Caldwell v. Jenkins

• Decision Date: 23 June 1993
• Docket Number: No. CA,CA
• Citation: 42 Ark.App. 157,856 S.W.2d 37
• Parties: Jim CALDWELL d/b/a Caldwell Enterprises, Appellant, v. Roger JENKINS and Patricia Jenkins, Appellees. 92-1304.
• Court: Arkansas Court of Appeals

Page 37

856 S.W.2d 37

42 Ark.App. 157

Jim CALDWELL d/b/a Caldwell Enterprises, Appellant, v. Roger JENKINS and Patricia Jenkins, Appellees.

No. CA 92-1304.

Court of Appeals of Arkansas,

En Banc.

June 23, 1993.

R. Theodor Stricker, Jonesboro, for appellant.

Etoch Law Firm, Helena, for appellees.

JENNINGS, Chief Judge.

The appellees, Roger and Patricia Jenkins, filed suit in Phillips County Circuit Court against Jim Caldwell, the appellant seeking damages based on Caldwell's sale of a car to them, allegedly with knowledge that the odometer had been turned back. The complaint set out two theories of recovery: common law fraud (with a claim for punitive damages) and violation of Ark.Code Ann. § 4-90-204 (Repl.1991), which prohibits the sale of a motor vehicle with knowledge that the mileage registered on the odometer has been altered. The jury returned a verdict in favor of appellees and awarded them $4,635.00 in compensatory damages. Although the jury did not assess punitive damages, the circuit judge, pursuant to Ark.Code Ann. § 4-90-203 (Repl.1991), increased the amount of damages awarded to $9,270.00 and awarded attorney's fees in the sum of $4,904.50.

For reversal, three arguments are made: that the attorney's fees awarded were excessive; that the court abused its discretion in doubling the amount of damages awarded by the jury; and that the trial court should have granted a directed verdict for the appellant. We find no error and affirm.

Appellant first argues that the trial court abused its discretion in granting appellees' attorney an unreasonable amount of attorney's fees. Arkansas Code Annotated § 4-90-203 provides that "[a]ny person injured by a violation of this subchapter shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorney's fee...." When attorney's fees are authorized by statute, the amount to be awarded lies within the broad discretion of the trial court. While there is no fixed formula to be used in setting a reasonable fee, Federal Life Insurance Co. v. Hase, 193 Ark. 816, 825, 102 S.W.2d 841, 845 (1937), the supreme court has adopted the list of factors to be considered set out in the American Bar Association's Code of Professional Responsibility. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 92, 514 S.W.2d 224, 226 (1974). These factors include the time and labor required and the results obtained. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 361, 601 S.W.2d 836, 837 (1980). We have recognized the superior position of the trial judge to determine a reasonable attorney's fee because of his acquaintance with the record and the quality of services rendered. Briscoe v. Shoppers News, Inc., 10 Ark.App. 395, 401-02, 664 S.W.2d 886, 890 (1984); Farm Bureau Mut. Ins. Co. v. Kizziar, 1 Ark.App. 84, 613 S.W.2d 401 (1981). The case at bar was tried to a jury, the record on appeal is 400 pages long, and the recovery in the trial court was substantial. On these facts, we cannot say the trial court's award was an abuse of discretion.

Appellant also argues that the trial court abused its discretion by doubling the amount of damages awarded by the jury. In addition to providing for the award of attorney's fees, § 4-90-203 provides that the court in its discretion may increase an award of damages to an amount not to exceed three times the actual damages sustained or $1,500.00, whichever is greater. Appellant contends that, because the jury refused to assess punitive damages, it was error for the circuit judge to double the amount of compensatory damages pursuant to this section. His argument is that, by requesting punitive damages, the appellees waived any rights they might have under Ark.Code Ann. § 4-90-203 to treble damages. This argument was not made to the trial court, and no authority is cited to support it. Had the appellees obtained an award of punitive damages the situation might be different, but given the fact that only compensatory damages were awarded by the jury, the trial court clearly had authority under the statute to double the amount of damages. See Currier v. Spencer, 299 Ark. 182, 185, 772 S.W.2d 309, 311 (1989).

