David Wilson v. Arthur Fullerton and Bradley Motor Company, Incorporated

David WILSON v. Arthur FULLERTON and Bradley
Motor Company, Incorporated

97-358                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Appeal & error -- acceptance of benefits of decree or judgment
     -- benefits inconsistent with relief sought on appeal and
     detrimental to the rights of others -- appeal barred --
     dismissal required. -- The acceptance of benefits of a decree
     or judgment that are inconsistent with the relief sought on
     appeal and detrimental to the rights of others bars the appeal
     and requires its dismissal.

2.   Appeal & error -- acceptance of amount less than appellant
     contends is due him -- when appeal estopped. -- The acceptance
     of an amount less than appellant contends is due him is an
     estoppel against his appeal only when, by seeking to gain more
     by the appeal, he risks a smaller recovery on reversal. 

3.   Appeal & error -- prosecution of appeal -- could result in
     apellants recovering less than that awarded him by judgment
     from which he appealed. -- Appellant, by prosecuting his
     appeal, incurred the hazard of recovering less than was
     awarded him by the judgment appealed from; were appellees to 
     prevail in their appeal and obtain a new trial on the reversal
     and remand of this case, a jury on retrial could well
     determine no compensatory damages should be awarded; as a
     consequence, appellant would not only risk the loss of the
     $5,118.45 judgment against appellees, he could also lose his
     reduced award of $25,000 in punitive damages. 

4.   Appeal & error -- appellant's successful execution of writ of
     execution could have resulted in his benefiting from full
     amount of remitted judgment -- such action inconsistent with
     claim of right appellant sought to establish on appeal.-- By
     filing a writ of execution in satisfaction of the remitted
     punitive damages, appellant has also taken action that was
     detrimental to the rights of the appellees; as a result of
     appellant's attempt at execution, the appellee was forced to
     post a supersedeas bond and obtain a stay of execution; had
     this not been done, appellant could have successfully executed
     the writ, and thereby possibly accept and benefit from the
     full amount of the remitted judgment; such action is entirely
     inconsistent with the claim of right appellant sought to
     establish on appeal.     

5.   Appeal & error -- appellant waived right of appeal by virtue
     of his execution efforts -- appeal dismissed. -- When
     appellant voluntarily accepted partial satisfaction of the
     judgment, and later issued a writ of execution in an effort to
     satisfy the entire judgment against appellees, he knew there
     was a dispute as to whether he would be entitled to the
     remitted judgments he had obtained, he knew both appellees had
     challenged all amounts of damages owed, and was well aware
     that they intended to continue that challenge, since they had
     filed a cross appeal; appellant, has, therefore, waived his
     right of appeal by virtue of his execution efforts and the
     satisfaction of judgment against the defendant bank;
     consequently, his appeal was dismissed.

6.   Appeal & error -- appellees asked for and received reduction
     in compensatory and punitive damages awarded against them --
     on appeal appellees could not complain of ruling in their
     favor. -- Where appellees asked for and received a reduction
     in the compensatory and punitive damages awarded against them,
     they could not on appeal complain of a ruling in their favor.

7.   Appeal & error -- appellants argued that appellants were 
     allowed to pursue two mutually exclusive remedies -- failure
     to challenge trial court's actions below prevented challenge
     on appeal. -- Appellees argued that, while a jury could have
     found against the appellees for deceit for fraudulently
     selling the vehicles or the bank for conversion, appellant
     could not recover against all of them; however, the trial
     court recognized this inconsistency and entered a judgment
     which avoided double recovery, ordering that appellant could
     only recover $4,710.00 from one of the defendants, but not all
     of them; appellees never challenged that part of the trial
     court's order below, and they may not do so now.

8.   Trial -- election of remedies doctrine. -- The election-of-
     remedies doctrine bars more than one recovery on inconsistent
     remedies.  

