William Phillip Cottrell v. Myrldehne Cottrell

Annotate this Case
William Phillip COTTRELL v. Myrldehne
COTTRELL

97-654                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 19, 1998


1.   Judgment -- summary judgment -- when appropriate -- factors on
     review. -- Summary judgment is appropriate if there are no
     genuine issues of material fact, and the moving party is
     entitled to judgment as a matter of law; in making this
     determination, the supreme court reviews the proof submitted
     in the light most favorable to the party resisting the motion,
     and resolves all doubts and inferences against the moving
     party; summary judgment is also appropriate when the trial
     court finds that the allegations, taken as true, fail to state
     a cause of action. 

2.   Master & servant -- employment-at-will doctrine -- contract
     for deliberate term distinguished. -- It is well established
     under Arkansas law that when an employment contract is silent
     as to its duration, either party may terminate the
     relationship at will and without cause; a contract at will may
     be terminated by either party, whereas a contract for a
     definite term may not be terminated before the end of the
     term, except for cause or by mutual agreement, unless the
     right to do so is reserved in the contract. 

3.   Master & servant -- no agreement between parties as to
     employment duration -- employment was at will. -- Where it was
     undisputed that parties had not reached an agreement as to the
     duration of their employment, the trial court correctly ruled,
     pursuant to the employment-at-will doctrine, that appellees
     were free to terminate the appellants at any time and without
     cause.

4.   Master & servant -- supreme court refused to adopt restatement
     provision -- employment-at-will doctrine still applicable. --
     The supreme court refused to read a reasonable duration into
     the employment agreement pursuant to Section 204 of the
     Restatement of Contracts; adoption of this Restatement
     provision in employment cases would completely abrogate the
     employment-at-will doctrine, which is firmly rooted in
     Arkansas jurisprudence.   

5.   Appeal & error -- argument not made at trial -- could not be
     raised for first time on appeal. -- Where appellants did not
     argue at trial that appellees' actions constituted a breach of
     the implied covenant of good faith and fair dealing, they were
     precluded from raising this issue for the first time on
     appeal.


6.   Appeal & error -- appellants' abstract flagrantly deficient --
     fees and expenses awarded to appellees. -- Where appellees
     prepared a supplemental abstract because appellants' abstract
     was flagrantly deficient, the supplemental abstract was
     appropriate pursuant to Ark. Sup. Ct. R. 4-2(b)(2); appellees
     were awarded $500 in fees and expenses.
     

     Appeal from Washington Circuit Court; Kim Smith, Judge;
affirmed.
     Jon R. Sanford, for appellants.
     Susan A. Fox, for appellees.

     Annabelle Clinton Imber, Justice.
                 Annabelle Clinton Imber, Judge.


