Ozarks Unlimited Resources Cooperative, Inc. v. Edward C. Daniels, Jr. and Edward C. Daniels, III

Annotate this Case
OZARKS UNLIMITED RESOURCES COOPERATIVE, INC.
v. Edward C. DANIELS, Jr., and 
Edward C. Daniels, III

97-924                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 14, 1998


1.   Judgment -- summary judgment -- denial of motion generally not reviewable or
     appealable. -- As a general rule, the denial of a motion for
     summary judgment is neither reviewable nor appealable.

2.   Appeal & error -- failure to address order's appealability -- appellate court must
     determine jurisdiction. -- When the parties fail to address the issue
     of an order's appealability, the appellate court must
     nevertheless determine whether it has jurisdiction.

3.   Judgment -- summary judgment -- when general rule regarding denial inapplicable. --
     Although denials of summary-judgment motions generally are
     nonappealable, the general rule does not apply where the
     refusal to grant a summary-judgment motion has the effect of
     determining that the appellants are not entitled to immunity
     from suit, as the right of immunity from suit is effectively
     lost if a case is permitted to go to trial.

4.   Appeal & error -- sovereign-immunity defense -- case warranted appellate review. --
     Where appellants claimed the defense of sovereign immunity,
     the case fell within the well-settled line of cases permitting
     review of summary-judgment denials based on qualified immunity
     and warranted appellate review.  

5.   Judgment -- summary judgment -- appeal of denial -- standard of review. -- The
     standard of review when an order denying a motion for summary
     judgment is appealed is whether the trial court abused its
     discretion in denying the motion.

6.   Constitutional law -- sovereign immunity -- doctrine discussed. -- Article 5,
     section 20, of the Arkansas Constitution provides that the
     State "shall never be made defendant in any of her courts";
     Article 5, section 20, grants sovereign immunity and a general
     prohibition against awards of money damages in lawsuits
     against the State and its institutions; the doctrine of
     sovereign immunity is rigid and, as such, the immunity may be
     waived only in limited circumstances; where the suit is one
     against the State and there has been no waiver of immunity,
     the trial court acquires no jurisdiction; therefore, sovereign
     immunity fully protects the State absent a waiver or consent
     by the State to be sued.

7.   Schools & school districts -- education service cooperatives -- comparable to school
     districts. -- Under the Education Service Cooperative Act of 1985,
     Ark. Code Ann.  6-13-1001 to -1025 (Repl. 1993 & Supp.
     1997), education service cooperatives are more closely
     analogous to school districts than to the State Department of
     Education; the legislation governing cooperatives is nested
     within the legislation governing school districts and not
     within the statutes governing the State Department of
     Education; the decisions to initiate, activate, or participate
     in a cooperative are made by school districts; the growth,
     utilization, and maintenance of the cooperative stems from the
     participating school districts and, as an entity, the
     cooperative is comparable to a school district.

8.   Constitutional law -- sovereign immunity -- trial court did not err in determining that
     appellant cooperative was not entitled to. -- Unlike school districts, the
     State Department of Education enjoys sovereign immunity;
     school districts are considered creatures of the State that
     may not avail themselves of all constitutional safeguards; as
     creatures of statute, school districts may only act through a
     board of directors and are bound by all lawful contracts into
     which they may enter; a school district is a corporate body
     with the power to sue and be sued; consistent with the
     legislation creating cooperatives and the practical manner in
     which they function, the supreme court concluded that the
     trial court's determination that appellant cooperative was not
     entitled to sovereign immunity was not erroneous.

9.   Schools & school districts -- education service cooperatives -- governing legislative
     act. -- Although an education service cooperative is more
     similar to a school district than the State Department of
     Education for purposes of determining immunity, the
     cooperative's formation and operation are independently
     governed by the Education Service Cooperative Act, which
     authorizes a cooperative's board of directors to employ a
     director, establish policies and procedures for operation and
     management, prepare an annual budget, and receive and expend
     funds and employ necessary personnel to provide programs and
     services, and also empowers cooperatives to rent or lease
     facilities and buildings to provide programs and services.