9.   Appeal & error -- appellees had no opportunity to raise
     election-of-remedies doctrine at trial -- appellees entitled
     to have $5,118.45 judgment against them reflect its
     satisfaction in amount of $4,710.00. -- Where appellees had no
     opportunity to raise their election-of-remedies doctrine at
     trial, because the bank's satisfaction of the trial court's
     award of $4,710.00 in compensatory damages was not filed until
     after appellant filed his notice of appeal; the trial court
     recognized the double recovery possibility and eliminated that
     problem, ordering that appellant could not collect the
     $4,710.00 judgment more than once, appellant's acceptance
     payment of this amount from the bank precluded further
     recovery of that amount from appellees; the appellees were
     entitled to have the $5,118.45 judgment against them reflect
     its satisfaction in the amount of $4,710.00, leaving a balance
     owed in the smaller amount of $500.00.


     Appeal from Bradley Circuit Court; Sam Pope, Judge; appeal
dismissed on direct appeal; affirmed in part and reversed in part
on cross-appeal.
     Bill G. Wells and Thomas D. Deen, for appellant.
     Epley, Epley, & Parker, Ltd., by:  Tim S. Parker, for
appellees.
     Tom Glaze, Justice.
     Appellant David Wilson is a used car dealer who purchased
three used trucks from appellees Bradley Motor Company, Inc., and
its president, Arthur Fullerton.  At the time of purchase, First
State Bank of Warren held title to two of the trucks that had been
repossessed from a Mr. Thomas and Mr. Lephiew.  Chrysler Credit
Corporation possessed the title to the third truck, which is not at
issue in this litigation.  This appeal ensues from Wilson's suit
against Bradley Motor and Fullerton wherein Wilson alleged the tort
of deceit, claiming they willfully and wantonly refused to give him
the titles to the Thomas and Lephiew trucks.  Fullerton and Bradley
Motor subsequently filed a third-party complaint against First
State Bank, and asserted that the Bank was solely responsible for
failing to convey the two titles to Wilson.  Wilson then brought
suit directly against the Bank for the tort of conversion, alleging
the Bank converted his titles after having been paid for them.
     The parties' dispute was tried to a jury which awarded Wilson
a verdict against Fullerton for compensatory damages in the amount
of $50,000.00 and $100,000.00 in punitive damages; against Bradley
Motor for $25,000.00 in compensatory damages and $25,000 in
punitive damages; and against First State Bank for $4,710.00 in 
compensatory damages.  Afterwards on posttrial motions, the trial
court found the verdicts inconsistent because the same jury
instruction on compensatory damages was given against Fullerton and
Bradley Motor, yet the jury returned different awards.  Also, the
court found that, because of the different theories of tort
liability pursued against the Bank and Fullerton and Bradley Motor,
Wilson had a potential for receiving a double recovery for the same
economic loss.  
     The trial court, after reviewing the evidence, concluded that
Wilson's compensatory damages against both Fullerton and Bradley
Motor amounted to $5,118.45.  Because these same expenses incurred
by Wilson involved the same economic loss attributed to First State
Bank, the trial court ordered that Wilson could recover $4,710.00
on only one of the judgments against Fullerton, Bradley Motor, or
the Bank, and not all three.  In addition, the trial court reduced
Fullerton's punitive damages to $25,000.00 (the same amount awarded
against Bradley Motor), finding the jury's larger amount resulted
from passion and prejudice, likely due to Fullerton having failed
to appear and defend his case.  The trial court's judgment was
filed on August 30, 1996.
     Unhappy with the trial court's order reducing the jury verdict
amounts for compensatory and punitive damages, Wilson filed this
appeal on September 27, 1996, arguing that the trial court's
remittiturs were made in error.  Since First State Bank satisfied
its judgment on September 23, 1996, and filed it of record on
October 7, 1996, in the full amount of $4,710.00, Wilson did not
appeal from that judgment.  However, Fullerton and Bradley Motor
filed a timely cross-appeal, on October 2, 1996, asserting, as they
did in their posttrial motions, that the evidence did not support
the compensatory damages awarded.  They further argue that, because
compensatory and punitive damages are interwoven, any error made
with respect to one award of damages requires a retrial of the
