disposition of another's property. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). In order to maintain an action to recover damages for the conversion of property, the plaintiff must show title in the property so wrongfully taken or converted. Passwater Chevrolet Co. v. Whitten, 178 Ark. 136, 9 S.W.2d 1057 (1928); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). The law generally permits the evidence of a return of the property to its owner in mitigation of damages for conversion but only when certain circumstances are present. For one thing, the owner must have accepted the return of the goods. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988) (citing Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376 (1907); Norman v. Rogers, 29 Ark. 365 (1874)). Also, the original conversion must have occurred by mistake, and the return must occur promptly after discovery of the mistake and before the commencement of an action for conversion. Id.

For these reasons, we hold that the trial court abused its discretion in granting the motion in limine. We therefore reverse the directed verdict for JAG and remand this case for trial.

Reversed and remanded.

Neal and Crabtree, JJ., agree.