10.  Schools & school districts -- trial court did not err in finding appellant's five-year
     lease was not violative of Ark. Code Ann.  6-20-402. -- Although Arkansas
     Code Annotated section 6-20-402 (Repl. 1993 & Supp. 1997)
     provides that the amount of obligations incurred by a school
     district for any school year shall not be in excess of the
     district's revenue receipts for that year, the statutes
     governing education service cooperatives indicate the
     legislature's determination that cooperatives may enter into
     contracts that will commit their funds and extend their
     indebtedness beyond one fiscal year; the only limitation
     placed on a cooperative's board of directors is that the
     board's agreements must be consistent with available funds;
     the supreme court concluded that the trial court's finding
     that appellant cooperative's five-year lease was not in
     violation of section 6-20-402 was not erroneous.

11.  Interest -- prejudgment interest -- when allowable. -- Prejudgment interest
     is compensation for recoverable damages wrongfully withheld
     from the time of the loss until judgment; it is allowable
     where the amount of damages is definitely ascertainable by
     mathematical computation or the evidence furnishes data that
     makes it possible to compute the amount without reliance on
     opinion or discretion; where prejudgment interest may be
     collected at all, the injured party is always entitled to it
     as a matter of law.

12.  Interest -- prejudgment interest -- trial court did not err in awarding to appellees.
     -- Where a lease agreement detailed a specific sum to be paid
     as rent each month, adjusted annually to reflect changes in
     the consumer price index, the formula permitted the
     calculation, with reasonable certainty, of the overall amount
     due during the remaining term of the lease and yielded a
     liquidated amount that is not subject to conjecture; the
     amount of damages was ascertainable by means of a defined
     formula from the date appellant vacated the premises; the
     supreme court concluded that the trial court did not err in
     awarding appellees prejudgment interest. 

13.  Damages -- diminution in property value -- recoverable element. -- Diminution in
     property value is a recoverable element of damages.

14.  Appeal & error -- arguments not presented to trial court are not reviewable. -- No
     instruction concerning diminution in property value was given
     to the jury, which received, instead, an instruction relating
     to lost profits, to which appellees failed to object;
     arguments not presented to the trial court are not reviewable
     on appeal.

15.  Landlord & tenant -- termination of lease by landlord's reentry. --  When a
     landlord reenters and resumes the use and enjoyment of the
     premises for his own account, he terminates the lease, as a
     matter of law, insofar as his right to recover subsequently
     accruing rent is concerned.

16.  Damages -- appellees' effective termination of lease rendered jury instruction
     permitting award for damages after sale date erroneous. -- Where appellees
     accepted the surrender of the leasehold and resumed their use
     and enjoyment of the property by selling it to another party,
     they, in effect, terminated the lease and the accrual of
     damages under the lease for lost rent; the supreme court
     concluded that a jury instruction permitting an award for
     damages after the sale date was erroneous.

17.  Damages -- trial court did not err in setting aside portion of award for damages after
     sale date. -- Where the jury's verdict was in the form of two
     interrogatories, the second relating to damages sustained
     after the sale date; where each interrogatory answered by the
     jury is a special verdict on that particular fact, and the
     court has the power and authority to rectify inconsistent
     answers, particularly where the inconsistency is due in part
     to incorrect instructions; and where the incorrect instruction
     was a special verdict on a particular fact, the supreme court
     concluded that the trial court did not err in setting aside
     that portion of the award representing damages sustained after
     the sale date.


     Appeal from Boone Circuit Court; Robert McCorkindale, Judge;
affirmed.
     Laser, Wilson, Bufford & Watts, P.A., by: Dan F. Bufford and
Brian A. Brown, for appellant/cross-appellee..
     Vowell & Atchley, by: Russell C. Atchley, P.A., for
appellees/cross-appellants.