whole case.  Fullerton and Bradley Motor further argue that
Wilson's verdicts against them for deceit and against the Bank for
conversion are mutually exclusive and amount to contradictory
verdicts as well as double recovery.
     After the parties filed their respective appeals and the Bank
satisfied its judgment, Wilson, on May 21, 1997, caused a writ of
execution to be issued against real and personal properties owned
by Fullerton and Bradley Motor.  Fullerton and Bradley Motor
responded on May 22, 1997, by filing a corporate supersedeas bond
in the amount of $25,749.84, and on May 23, 1997, the court stayed
all executions, levies, and garnishments pending this appeal. 
Following Wilson's action to execute on his August 30, 1996
judgment, Fullerton and Bradley Motor filed a motion to dismiss
Wilson's appeal.  They first claim Wilson cannot appeal a judgment
on the one hand and attempt to satisfy it on the other. 
Additionally, Fullerton and Bradley Motor submit that, under the
election-of-remedies doctrine, Wilson's acceptance of First State
Bank's satisfaction of Wilson's conversion claim against the Bank
requires the setting aside of his deceit claim against Fullerton
and Bradley Motor.  Because we agree with Fullerton's and Bradley
Motor's first claim, we need not fully address their election-of-
remedies argument at this stage.  Instead, we will defer discussing
that point when dealing with Fullerton's and Bradley Motor's cross-
appeal.
     In considering Fullerton's and Bradley Motor's dismissal
argument, the rule is well established that the acceptance of
benefits of a decree or judgment which are inconsistent with the
relief sought on appeal, and detrimental to the rights of others,
bars the appeal and requires its dismissal.  See Shepherd v. State
Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324
(1993); Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954);
Jones v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953).  Arkansas law
is also well settled that the acceptance of an amount less than
appellant contends is due him is an estoppel against his appeal
only when, by seeking to gain more by the appeal, he risks a
smaller recovery on reversal.  Coston v. Lee Wilson & Co., 109 Ark.
548, 160 S.W. 857 (1913); see also Gate City Bldg. & Ass'n v.
Frisby, 177 Ark. 252, 6 S.W.2d 537 (1928); Jones v. Hall, 136 Ark.
348, 206 S.W. 671 (1918).
     Wilson argues that, if we affirm the trial court's
remittiturs, he will be entitled to no less than the reduced
judgment.  He is in error.  In the present case, Wilson, by
prosecuting his appeal, incurs the hazard of recovering less than
was awarded him by the judgment appealed from.  From the outset of
this litigation, Fullerton and Bradley Motor have denied they owed
Wilson any damages, including compensatory ones.  Nonetheless, the
jury awarded Wilson $25,000.00 compensatory damages and the trial
court awarded such damages in the reduced amount of $5,118.45. 
Still, both Fullerton and Bradley Motor have continued their
challenge to any compensatory damages by cross-appealing from the
$5,118.45 judgment, as well as the punitive-damage judgment awarded
against them.  Clearly, when Wilson accepts the $5,118.45 judgment
in compensatory damages against Fullerton and Bradley Motor, but
seeks to gain more by his appeal, Wilson indisputably risks a
smaller recovery.  
     Specifically, if Fullerton and Bradley Motor prevail in their
appeal and obtain a new trial on the reversal and remand of this
case, a jury on retrial could well determine no compensatory
damages should be awarded.  As a consequence, Wilson would not only
risk the loss of the $5,118.45 judgment against Fullerton and
Bradley Motor, but in this circumstance, he could also lose his
reduced award of $25,000.00 in punitive damages.  See Bell v.
McManus, 294 Ark. 275, 742 S.W.2d 559 (1988) (court held punitive
damages are not recoverable unless compensatory damages are also
awarded).  At the very least, Wilson, on appeal, stands the
possibility of having his $5,118.45 award against Fullerton and
Bradley Motor reduced by the $4,710.00 payment made by the Bank,
since Wilson accepted that payment during his appeal.
     We add that, by filing a writ of execution in satisfaction of
the remitted punitive damages, Wilson has also taken action that
was detrimental to the rights of Fullerton and Bradley Motor.  As
a result of Wilson's attempt at execution, Fullerton was forced to
post a supersedeas bond and obtain a stay of execution.  Had
Fullerton not done so, Wilson could have successfully executed the
writ, and thereby possibly accept and benefit from the full amount