Finally, appellant argues that there was insufficient evidence presented to support a verdict against appellant. We do not agree. The statute in issue, Ark.Code Ann. § 4-90-204(d) (Repl.1991), provides that no person shall sell or offer for sale any motor vehicle with knowledge that the mileage registered on the odometer has been altered so as to reflect a lower mileage than the motor vehicle has actually been driven without disclosing such fact to prospective purchasers. Appellant does not argue on appeal that a disclosure was made.

Appellant testified that he had no knowledge that the odometer on the car sold to appellee had been rolled back and showed a false reading. However, appellee Patricia Jenkins testified that, subsequent to appellees' purchase of the vehicle, she confronted appellant about appellees' suspicions in that regard. She stated that appellant told her that he did not turn back the odometer but that he knew who did. Appellant testified that the man that sold him the car gave him an odometer statement dated November 28, 1989, which showed the mileage on the car to be 40,090 miles. However, the record reflects that the invoice appellant gave appellees when they purchased the car was dated the following day, November 29, 1989, and showed the mileage to be approximately 8,000 miles less than the statement dated the previous day. The car actually had been driven more than 79,000 miles. The odometer statement dated December 1, 1989, given by appellant to the appellees shows the car's mileage as 40,352.

Whether a person has sold a motor vehicle with knowledge that the mileage registered on the odometer has been altered is a question of fact and evidence of such alteration is often circumstantial. Boren v. State, 297 Ark. 220, 224-25, 761 S.W.2d 885, 887 (1988). Evidence of alteration is shown by contrasting a previously higher odometer reading and the lower reading at the time the vehicle is sold to the complaining party. See Boren v. State, 297 Ark. at 224, 761 S.W.2d at 887. It is the responsibility of the jury to determine credibility and to settle disputed questions of fact. Neugebauer v. Marlin, 268 Ark. 1070, 1072, 598 S.W.2d 446, 447 (1980). Furthermore, it is the jury's sole prerogative to evaluate the conflicting evidence and draw its own inferences; the jury may draw any reasonable inference from the evidence presented. Boren v. State, 297 Ark. at 225, 761 S.W.2d at 888. The record reflects that there was sufficient evidence from which the jury could find that the appellant sold the vehicle to appellees in violation of § 4-90-204.

Affirmed.

MAYFIELD, J., concurs in part; dissents in part.

COOPER, J., dissents.

MAYFIELD, Judge, concurring in part and dissenting in part.

Although I concur with the majority opinion in affirming the attorney's fee allowed by the trial court, I cannot agree with the majority opinion in affirming the trial court's increase of compensatory damages. To explain my dissent, I first note that, as stated in appellant's abstract, the amended complaint filed by the appellees alleged three causes of action.

One cause of action was based on 15 U.S.C. § 1984 (1982), which provides that "no person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon." This section is part of Title IV of the Federal Motor Vehicle Information and Cost Savings Act of 1972 (Pub.L. No. 92-513, 86 Stat. 963). Section 409 of the Act is codified at 15 U.S.C. § 1989 (1982) and provides as follows:

(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of--

(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and

(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.

(b) An action to enforce any liability created under subsection (a) of this section, may be brought in a United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises.

The second cause of action asserted in the amended complaint was based upon an alleged violation of Ark.Code Ann. § 4-90-206 (Repl.1991), committed by not giving appellees an accurate odometer statement. Recovery of damages for such violation is provided as follows:

Any person injured by a violation of this subchapter shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorney fee, provided that the Court in its discretion may increase the award of damages to an amount not to exceed three (3) times the actual damages sustained or One Thousand Five Hundred Dollars ($1,500), whichever is greater.

Ark.Code Ann. § 4-90-203 (Repl.1991) (emphasis added).

A third cause of action was based on common law fraud for alleged false representations made with intent to induce the appellees to buy the vehicle involved in this case, and the amended complaint asked for punitive damages on this cause of action.

This suit was brought against two defendants, but judgment was obtained against the appellant only. The other defendant filed a notice stating he had filed for bankruptcy, and the appellees subsequently dismissed against him. Although the appellant testified that he bought the vehicle from the other defendant and did not know the odometer had been rolled back, the jury found against appellant. The case was submitted on instructions that allowed a verdict for appellees for the violation of Ark.Code Ann. §§...