     W.H. "Dub" Arnold, Chief Justice.
     Appellant, Ozarks Unlimited Resources ("O.U.R."), brings this
appeal challenging the Boone County Circuit Court's findings that
(1) O.U.R. was not immune from suit pursuant to Article 5, Section
20, of the Arkansas Constitution, and (2) that a lease entered into
by O.U.R. was not violative of Ark. Code Ann.  6-20-402 (Repl.
1993 & Supp. 1997).  Additionally, O.U.R. appeals the circuit
court's judgment awarding the appellees, Edward C. Daniels, Jr.,
and Edward C. Daniels, III (collectively "Daniels"), prejudgment
interest.  Via a cross-appeal, Daniels contests the circuit court's
judgment setting aside a portion of a jury verdict awarding Daniels
$25,000 for damages sustained after July 26, 1993.  Our
jurisdiction is invoked pursuant to Ark. Sup. Ct. Rules 1-2(a)(1),
(a)(17)(i), (a)(17)(vi) (1997) because the issues involve the
interpretation of the Arkansas Constitution and Ark. Code Ann.  6-
20-402.  Finding no error in the points raised on direct appeal or
cross-appeal, we affirm.
     O.U.R. is an education service cooperative, providing
educational services to twenty-one school districts in a multi-
county region of northwestern Arkansas, that was created pursuant
to Ark. Code Ann.  6-13-1000 to -1025 (Repl. 1993 & Supp. 1997). 
Since the late 1980's O.U.R. has leased a building from Daniels. 
The initial leases provided for one-year lease terms.  However, in
November of 1990 O.U.R. and Daniels executed an "Agreement to Enter
into a Lease" that contemplated a new lease, conditioned upon
Daniels completing specified improvements to the premises, with a
five-year term at a higher monthly rental rate than the prior
leases.  In May of 1991, the parties executed a new lease with the
five-year lease term.
     Subsequently, in January 1992, O.U.R. informed Daniels that it
was exploring other housing alternatives, because of a projected
decrease in funding and an inability to make the additional space
functional, and that it was terminating the lease effective June
30, 1992.  Although Daniels sold the property to another party on
July 26, 1993, they filed a complaint in the Boone County Circuit
Court against O.U.R. for breach of the lease agreement.  Daniels's
complaint sought recovery of the unpaid monthly rental payments due
from July 1992 through July 26, 1993, and $25,000 for diminution in
property value.
     O.U.R. asserted two legal defenses: (1) that the action was
barred by Article 5, Section 20, of the Arkansas Constitution
because it was, in effect, a suit against the State, and (2) that
the five-year lease agreement was void because it violated the
limitation on a school district's current indebtedness mandated by
Ark. Code Ann.  6-20-402.  Additionally, O.U.R. claimed two
factual defenses: (1) that the lease agreement permitted
termination if O.U.R.'s funding was not sufficiently available and,
in fact, funding was not available, and (2) that Daniels breached
the lease.
     O.U.R. moved for summary judgment based on the two legal
defenses and, after hearing oral arguments on March 10, 1995, the
trial court denied the motion.  On December 2, 1996, the parties
tried the case before a jury.  O.U.R. renewed the legal defenses
raised in its summary-judgment motion at the close of Daniels's
case and at the close of all evidence.  However, the trial court
overruled these motions and permitted the jury to consider whether
O.U.R. was justified in terminating the lease because of a funding
loss and whether O.U.R. breached the lease.  Ultimately, the jury
returned a verdict in favor of Daniels, awarding them $13,575.60
for lost rental payments from July 1, 1992 through July 26, 1993,
and $25,000 for damages sustained after July 26, 1993.  The trial
judge set aside the post-July 26, 1993 damages and entered a
judgment for Daniels in the amount of $13,575.60, plus prejudgment
interest, attorney's fees, and costs.