of the remitted judgment.  Such action is entirely inconsistent
with the claim of right Wilson seeks to establish on appeal.     
     In sum, when Wilson voluntarily accepted partial satisfaction
of the judgment, and later issued a writ of execution in an effort
to satisfy the entire judgment against Fullerton and Bradley Motor,
he knew there was a dispute as to whether he would be entitled to
the remitted judgments he had obtained.  He knew both Fullerton and
Bradley Motor had challenged all amounts of damages owed, and was
well aware that they intended to continue that challenge, since
they had filed a cross-appeal.  Wilson, has, therefore, waived his
right of appeal by virtue of his execution efforts and the
satisfaction of judgment against First State Bank.  Consequently,
his appeal must be dismissed.
     We now turn to Fullerton's and Bradley Motor's cross-appeal. 
In doing so, we consider the two points they offer for reversal,
dismissal, or for a new trial or directive as to the effect of the
Bank's satisfaction of Wilson's $5,118.45 judgment against
Fullerton and Bradley Motor.  In their first point, they argue the
evidence adduced at trial was insufficient to support compensatory
damages, and because compensatory and punitive damages are
interrelated, the entire damage award required reversal and a
retrial.  As previously mentioned, the jury returned a verdict
against Fullerton and Bradley Motor for compensatory and punitive
damages.  However, Fullerton and Bradley Motor asked not only that
the damage verdicts be set aside because of insufficient evidence,
but also made the alternative request that the trial court reduce
the amount of any judgment to the amount consistent with the proof
presented.  As discussed earlier herein, the trial court granted a
reduction in damages, and Fullerton and Bradley Motor never
objected.  Because Fullerton and Bradley Motor asked for and
received a reduction in the compensatory and punitive damages
awarded against them, they cannot on appeal complain of a ruling in
their favor.  See Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).
     Fullerton's and Bradley Motor's second point for appeal is not
as easily answered.  Actually, this point encompasses several
arguments.  They initially argue that the trial court erred by
permitting Wilson to pursue two mutually exclusive remedies.  In
sum, Fullerton and Bradley Motor urge that Wilson should not have
been allowed to say they had committed the tort of deceit by
fraudulently selling vehicles and willfully refusing to deliver the
titles as promised, but at the same time, claim First State Bank
had converted the titles after Fullerton and Bradley Motor paid the
Bank to release the titles.  Fullerton and Bradley Motor argue
that, while a jury could have found against either Fullerton and
Bradley Motor or the Bank, Wilson could not recover against all of
them.  Of course, the trial court recognized this inconsistency,
and as we discussed previously, the trial court entered a judgment
which avoided double recovery, ordering Wilson could only recover
$4,710.00 from one of the defendants, Fullerton, Bradley Motor, or
the Bank, not all of them.  Again, Fullerton and Bradley Motor
never challenged that part of the trial court's order below, and
they may not do so now.  See Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996).
     However, Fullerton and Bradley Motor are quite right that they
had no opportunity to raise their election-of-remedies doctrine at
trial, because the Bank's satisfaction of the trial court's award
of $4,710.00 in compensatory damages was not filed until after
Wilson filed his notice of appeal.  The election-of-remedies
doctrine bars more than one recovery on inconsistent remedies. 
Cates v. Cates, 311 Ark. 627, 846 S.W.2d 173 (1993); see also
Jones v. Ray, 54 Ark. App. 336, 925 S.W.2d 805 (1996).  Here, the
trial court recognized the double recovery possibility and
eliminated that problem, ordering that Wilson could not collect the
$4,710.00 judgment more than once.  When Wilson accepted payment of
this amount from the Bank, he precluded further recovery of that
amount from Fullerton and Bradley Motor.  Accordingly, we hold
Fullerton and Bradley Motor are entitled to have the $5,118.45
judgment against them reflect its satisfaction in the amount of
$4,710.00, leaving a balance owed in the smaller amount of $500.00.
     For the foregoing reasons, Fullerton's and Bradley Motor's
cross-appeal is affirmed in part and reversed and remanded in part,
with instructions consistent with this opinion.
     Newbern, Brown, and Imber, JJ., concur in part and dissent in
part.