     The appellants, William and Deborah Cottrell, sued the
appellees, Myrldehne Cottrell and the Cottrell Corporation, for
fraud and breach of an oral employment contract.  The trial court
granted summary judgment to the appellees.  We affirm.
     Ralph and Myrldehne Cottrell owned and operated the Cottrell
Corporation located in Springdale, Arkansas.  In 1992, Ralph was
diagnosed with terminal cancer.  At the time, Ralph's son, William
Cottrell, and William's wife, Deborah, were living in Terre Haute,
Indiana.  In October of 1992, Ralph and Myrldehne asked William and
Deborah to move to Arkansas so that Ralph could visit regularly
with his father and help run the Cottrell Corporation.  Myrldehne
also told William that she suspected someone was stealing from the
Cottrell Corporation, and that she was afraid of being placed in a
nursing home after Ralph died.  To entice William and Deborah to
move to Arkansas, Ralph and Myrldehne orally promised the couple
free housing and jobs with the Cottrell Corporation for a combined
salary of $400 a week.        In reliance on these promises,
William and Deborah quit their jobs, sold their home, and moved to
Arkansas in late January of 1993.  Ralph Cottrell died on February
28, 1993, leaving all of his property, including the Cottrell
Corporation, to his wife, Myrldehne.  The day after Ralph
Cottrell's funeral, Myrldehne terminated William's and Deborah's
employment, and a few days later, she evicted the couple from their
home.
     On January 18, 1994, William and Deborah filed a legal action
for fraud against Myrldehne and the Cottrell Corporation. Myrldehne
and the Cottrell Corporation filed a motion for summary judgment
contending that there was no evidence of fraud, and that the
termination did not constitute a breach of contract.  On March 26,
1997, the trial court found that the parties had entered into an
oral employment contract without a specific duration.  Thus,
pursuant to the employment-at-will doctrine, Myrldehne and the
Cottrell Corporation were free to terminate William and Deborah at
any time and without cause.  The court also granted summary
judgment on the fraud claim because there was no evidence of any
misrepresentation by Myrldehne or the Cottrell Corporation.
     On appeal, William and Deborah claim that the trial court
erred when it granted summary judgment on their claim for breach of
contract, but they do not contest the trial court's ruling on their
fraud claim.  As we have said on numerous occasions, summary
judgment is appropriate if there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of
law.  In making this determination, we review the proof submitted
in the light most favorable to the party resisting the motion, and
resolve all doubts and inferences against the moving party.  Lovell
v. Brock, 330 Ark. 206, 952 S.W.2d 161 (1997); Sublett v. Hipps,
330 Ark. 58, 952 S.W.2d 140 (1997).  Summary judgment is also
appropriate when, as in this case, the trial court finds that the
allegations, taken as true, fail to state a cause of action.  See,
e.g., O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997);
Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996); Rainey v.
Keadle, 312 Ark. 460, 850 S.W.2d 839 (1993). 
               I.  The Employment-At-Will Doctrine
     For their first challenge to the order of summary judgment,
William and Deborah contend that the court erred when it found that
their employment agreement was governed by the employment-at-will
doctrine.  It is well established under Arkansas law that when an
employment contract is silent as to its duration, either party may
terminate the relationship at will and without cause.  Marine
Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132
(1994); City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155
(1994); Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991).  In Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), we distinguished that a "`contract at will' . .
. may be terminated by either party, whereas a contract for a
definite term may not be terminated before the end of the term,
except for cause or by mutual agreement, unless the right to do so
is reserved in the contract."  Although we have recognized several
exceptions to the at-will doctrine, none are applicable to the
facts at hand.  See Sterling Drug, Inc. v. Oxford, 294 Ark. 239,
743 S.W.2d 380 (1988); Gladden v. Arkansas Children's Hosp., 292
Ark. 130, 728 S.W.2d 501 (1987).
     In this case, it is undisputed that parties did not reach an
agreement as to the duration of their employment.  Accordingly, we
hold that the trial court correctly ruled that, pursuant to the
employment-at-will doctrine, Myrldehne and the Cottrell Corporation
were free to terminate William and Deborah at any time and without
cause.
     In reply, William and Deborah ask us to read a reasonable
duration into the employment agreement pursuant to Section 204 of
the Restatement of Contracts, which provides that:

     When the parties to a bargain sufficiently defined to be
     a contract have not agreed with respect to a term which
     is essential to a determination of their rights and
     duties, a term which is reasonable in the circumstances
     is supplied by the court.    

Restatement (Second) of Contracts  204 (1981).  We refuse to adopt
this Restatement provision in employment cases as it would
completely abrogate the employment-at-will doctrine, which, as
explained above, is firmly rooted in Arkansas jurisprudence.   
                II.  Good Faith and Fair Dealing
     Next, William and Deborah contend that Myrldehne's actions
constituted a breach of the implied covenant of good faith and fair
dealing.  William and Deborah did not make this argument before the
trial court, and thus they are precluded from raising it for the
first time on appeal.  Wilson v. Rebsamen Ins., Inc., 330 Ark. 687,
957 S.W.2d 678 (1997); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).  
                     III.  Motion for Costs
     Myrldehne and the Cottrell Corporation have prepared a
supplemental abstract and request $625 in fees and expenses.  We
agree that William and Deborah's abstract was flagrantly deficient,
and that the supplemental abstract was appropriate pursuant to Ark.
Sup. Ct. R. 4-2(b)(2).  See also Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107
(1982); Roach v. Terry, 263 Ark. 774, 567 S.W.2d 286 (1978). 
Accordingly, we award Myrldehne and the Cottrell Corporation $500
in fees and expenses.
     Affirmed.