      I.  Appeal from Denial of Motion for Summary Judgment
     The appellant's first point on appeal contests the trial
court's finding that O.U.R. was not entitled to sovereign immunity
pursuant to Article 5, Section 20, of the Arkansas Constitution. 
O.U.R. first raised the immunity defense via a motion for summary
judgment, which the trial court denied.  As a general rule, the
denial of a motion for summary judgment is neither reviewable nor
appealable.  Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 427 (1996).  Accordingly, we first consider whether this
point reaches us through an appealable order.  See Newton v. Etoch,
332 Ark. 325, ___ S.W.2d ___ (1998).  When the parties fail to
address the issue of an order's appealability we, nevertheless,
must determine whether we have jurisdiction.  See Associates Fin.
Servs. Co. v. Crawford County Mem. Hosp., 297 Ark. 14, 759 S.W.2d 210 (1988).
     O.U.R.'s brief on appeal suggests that it renewed the immunity
defense via motions for directed verdict at the close of Daniels's
case and at the close of all evidence.  Such a motion, if made,
would be properly appealable.  However, the record indicates that
O.U.R. merely renewed the arguments advanced in its summary-
judgment motion.  Specifically, O.U.R. made the following motion at
the conclusion of Daniels's case:
     The Court will recall that I had a motion for summary judgment
     pending which the Court denied about a year ago, but I just
     want at this point to renew for the record that we contend
     that this lease is unenforceable and illegal under the state
     law and the Arkansas constitution, and, in fact, make the same
     motion I did at summary judgment and have the Court note the
     denial of that for the record.

The trial court noted and overruled the motion.  Likewise, the
trial court noted and overruled the motion when made at the close
of all evidence.
     Although denials of summary-judgment motions generally are
nonappealable, the general rule does not apply where the refusal to
grant a summary-judgment motion has the effect of determining that
the appellants are not entitled to immunity from suit, as the right
of immunity from suit is effectively lost if a case is permitted to
go to trial.  See Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); see also Ark. R. App. P.--Civil 2(a)(2) (providing that
an appeal may be taken from an order that in effect determines the
action and prevents a judgment from which an appeal might be
taken).  In Robinson, this court held that the refusal to grant the
motion for summary judgment amounted to "a denial of appellants'
claimed defense which would have, if allowed, discontinued the
action.  The qualified immunity claim is a claim of right which is
separable from, and collateral to, rights asserted in the
complaint. . . ."  Robinson, 291 Ark. at 482-83.
     Moreover, in Virden v. Roper, 302 Ark. 125, 128, 788 S.W.2d 470 (1990), we noted that: "The appealability of a denial of
summary judgment based on qualified immunity from suit is clearly
established."  Id. (citing Robinson, 291 Ark. 477); compare Nucor
Holding Corp., 326 Ark. 217 (dismissing appeal from denial of
summary-judgment motion for lack of finality when issue raised was
exclusivity of remedy under the Workers' Compensation Act)). 
Although we voiced our strenuous objections in Nucor against
accepting appeals from denials of motions for summary judgment, the
facts of the instant case are distinguishable from Nucor, which
implicated the Workers' Compensation Act.  Here, appellants claim
the defense of sovereign immunity, which is, simply, jurisdictional
immunity from suit.  See Newton, 332 Ark. 325.  Accordingly, the
instant case falls within the well-settled line of cases permitting
review of summary-judgment denials based on qualified immunity, and
warrants our review.  The standard of review when an order denying
a motion for summary judgment is appealed is whether the trial
court abused its discretion in denying the motion.  Karnes v.
Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989).