     Annabelle Clinton Imber, Justice, concurring in part and
dissenting in part.

                               I.
     I would deny Fullerton and Bradley Motor's motion to dismiss
appeal.  Wilson's attempt to execute on the reduced judgment while
Fullerton and Bradley Motor had failed to obtain a supersedeas bond
is not inconsistent with the relief he seeks on appeal.  Wilson's
sole argument on appeal is that the trial court erred in reducing
the verdicts that the jury originally awarded.  The only remedy
that he requests from this court is that we reinstate the amount of
the original verdicts.  Thus, there is no risk that Wilson will
receive a smaller recovery should we affirm or reverse on direct
appeal.
     Of course, the majority is absolutely correct in stating that
if we accept the arguments put forth by Fullerton and Bradley Motor
on cross-appeal, one possible outcome is the grant of a new trial,
which obviously carries with it the chance that Wilson will receive
nothing once the case is retried.  However, I am not persuaded that
we should delve into Fullerton's and Bradley Motor's cross-appeal
to hold that Wilson has somehow run the risk of recovering less on
appeal, or that he has accepted the benefits of a judgment
inconsistent with the relief he seeks on appeal.  In none of the
cases relied on by the majority was a possible outcome on cross-
appeal dispositive in dismissing a direct appellant's appeal.  See
Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954)
(affirming dismissal of petition to set aside divorce decree
following petitioner's acceptance of $60,000 under decree); Jones
v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953) (dismissing appeal
challenging trial court's refusal to confirm commissioner's sale
after appellants "enjoyed the possession and use of the $5,000.00"
which came to them by virtue of the order denying confirmation);
Gate City Bldg. & Loan Assn. v. Frisby, 177 Ark. 252, 6 S.W.2d 537
(1928) ("overruling" motion to dismiss appeal where appellant
claimed a right to contract rate of interest rather than statutory
rate following foreclosure sale -- "appellant incurred no hazard
whatever of recovering a less amount on appeal."); Jones v. Hall,
136 Ark. 348, 206 S.W. 671 (1918) (dismissing appeal that involved
a review of the entire record to determine amount appellant was
entitled to); Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S.W. 857 (1913) (same).  To the extent that there is language in our
cases suggesting otherwise, see Delaughter v. Britt, 243 Ark. 40,
418 S.W.2d 638 (1967) ("There was no cross-appeal as to the amount
of these damages.") (Fogleman, J., dissenting) and McIlroy v.
McIlroy, 191 Ark. 45, 83 S.W.2d 550 (1935) ("In the case at bar
there is no cross-appeal challenging the amount of alimony to be
paid each month."), it is merely dictum.  I think that the better
course of action would be to look solely to the relief sought on
direct appeal to determine whether an appellant has accepted the
benefit of a judgment inconsistent with his appeal. 
     In Shepherd v. State Auto Property & Casualty Ins. Co., 312
Ark. 502, 850 S.W.2d 324 (1993), the appellants argued, among other
things, that the trial court erred in allowing an underinsurance
carrier to offset from its policy limits liability proceeds already
paid by the tortfeasor's carrier.  The underinsurance carrier,
which had voluntarily paid the judgment prior to the appeal, moved
to dismiss the appellants' appeal on the theory that the appellants
had accepted the benefits of the judgment that they appealed from,
rendering their appeal inconsistent with acceptance of the
judgment.  Relying on the governing law set down in Bolen v. Cumby,
53 Ark. 514 (1890) ("[H]e waives his right to an appeal by
accepting a benefit which is inconsistent with the claim of right
he seeks to establish by the appeal."), this court denied the
motion to dismiss because the judgment that the appellants accepted
belonged to them "in any event," and "their claims on appeal
expressly [went] to additional awards."  Shepherd, supra (emphasis
in original).  This was true despite the fact that the carrier had
filed a cross-appeal, ultimately dismissed as moot, in which it
