Mason v. Jackson

Kittye MASON v. Jody JACKSON

94-1352                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1996


1.   Sales -- Article 2 of Uniform Commercial Code not applicable -
     - agreement was for personal services and not a sale. -- Where
     appellant brought tort and contract claims against appellee as
     a result of her dissatisfaction with a horse that appellee had
     helped her to purchase, the remedies prescribed in Article 2
     of the Uniform Commercial Code for a buyer against a seller of
     goods were not applicable because the positions of appellant
     and appellee were not those of buyer and seller; the agreement
     was for personal services and not for a sale.

2.   Products liability -- statutory product-liability remedies not
     applicable -- parties did not fit requisite categories. --
     Where appellant brought tort and contract claims against
     appellee as a result of her dissatisfaction with a horse that
     appellee had helped her to purchase, the product-liability
     remedies found in Ark. Code Ann.  16-116-101 through 16-116-
     107 (1987) were not applicable because they were for buyers
     against manufacturers and suppliers and for suppliers against 
     manufacturers of defective products; the parties did not fit
     the requisite categories.

3.   Negligence -- prima facie case of -- negligence defined. -- To
     establish a prima facie case of negligence, the plaintiff must
     show that she sustained damages, that the defendant was
     negligent, and that such negligence was a proximate cause of
     the damages; negligence is the failure to do something that a
     reasonably careful person would do; a negligent act arises
     from a situation where an ordinarily prudent person in the
     same situation would foresee such an appreciable risk of harm
     to others that he would not act or at least would act in a
     more careful manner.

4.   Negligence -- trial court's conclusions regarding issue of
     negligence not clearly erroneous. -- Where the testimony of
     other horse trainers indicated that an examination by an
     independent veterinarian to verify a horse's age and health
     was not required prior to showing the horse to a potential
     purchaser, the supreme court could not say that any of the
     trial court's factual conclusions were clearly erroneous or
     that its overall conclusion that appellant failed to present
     a preponderance of the evidence on the issue of negligence was
     wrong.

5.   Attorney & client -- fees -- order of attorney's fee after
     entry of judgment is collateral matter -- issue not properly
     subject to review. -- The order of an attorney's fee after
     entry of the judgment is a collateral matter; where appellant
     neither filed a notice of appeal from the fee order nor
     provided the supreme court with a record of a hearing held on
     the attorney's fee issue, the issue could not properly be
     reviewed. 


     Appeal from Pulaski Circuit Court; David Bogard, Judge;
affirmed.
     Edward O. Moody, for appellant.
     Gill Law Firm, P.L.C., by: John Gill, for appellee.

     David Newbern, Justice.2/5/95    Justice David Newbern   *ADVREP3*


KITTYE MASON                            No. 94-1352 
                                        Opinion Delivered:
          Appellant

     v.                                 Appeal from Pulaski
                                        County Circuit Court


JODY JACKSON                            Honorable David Bogard,
                                        Circuit Judge
     