                     II.  Sovereign Immunity
    Article 5, Section 20, of the Arkansas Constitution provides
that, "[t]he State of Arkansas shall never be made defendant in any
of her courts."  Article 5, Section 20, grants sovereign immunity
and a general prohibition against awards of money damages in
lawsuits against the State of Arkansas and its institutions. 
Cross, 328 Ark. at 258 (citing Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Fireman's Ins. Co. v. Arkansas State Claims
Comm'n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824
(1990).  The doctrine of sovereign immunity is rigid and, as such,
the immunity may be waived only in limited circumstances.  Id. at
258-59 (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478
(1996).  Where the suit is one against the State and there has been
no waiver of immunity, the trial court acquires no jurisdiction. 
Id. (citing Staton, 325 Ark. 341). Therefore, sovereign immunity
fully protects the State absent a waiver or consent by the State to
be sued.  Jacoby v. Arkansas Dept. of Educ., 331 Ark. 508, 962 S.W.2d 773 (1998); see also Cross, 328 Ark. 255; State v. Tedder,
326 Ark. 495, 932 S.W.2d 755 (1996); Fireman's Ins. Co., 301 Ark.
451; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).  There
is no issue of waiver or consent by the appellant in the case
before us.  O.U.R. relies, rather, on a claim of immunity granted
under the State Constitution.
     Here, O.U.R. notes that it is a "public agency" overseen by
the Arkansas Department of Education pursuant to Ark. Code Ann. 
6-13-1001 to -1025, the Education Service Cooperative Act of 1985,
and that this "agency" designation makes it akin to the State
Department of Education.  Moreover, O.U.R. acknowledges that it
receives funding from the State, which would be jeopardized by any
judgment against O.U.R..  Daniels argues, on the other hand, that
the funding issue is irrelevant, that the mere appellation "public
agency" is not determinative of whether O.U.R. has the capacity to
sue and be sued, and that the answer to that question lies in the
enabling legislation creating education service cooperatives.  We
agree.
     A review of the enabling legislation reveals that the co-op
entities are more closely analogous to school districts than, as
the appellant suggests, to the State Department of Education. 
Significantly, the legislation governing co-ops is nested within
the legislation governing school districts and not within the
statutes governing the State Department of Education.  Described in
section 6-13-1002 as "intermediate service units," the co-op entity
is comprised of school districts and, like school districts, co-ops
must report to the Department of Education.  The growth of a co-op
begins at a grassroots level.  Although the tentative geographic
boundaries of co-ops are established by the Department of
Education, 75% of the school districts in a proposed co-op must
request formation of the co-op by formal resolutions.  The
decisions to initiate, activate, or participate in a co-op are made
by school districts.  Further, co-op personnel are employed and
terminated using the same procedures applicable to school districts
and, only when the co-op's governing body approves, will the
Department of Education assign state personnel to the co-op. 
Clearly, the growth, utilization, and maintenance of the co-op
stems from the participating school districts and, as an entity,
the co-op is comparable to a school district.
     The importance of the co-op's characterization as one type of
entity or another cannot be overemphasized because, unlike school
districts, the State Department of Education enjoys sovereign
immunity.  School districts are considered creatures of the state
who may not avail themselves of all constitutional safeguards.  See
Delta Special Sch. Dist. No. 5 v. State Bd. of Educ., 754 F.2d 532
(8th Cir. 1984).  As creatures of statute, school districts may
only act through a board of directors, and are bound by all lawful
contracts into which they may enter.  F.E. Compton & Co. v.
Greenwood Sch. Distr. No. 25, 203 Ark. 935, 159 S.W.2d 721 (1942). 
A school district is a corporate body with the power to sue and be
sued.  Clarke v. School Distr. No. 16, 84 Ark. 516, 106 S.W. 677
(1907) (decision under prior law).  Consistent with the legislation
creating co-ops and the practical manner in which they function, we
conclude that the trial court's determination that O.U.R. was not
entitled to sovereign immunity was not erroneous.

                 III.  Ark. Code Ann.  6-20-402
     O.U.R.'s second point on appeal, also raised in its summary-
judgment motion, is that the trial court erred in finding that the
five-year lease term was not violative of section 6-20-402.  We note
that this point is not properly before us on appeal through a denial of a
summary-judgment motion; however, we will address it in the interest of judicial
economy. Paradoxically, O.U.R. urges us to
find that it is analogous to the State
Department of Education for purposes of
analyzing its immunity argument but
compels us to define it as a school
district for purposes of applying section
6-20-402, a statute found in a
subchapter entitled "District Finances." 
Section 6-20-402 (Repl 1993 & Supp.
1997) provides:
     The amount of obligations incurred
     by a school district for any school
     fiscal year shall not be in excess of
     the revenue receipts of the district
     for that year except as provided
     herein and in  6-20-801 et seq.
     [Revolving Loan Program] and 6-20-
     1201 et seq. [District Bonds].