argued that it was entitled to the offset and that the trial court
erred in not offsetting the judgment further with workers'
compensation benefits paid.  
     The Shepherd case is in line with cases from other
jurisdictions which hold that an appellant, who has already
accepted some benefit from a judgment, and who requests only a
larger amount on appeal, has not sought relief inconsistent with
the judgment appealed from, and that such an "inconsistency" cannot
be garnered from a possible result on cross-appeal.  Heacock v.
Ivorette-Texas, Inc., 26 Cal. Rptr. 2d 257 (Cal. Ct. App. 1993) ("In
deciding whether the plaintiff's appeal is inconsistent with having
accepted the benefits of the judgment, we focus solely on the
relief sought by the plaintiff, not on arguments made by a cross-
appealing defendant."); Stevens Const. Corp. v. Draper Hall, Inc.,
242 N.W.2d 893 (Wis. 1976) ("As long as the party accepting the
money has not put his right to that money in jeopardy in his own
appeal, there is no waiver, even though his right to the money may
be endangered by his opponent's cross-appeal or notice of
review."); Schleicht v. Bliss, 532 P.2d 1 (Or. 1975), disavowed on
other grounds, 688 P.2d 379 (Or. 1984) ("If a cross-appeal could
prevent the original appellant from pursuing a valid appeal on the
grounds the cross-appeal allows the appellate court to possibly
reduce the award given the original appellant, the cross-appeal
could be used as a vehicle to dismiss the original appeal."); see
also 1st Nat'l Bank v. Energy Equities Inc., 569 P.2d 421 (N.M. Ct.
App. 1977) (reaching merits of cross-appeal that went only to
additional awards despite direct appeal challenging the cross-
appellant's right to amounts already collected under the judgment). 
Because Wilson's claim on appeal goes only to additional awards, I
would reach the merits.
                               II.
     I concur in the result reached by the majority on Fullerton's
and Bradley Motor's cross-appeal.  As to their argument that the
relationship between the compensatory and punitive award is so
disparate as to require a new trial, this argument was made below
in their "Motion for Reconsideration" filed before the entry of
judgment.  In cross-appellants' brief, and during oral argument,
counsel for cross-appellants maintained that this "Motion for
Reconsideration" was in fact a Rule 59 motion for new trial. 
Accepting the cross-appellants' characterization of their own
motion, I would hold that we are precluded from reaching the merits
because their argument was raised in an ineffective Rule 59 motion
for new trial.  In cases discussing the timeliness of notices of
appeal this court has routinely stated that under Ark. R. Civ. P.
59(b), which provides "[a] motion for new trial shall be filed not
later than 10 days after the entry of judgment," a motion for new
trial must be filed after entry of judgment in order to be
effective.  See Benedict v. National Bank of Commerce, 329 Ark.
590, 951 S.W.2d 562 (1997) ("[appellant] failed to file her motion
within the ten-day period provided in ARCP Rule 59(b), so it was
ineffective."); Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996) ("Because [the motion for new trial] was filed
before the decree was entered, we are convinced that it was not
timely.").  The Reporter's Note to Rule 59 explains that "Section
(b) marks a significant departure from prior Arkansas practice. 
Under this section, a motion for new trial must be filed within ten
days after entry or filing of the judgment."
                              III.
     Finally, I agree with the majority that we are precluded from
reaching the merits of the cross-appellants' election-of-remedies
argument relating to the allegedly inconsistent jury verdicts
because they failed to make such an objection below.  However, I
deem it unnecessary to reduce the compensatory award against
Fullerton and Bradley Motor to reflect the payment by FSB,
considering that the trial court specifically found that Wilson was
entitled to "only recover the sum of $4,710.00 on one of the
judgments, not against all of the party defendants."  This would
appear to eliminate any double-recovery problem.

     Newbern and Brown, J.J., join as to Part I.