          Appellee                      Affirmed







     Jody Jackson, the appellee, teaches horseback riding.  Kittye
Mason, the appellant, is the mother of Lydia Mason who, as a
teenager, was a student of Ms. Jackson.  Kittye Mason agreed to pay
Ms. Jackson $500 to find a 10-year-old gelding, trained as a
hunter-jumper, to be purchased for some $10,000 for Lydia Mason. 
Kittye Mason brought tort and contract claims against Ms. Jackson
resulting from dissatisfaction with the horse Ms. Jackson helped
her purchase.  The Trial Court held in favor of Ms. Jackson and
awarded attorney's fees to her.  We affirm the judgment and the fee
award.
     After entering the agreement, Ms. Jackson heard of an 11-year-
old horse named "Norway" she thought might be suitable.  Norway was
owned by Phil Devita, owner of Coral Hill Farm in Florida.  Norway
was for sale for $11,500.  Ms. Jackson spoke to Carolyn Tanner, who
was apparently an employee of Mr. Devita with whom Ms. Jackson was
acquainted, who told her Norway was 11 years old.  She then spoke
of Norway to Kittye Mason who expressed interest.  The two of them
flew to Florida, along with Lydia Mason, to have a look at Norway
and other horses in March 1990.
     While in Florida, the threesome observed Norway's abilities
and temperament at a horse show, and Lydia Mason rode him.  They
discussed Norway with the Savills, who were his former owners.  Ms.
Savill testified that, when she purchased Norway in December 1988,
he was eight or nine years old and she had him examined by a
veterinarian in connection with her purchase of him.  Although they
looked at other horses while in Florida, Mrs. Mason and Lydia
decided to purchase Norway.  
     Kittye Mason testified it was Ms. Jackson's responsibility to
have Norway examined by an independent veterinarian before the
purchase was to be completed.  Ms. Jackson testified that Kittye
Mason asked Ms. Tanner to arrange for the veterinary examination to
expedite the matter, as she did not want to spend more than four
days on the trip.  The veterinarian who examined Norway was Dr.
Delius, the "barn vet" at Coral Hill Farm.  He certified the horse
to be 11 years old.  Ms. Jackson testified she told Kittye Mason
that it was Dr. Delius who performed the examination.
     Norway was ill when he arrived by van at Ms. Jackson's farm
where he was to be stabled.  He suffered from colic from time to
time over the following year.  Several witnesses testified that
Lydia Mason treated Norway badly, and his condition could have been
the result of stress from mistreatment.  Despite that, he won a
number of contests for Lydia Mason.  
     In October 1991, Dr. Joseph Hanley examined Norway at Ms.
Mason's request and determined Norway's age to be over twenty. 
Kittye Mason sued Dr. Delius, Mr. Devita, and Ms. Jackson for
breach of contract, fraud, negligence, and strict liability.  The
claims against Dr. Delius and Mr. Devita were dismissed for lack of
personal jurisdiction.  The claims against Ms. Jackson were tried
without a jury.  In his letter opinion, Judge Bogard wrote:

     The court finds that the Plaintiff did not prove by a
preponderance of the evidence any negligence on the part of
the Defendant as to the selection of the horse or the
veterinarian.  The Defendant did all a reasonable person would
do in procuring a suitable horse for the Plaintiff's daughter. 
Even assuming that the Plaintiff was responsible for arranging
for the veterinarian examination, no one testified that only
an independent veterinarian should perform this type of
examination.  In fact, one horse trainer testified that she
would rather have the horse's regular veterinarian perform the
examination.  Several trainers that testified stated that they
rely on the out of state trainer/seller to secure a
veterinarian, whether independent or the usual veterinarian,
for a sale examination.  All witnesses testified that only a
veterinarian could properly and safely age a horse.
     
In addition, there is absolutely no evidence before this Court
that Defendant was a party to any misrepresentation, fraud, or
deceit.  The only issue for consideration is whether the
Defendant breached an oral agreement with the Plaintiff when
it was discovered that although Norway horse met all of the
other requirements, he was not 11 years old. The Court notes
that the Defendant admits that for a fee of $500, she did
agree to find a horse meeting the above mentioned criteria. 
To put it simply, the Defendant was to put the Plaintiff in
touch with such a horse, which she did.  The agreement did not
include a guarantee of the horse's age by the Defendant.  Both
parties knew that they would have to secure a veterinarian to
certify the horse's age; both parties knew that ageing a horse
was out of their realm of abilities.  When the Plaintiff
agreed to take the veterinarian's word, the Defendant ceased
to be part of the contract, or in other words, Defendant's
contract with the Plaintiff was completed.  The court finds
the Defendant did not breach her contract with the Plaintiff. 
It is not reasonable to construe that the intent of the
parties' agreement was that the Defendant would guaranteed
that Norway was 11 years old.

