Hackleton v. Larkan

Ronnie HACKLETON v. Johnny LARKAN

96-638                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 18, 1996


1.   Damages -- double-damages statute must be strictly construed.
     -- Being penal in nature, Ark. Code Ann.  20-22-304 (Repl.
     1991), the statute providing for the recovery of double
     damages from those responsible for fires that cause damage to
     any other person, must be strictly construed; no one can
     invoke its benefits who does not bring himself strictly within
     its terms.  

2.   Damages -- injury to another's property -- treble-damages
     remedy requires showing of intentional wrongdoing. -- The
     treble-damages remedy under Ark. Code Ann.  18-60-102(a)
     (1987), which concerns the injury, destruction, or carrying
     away of another's property, requires a showing of intentional
     wrongdoing, even though the intent may be inferred from the
     carelessness, recklessness, or negligence of the offending
     party; its purpose, as noted by the General Assembly, was to
     provide an adequate penalty against the intentional cutting
     and theft of timber; here, appellant, who had admitted that he
     had started a fire on his own land that destroyed appellee's
     trees, was prepared to defend against damages that required a
     showing of intent to destroy appellee's property.

3.   Damages -- less than intentional conduct may support double
     damages under statute. -- Less than intentional conduct may
     support double damages under Ark. Code Ann.  20-22-304, which
     concerns causing fire and damage to another's property.

4.   Damages -- double-damages remedy should have been pleaded to
     give appellant adequate notice -- trial court abused its
     discretion in applying new remedy -- judgment modified. --
     Where an effective defense against the double-damages
     provision of Ark. Code Ann.  20-22-304 could have been
     markedly different from one against the treble-damages
     provision of Ark. Code Ann.  18-60-102(a), and where it would
     have been vastly easier from appellant's perspective to prove
     that he was devoid of intentional misconduct under Ark. Code
     Ann.  18-60-102(a) than to refute an assertion of negligence,
     or even recklessness, under Ark. Code Ann.  20-22-304, the
     supreme court concluded that it was imperative that the
     double-damages remedy under Ark. Code Ann.  20-22-304 be
     pleaded in order to give appellant adequate notice of the
     remedy he would be confronting; the appellate court held that
     the trial court's decision to apply the new remedy on the day
     of the trial was an abuse of discretion; consequently, the
     supreme court affirmed the judgment against appellant but
     modified it to the amount of the jury verdict.


     Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown
and Keith McPherson, for appellant.
     Dover & Dixon, P.A., by: Gary B. Rogers, for appellee.