     Although the co-op entity is more
similar to a school district than the
State Department of Education for
purposes of determining immunity, the
co-op's formation and operation are
independently governed by the
Education Service Cooperative Act.  For
example, the Act authorizes a co-op's
board of directors to employ a director,
establish policies and procedures for
operation and management, prepare an
annual budget, and receive and expend
funds and employ necessary personnel
to provide programs and services.  Ark.
Code Ann.  6-13-1006(d).  Notably, the
Act also empowers co-ops to rent or
lease facilities and buildings to provide
programs and services.  Id.
     Arguably, section 6-20-402 is wholly
inapplicable to a co-op because it is a
part of school district finance statutes. 
However, even an inspection of the
statutes that govern co-ops indicates
the legislature's determination that co-
ops may enter into contracts that will
commit their funds, and extend their
indebtedness, beyond one fiscal year. 
Most compelling, the Act authorizes a co-
op to enter into a three-year
employment contract with a director. 
Ark. Code Ann.  6-13-1012(c). 
Assuming, arguendo, that section 6-20-
402 were applied to a co-op, it would be
perplexing to reconcile that debt
limitation with the authority expressly
granted to a co-op in section 6-13-1012. 
We agree with the appellees that the
legislature could have imposed similar
debt restrictions within the Education
Service Cooperative Act.  In fact, the
only limitation placed on a co-op's board
of directors is that the board's
agreements must be "consistent with
funds available."  Ark. Code Ann.  6-
13-1006(d).  In light of the foregoing,
we conclude that the trial court's
finding that O.U.R.'s five-year lease was
not in violation of section 6-20-402 was
not erroneous.

                    IV.  Prejudgment Interest
     In the interest of judicial economy,
we will consider the appellant's third
point on appeal contesting the trial
court's awarding Daniels prejudgment
interest.  Prejudgment interest is
compensation for recoverable damages
wrongfully withheld from the time of the
loss until judgment. Prejudgment
interest is allowable where the amount of
damages is definitely ascertainable by
mathematical computation, or if the
evidence furnishes data that makes it
possible to compute the amount without
reliance on opinion or discretion. 
Woodline Motor Freight, Inc. v. Troutman
Oil Co., 327 Ark. 448, 938 S.W.2d 565
(1997).  Where prejudgment interest may
be collected at all, the injured party is
always entitled to it as a matter of law. 
TB of Blytheville v. Little Rock Sign &
Emblem, 328 Ark. 688, 946 S.W.2d 930
(1997) (citing Wooten v. McClendon, 272
Ark. 61, 612 S.W.2d 105 (1981)).
     Here, the lease agreement detailed a
specific sum to be paid as rent each
month, specifically, $1,000.41 per month,
due on the first of each month, adjusted
annually each January to reflect changes
in the consumer price index.  This
formula permits the calculation, with
reasonable certainty, of the overall
amount due during the remaining term
of the lease and yields a liquidated
amount that is not subject to conjecture. 
The amount of damages was ascertainable
by means of a defined formula from the
date O.U.R. vacated the premises. 
Accordingly, we conclude that the trial
court did not err in awarding Daniels
prejudgment interest. 