                        1. Code remedies
     Several of Kittye Mason's points of appeal have to do with the
Trial Court's failure to rule in her favor with respect to remedies
prescribed in Article 2 of the Uniform Commercial Code for a buyer
against a seller of goods.  Ark. Code Ann.  4-2-314 through 4-2-
316 (Repl. 1991).  We need not deal with those points in detail
because the positions of Kittye Mason and Ms. Jackson were not
those of buyer and seller.  The agreement was for personal services
and not for a sale.
     The product liability remedies found in Ark. Code Ann.  16-
116-101 through 16-116-107 (1987) are for buyers against
manufacturers and suppliers and for suppliers against 
manufacturers of defective products.  Again, these parties do not
fit those categories.

                          2. Negligence
     Kittye Mason contended Ms. Jackson was negligent when she
failed to find a horse that met her criteria.  She appears to argue
the Trial Court erred in failing to hold that Ms. Jackson breached
her duty of care by failing to arrange for an independent
veterinarian to certify Norway's age and health prior to their trip
to Florida and subsequently in connection with the purchase.  In
response, Ms. Jackson cites the testimony of several other horse
trainers who stated that an examination by an independent
veterinarian was not required, and that it was often desirable to
use a veterinarian familiar with the horse.  In addition, we note
the Trial Court could have based his decision in substantial
measure upon Ms. Jackson's testimony that it was Kittye Mason who
arranged the sale examination by Dr. Delius through Ms. Tanner.
     To establish a prima facie case of negligence, the plaintiff
must show that she sustained damages, that the defendant was
negligent, and that such negligence was a proximate cause of the
damages.  

     Negligence is the failure to do something which a
reasonably careful person would do.  A negligent act arises
from a situation where an ordinarily prudent person in the
same situation would foresee such an appreciable risk of harm
to others that he would not act or at least would act in a
more careful manner.  White River Rural Water Dist. v. Moon,
310 Ark. 624, 839 S.W.2d 211 (1992).

Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993)
     None of the other horse trainers who testified stated that it
was customary to verify a horse's age prior to showing him to a
potential buyer.  Rather, it appears that this determination can be
made any time prior to purchase.  None of those witnesses said an
independent veterinarian must examine the horse.  Nancy Sobba, a
horse trainer from Jacksonville, testified that on out-of-state
purchases, she has relied on an examination by a "barn vet," or a
doctor familiar with the horse.
     We cannot say that any of the Trial Court's factual
conclusions were clearly erroneous, Ark. R. Civ. P. 52(a), or that
his overall conclusion that Kittye Mason failed to present a
preponderance of the evidence on the issue of negligence was wrong.

                        3. Attorney's fee
     Kittye Mason presents no argument with respect to breach of
contract other than points which fall within Article 2 of the
Uniform Commercial Code discussed above.  Breach of contract was,
however, a substantial issue before the Trial Court upon which Ms.
Jackson prevailed.  
     Kittye Mason contends Ms. Jackson's attorney had said to her
attorney that he did not intend to charge his client a fee because
she was a relative.  Her contention now is that the fee arrangement
must have been based on the contingency of Ms. Jackson prevailing
in the lawsuit and that the fee arrangement thus was required to be
in writing according to Model Rules of Professional Conduct 1.5.
     In his order, the Trial Court stated:  "It is within the
Court's discretion to award attorney's fees to the prevailing party
in a contract case....  [Ark. Code Ann.  16-32-308 (1987).]  As
noted in the judgment ... the Court focused on the breach of
contract issue....  Defendant has incurred and should be awarded
attorney's fees in the amount of $6,000."    
     Kittye Mason seems to be suggesting that Ms. Jackson did not
incur an attorney's fee and thus none should be awarded.  The Trial
Court held specifically that Ms. Jackson did incur an attorney's
fee.  In these circumstances, the order of an attorney's fee after
entry of the judgment is a collateral matter.  Marsh & McLennan of
Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).  We cannot
properly review this point because, as Ms. Jackson points out,
Kittye Mason has not filed a notice of appeal from the fee order
and has not provided us with a record of a hearing held on the
attorney's fee issue.  
     Affirmed.  
     Glaze and Brown, JJ., not participating.