     Robert L. Brown, Justice.
     Appellant Ronnie Hackleton appeals and asserts trial court
error in its assessment of double damages against him for fire
damage to appellee Johnny Larkan's trees.  We agree that error was
committed, and we modify the judgment amount to correspond with the
jury verdict of single damages.
     On April 13, 1994, Johnny Larkan filed a complaint seeking
damages for his trees that were destroyed as a result of the
alleged negligence of Ronnie Hackleton in starting, supervising,
controlling, and extinguishing a fire on Hackleton's property that
spread to Larkan's land.  Larkan, asserting that Hackleton was
strictly liable for trespassing on his land, sought treble damages
under Ark. Code Ann.  18-60-102(a) (1987), for the destruction of
36 acres of saw timber.  Hackleton admitted that he started the
fire on his own land in his responses to requests for admission,
and the action proceeded to trial by jury solely on the issue of
damages.
     Both parties prepared for trial with the belief that either
Ark. Code Ann.  18-60-102 (1987) or Ark. Code Ann.  18-60-103
(1987) would govern the issue of damages.  Treble damages for
trespass on land and the destruction of timber was sought by Larkan
under  18-60-102(a).  Hackleton proposed that only single damages
were available under  18-60-103 for fire set on a person's
property which spreads to and damages the property of a second
person.  As the parties were arguing over these two damage theories
immediately prior to trial, the trial court raised on its own the
issue of whether double damages should apply under a third statute
-- Ark. Code Ann.  20-22-304 (Repl. 1991).  The following colloquy
occurred:
          THE COURT: Now, neither one of you have talked about
     20-22-304.  Are you not interested in that, which calls
     for double damages?
          LARKAN'S COUNSEL: I think if I'm out on treble, then
     yes, I would be interested in that, but I'm going
     strictly on the theory that it is, but --
          THE COURT: Under 20-22-304?
          LARKAN'S COUNSEL: Yes.
          THE COURT: You talked about the 102 and 103.  I'm
     not sure how 20-22-304 relates to 103.
          HACKLETON'S COUNSEL: If I remember that statute
     correctly, that's one that you can recover double damages
     if someone harvests timber off your property.
          THE COURT: No, sir, if you don't put out a fire.  If
     you create a fire, it's a fire penalty.
          LARKAN'S COUNSEL: Strict liability.
          HACKLETON'S COUNSEL: This is not something the
     defendant has considered at length, Judge, but I think
     the statute you cited us to regarding double damages
     would probably be overridden by 103, because the facts of
     the situation were specifically contained within 103, and
     as the plaintiff has pointed out earlier, you must read
     102 and 103 together, sure, obviously.
          THE COURT: The way I see it is that for 20-22-304 to
     apply, that there would be double damages for letting a
     fire get loose, and according to the cases in the
     annotations it does not have to be pled.
          LARKAN'S COUNSEL: That's correct.  Again, I think
     that's a matter of law.
          THE COURT: So you are going to get at least double
     damages.
          HACKLETON'S COUNSEL: I think it's the defendant's
     position 103 is totally applicable in this case, and
     obviously as the plaintiff pointed out, you have to read
     them together, 102 and 103.  102 specifically addresses
     trespass, because the legislature wanted trespass in
     there.  If they wanted you to interpret trespass to be
     included in 103, would they not have written that in
     there?  I think 103, it's the defendant's contention is
     103 is unambiguous, clear on its face, and specifically
     addresses this particular instance, and that is our
     position.
          LARKAN'S COUNSEL: It's my understanding the double
     damages, again, that's not something we would submit to
     the jury.
          THE COURT: That will be up to me afterwards, and I
     will submit to them interrogatories and then make a
     decision on what kind of damages. . . .
     After the jury heard evidence on the amount of damage suffered
by Larkan, it returned from deliberations with a unanimous award of
$3,000.  The trial court then sent the jury back to decide whether
Hackleton acted willfully or wantonly with respect to the fire's
spreading.  The jury answered an interrogatory unanimously that
Hackleton had not acted willfully or wantonly.  Immediately
following the jury's second return, the following exchange
occurred:
          LARKAN'S COUNSEL: Under Arkansas law, we are
     automatically entitled to double damages based on the
     Statute, and we would ask the Court at this time to
     recognize that and include that.
          THE COURT: Mr. McPherson (Hackleton's counsel), you
     have any response?
          HACKLETON'S COUNSEL: Yes, I do, Your Honor.  The
     Complaint filed by the plaintiff was, cites the Court to
     Section 102, which was discussed earlier, regarding their
     seeking triple damages.
          No trespass was found, no willful and wanton conduct
     found, in which case the single damage award that's been
     submitted by the jury should be upheld.
          THE COURT: My reading of the case law following
     annotations of the statutes, does not require, does not
     have to be pled, and the Court can grant it without
     pleadings, and therefore the Court does grant double
     damages.
          LARKAN'S COUNSEL: And the judgment shall so reflect?