                        V.  Cross-Appeal
     On its own motion, the trial court set
aside the jury's verdict awarding
Daniels $25,000 for damages sustained
after July 26, 1993, the date the leased
property was sold to another party. 
From that judgment, Daniels brings the
instant cross-appeal. Before considering the final point on
cross-appeal, we note that Daniels's complaint actually sought recovery for
$25,000 for diminution in property value allegedly caused by O.U.R.'s lease
termination and waste, which, Daniels argued, left the property vacant and
reduced its marketability.  Diminution in property value is a recoverable element
of damages, Walker v. Dibble, 241 Ark. 692, 409 S.W.2d 333 (1966), but no such
instruction was given to the jury.  Rather, the jury received an instruction
relating to lost profits under the lease, which are not recoverable damages. 
Daniels failed to object to the submitted instruction and its variance from his
claimed damages, and arguments not presented to the trial court are not
reviewable on appeal.  See Schueck v. Burris, 330 Ark. 780, 787, 957 S.W.2d 702
(1997) (citing Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865
(1997)).
     Turning now to the point that is before us, the first issue is
whether the trial court erroneously
instructed the jury that Daniels could
receive an award for damages sustained
after July 26, 1993.  In
Weingarten/Arkansas, Inc. v. ABC
Interstate Theatres, Inc., 306 Ark. 64,
811 S.W.2d 295 (1991), we recognized
that when a landlord "reenters and
resumes the use and enjoyment of the
premises for his own account, he
terminates the lease, as a matter of law,
insofar as his right to recover
subsequently accruing rent is
concerned."  Weingarten, 306 Ark. at 69
(citing 49 Am. Jur. 2d, Landlord and
Tenant  620, 592 (1970); Hayes v.
Goldman, 71 Ark. 251, 72 S.W. 563
(1903)).  O.U.R. asserts that Daniels
accepted the surrender of the leasehold
and resumed their use and enjoyment of
the property by selling it to another
party.  Daniels, in effect, terminated the
lease and the accrual of damages under
the lease for lost rent.  The authority of
Weingarten supports O.U.R.'s conclusion,
and we agree that a jury instruction
permitting an award for damages after
the sale date was erroneous.
     Second, we must determine whether
the trial court erred by setting aside an
erroneous jury instruction. 
Significantly, the jury's verdict was in
the form of two interrogatories, the first
relating to damages prior to the sale of
the property on July 26, 1993, and the
second related to damages sustained
after the sale date.  Notably, each
interrogatory answered by the jury is a
special verdict on that particular fact. 
Carroll Boone Water District v. M. & P.
Equipment Co., 280 Ark. 560, 661 S.W.2d 345 (1983).  According to the Reporter's
Notes to Ark. R. Civ. P. 49, the court
"has the power and authority to rectify
inconsistent answers, particularly where
the inconsistency is due in part to
incorrect instructions to the jury." 
Given that the incorrect instruction was
a special verdict on a particular fact, we
conclude that the trial court did not err
in setting aside that portion of the
award representing damages sustained
after July 26, 1993.
     In conclusion, we affirm the trial
court's findings that the appellant was
not entitled to sovereign immunity and
that the five-year lease was not
violative of Ark. Code Ann.  6-20-402. 
We also affirm the trial court's judgment
awarding Daniels prejudgment interest
and setting aside a $25,000 award for
damages sustained after July 26, 1993.
     Corbin, Brown, and Imber, JJ., concur.

     Glaze, J. not participating.

     Robert L. Brown, Justice, concurring.  My only disagreement with the
majority opinion is its unrealistic assumption that O.U.R. made a motion for
summary judgment at the close of the Danielsþs case, and at the close of its own
case, and at the close of all of the evidence following rebuttal.  It is clear to me
and, no doubt, was equally clear to the attorneys at trial and to the trial court
that defense counsel was making a motion for directed verdict but was making
the same argument he made in his pretrial motion for summary judgment. 
Indeed, counsel said as much:
     The Court will recall that I had a motion for summary judgment
     pending which the Court denied about a year ago, but I just want
     at this point to renew for the record that we contend that this lease
     is unenforceable and illegal under the state law and the Arkansas
     constitution, and, in fact, make the same motion I did at summary
     judgment and have the Court note the denial of that for the record.
     The trial court overruled defense counselþs motion three times at trial,
which, again, supports the conclusion that the trial court, without question,
viewed these motions as motions for a directed verdict.
     I would accept the reality of what occurred at trial and recognize that the
trial court overruled O.U.R.þs directed-verdict motions.  This conclusion would
avoid the contorted reasoning of the majority opinion that what transpired at
trial fell under the qualified-immunity exception to our general rule regarding
denials of summary judgment motions.
     Corbin and Imber, JJ., join.