          THE COURT: Yes, sir.
          HACKLETON'S COUNSEL: Note my objection.
Double damages were included in the judgment against Hackleton in
the amount of $6,000.
     In contesting the trial court's double-damages award on
appeal, Hackleton argues (1) the double-damages statute,  20-22-
304, was not pled; and (2) it is inapplicable to this set of facts. 
We decide the matter in Hackleton's favor on the first point.  With
respect to failure to plead, Larkan contends that argument was not
preserved.  As demonstrated above, however, Hackleton's counsel
argued before trial that  20-22-304 was inapposite and that  18-
60-103 was the remedy for damages caused by fire spreading to
another's property.  At the conclusion of the trial, Hackleton's
counsel noted his objection to the judgment amount.  We deem the
actions of Hackleton's counsel to be sufficient to preserve the
matter for our review.
     The issue then is whether the double-damages statute had to be
pled.  The case of Cecil v. Headley, 237 Ark. 400, 373 S.W.2d 136
(1963), is directly on point.  In that case, the appellees
attempted to argue on appeal that the trial court erred in not
applying the double-damages statute, as a matter of law, to the
jury's award.  This court refused to hear the argument:
     Upon a review of this record we do not find that the
     appellees specifically sought double damages in their
     pleadings.  Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S.W.2d 328.  This statute [the predecessor to  20-22-
     304] providing for double damages, being penal in nature,
     must be strictly construed and no one can invoke its
     benefits who does not bring himself strictly within its
     terms.  Missouri Pacific R. Co. et al v. Lester, 219 Ark.
     413, 242 S.W.2d 714; Lamb v. Hibbard, 228 Ark. 270, 306 S.W.2d 859.
Cecil, 234 Ark. at 406-07, 373 S.W.2d  at 141 (emphasis added).  See
also Keathley v. Diversified Fastener & Tool, 2 Ark. App. 59, 616 S.W.2d 755 (1981).
     This lapse in pleading is not a situation where Rule 15(b) of
the Rules of Civil Procedure applies, as Larkan contends.  The
applicability of  20-22-304 was not tried to the jury with the
express or implied consent of the parties, and the trial court made
it clear that the remedy would be applied as a matter of law. 
Moreover, this is not a case where evidence was objected to at
trial, which might necessitate the objecting party's moving for a
continuance under Rule 15(b).  On the contrary, double damages was
a new remedy foisted upon Hackleton on the day of the trial.
     The Cecil v. Headley requirement that the double-damages
remedy be pled makes perfectly good sense.  Larkan specifically
pled treble damages under  18-60-102 in his complaint.  Hackleton,
understandably, prepared to defend against treble damages for
destruction of Larkan's trees by trespass.  He was not notified of
the potential for double damages under  20-22-304 until the trial
court broached the matter immediately before trial.  He, thus, had
insufficient notice to allow him to mount a defense against an
entirely different remedy under an entirely different statutory
scheme.  In short, Hackleton was blindsided by the new remedy.
     The change in remedies is particularly noteworthy because 
20-22-304 is so totally different from the remedy pled by Larkan
under  18-60-102(a).  The treble-damages remedy under  18-60-
102(a) requires a showing of intentional wrongdoing, even though
this intent may be inferred from the carelessness, recklessness, or
negligence of the offending party.  Revels v. Knighton, 305 Ark.
109, 805 S.W.2d 649 (1991).  Its purpose, as the General Assembly
noted in 1937, was to provide an adequate penalty against the
intentional cutting and theft of timber.  See 1937 Ark. Acts 29. 
Hackleton, accordingly, was prepared to defend against damages
which require a showing of intent to destroy Larkan's property.
     Section 20-22-304, on the other hand, concerns causing fire
and damage to another's property and, under these facts, would have
required something less than intentional misconduct for the penalty
to be assessed.  Because double damages are penal in nature, it
could be argued that more than mere negligence is required and at
least recklessness must be proved on the part of the offender. 
Ark. Code Ann.  5-2-203(b) (Repl. 1993).  See also Yocum v. State,
325 Ark. 180, 925 S.W.2d 385 (1996).  Cf. Lamb v. Hibbard, 228 Ark.
270, 306 S.W.2d 859 (1957).  But see Whiteside v. Tyner, 238 Ark.
985, 386 S.W.2d 239 (1965) (negligence alone suffices for an award
of double damages); Thomas v. Raney, 233 Ark. 836, 349 S.W.2d 129
(1961).  But whether negligence or recklessness, less than
intentional conduct may support double damages under  20-22-304.
     To summarize, an effective defense waged in opposition to 
20-22-304 could be markedly different from one mounted against the
treble-damages provision of  18-60-102(a).  It would have been
vastly easier from Hackleton's perspective to prove that he was
devoid of intentional misconduct under  18-60-102(a) than to
refute an assertion of negligence, or even recklessness, under 
20-22-304.  Thus, we conclude that it was imperative that the
double-damages remedy under  20-22-304 be pled in order to give
Hackleton adequate notice of the remedy he would be confronting. 
The trial court's decision to apply the new remedy on the day of
the trial was an abuse of discretion.  See McGee v. Wilson, 275
Ark. 466, 631 S.W.2d 292 (1982).  We affirm the judgment against
Hackleton but modify it to the amount of the jury verdict, $3,000.
     Affirmed as modified.
     Glaze, J., not participating.