City of Fayetteville v. Bibb, CA

• Decision Date: 20 December 1989
• Docket Number: No. CA,CA
• Citation: 30 Ark.App. 31,781 S.W.2d 493
• Court: Arkansas Court of Appeals
• Parties: , 29 Wage & Hour Cas. (BNA) 1343 CITY OF FAYETTEVILLE, Appellant, v. Joanna BIBB, Appellee. 89-243.

Page 493

781 S.W.2d 493

30 Ark.App. 31, 29 Wage & Hour Cas. (BNA) 1343

CITY OF FAYETTEVILLE, Appellant, v. Joanna BIBB, Appellee.

No. CA 89-243.

Court of Appeals of Arkansas Division I.

Dec. 20, 1989.

James N. McCord, Fayetteville, for appellant.

Thomas B. Burke, Fayetteville, for appellee.

JENNINGS, Judge.

This is an appeal from a jury verdict in the Washington County Circuit Court. Appellant, the City of Fayetteville, Arkansas, contends that the trial court erred in denying its motion for a new trial. Appellee, Joanna Bibb, contends on cross-appeal that the court erroneously denied her motion for attorney's fees. We affirm on direct appeal, but reverse and remand on cross-appeal.

Appellee went to work for the city in June of 1971. For the next fifteen years, she worked in various capacities for appellant until she was terminated on October 20, 1986. Her position at the time of her termination was that of business manager, at an annual salary of $21,961.00. She then brought this action seeking compensation for almost 2,000 hours of "compensatory time" earned between January of 1979 and her termination for time worked over and above a normal forty hour work week. There is no dispute that appellee legitimately worked the hours claimed.

Appellant moved for summary judgment, contending that there were no material issues of fact and that it was entitled to judgment as a matter of law. The trial court denied the motion, the case proceeded to jury trial, and the jury returned a verdict in favor of appellee for $20,779.44, which represented her hourly rate of pay at termination multiplied by the compensatory hours claimed.

Summary judgment is an extreme remedy and should only be granted when it is clear there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark.App. 33, 665 S.W.2d 904 (1984). The object of a summary judgment is not to try the issues but rather to determine whether there are issues to be tried; if there is any doubt whatever, it should be denied. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). Nevertheless, if a movant makes a prima facie case with its motion for summary judgment, with accompanying evidence, then the burden shifts to the other party, and that party must then come forward with proof to demonstrate that there is a genuine dispute on an issue of material fact. McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). Finally, even if the trial court is convinced that the moving party is entitled to summary judgment, it has discretion to deny the motion. Karnes v. Trumbo, 28 Ark.App. 34, 770 S.W.2d 199 (1989); McLain v. Meier, 612 F.2d 349 (8th Cir.1979).

Appellant argues that the trial court erred in refusing to grant summary judgment. Appellant contends that appellee, in order to recover money payment in lieu of her accumulated "comp time," must show that "such payment is authorized by legislative enactment or other proper authority," citing Riepe v. City of Independence, 525 S.W.2d 622, 624 (Mo.App.1975); Koudelka v. Village of Woodridge, 91 Ill.App.3d 884, 46 Ill.Dec. 268, 413 N.E.2d 1381 (1980); Rusk v. Whitmire, 91 Nev. 689, 541 P.2d 1097 (1975); Pootel v. City and County of San Francisco, 125 Cal.App.2d 378, 270 P.2d 553 (1954). A more complete statement of the general rule is found in Koudelka: "Generally, municipal employees are not entitled to compensation for overtime work in the absence of a valid contract or law authorizing it. Allowance of compensatory time off for extra hours worked does not necessarily authorize the payment of money in lieu thereof." 46 Ill.Dec. at 269, 413 N.E.2d at 1382, citing 4 McQuillan, Municipal Corporations, § 12.194a (3d ed. 1979).

Appellant presented two affidavits in support of its motion for summary judgment. The affidavits of Judy Huffaker, appellant's budget coordinator, and Scott Linebaugh, assistant city manager, stated that under the appellant's personnel policies appellee was not entitled to "overtime" pay, which they contend appellee was claiming. The affidavit filed by appellee stated that she understood from before and during her employment with appellant that she would be entitled to compensatory time for hours worked in excess of forty hours per week, and that she would be able to take that time off from work with pay while employed or would be paid the value of that time in the event of termination. It also stated that other city employees had been paid for accrued compensatory time upon termination of city employment. We think the appellee's affidavit was sufficient to raise an issue of fact as to whether the parties agreed that she would be paid for "comp time" on termination and that, in any event, the trial judge did not abuse his discretion in denying the motion.

Appellant also claims it was error for the trial judge to deny its motion for a new trial, because the evidence was not sufficient. "When a trial judge denies a motion for a new trial, the only issue on appeal is whether the verdict is supported by substantial evidence." Millsaps v. Rhinehart, 276 Ark. 147, 634 S.W.2d 98 (1982). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Bibb testified that the primary basis for her understanding that she was entitled to payment for unused comp time was the city personnel policy handbook which she received at the time of her employment. She testified that the handbook stated that employees would be compensated for accumulated unused comp time. Various employees' handbooks issued during the time Bibb worked for the city were introduced into evidence, together with other records relating to the city's compensatory time policy. She also testified that her understanding was based in part on conversations with her immediate superior and direction she had received to keep detailed records relating to compensatory time. There was evidence that other employees similarly situated to Bibb were paid for unused comp time at termination. Donald Grimes, the city manager at the time of Ms. Bibb's termination, testified that an employee who has accumulated a large number of comp time hours should be paid for those hours on termination. David Mackey, the purchasing, budget, and personnel officer from 1970 to 1978, testified that he had some responsibility for developing the policy on comp time and that it was his understanding that an employee who was terminated would be paid for unused comp time. This evidence was sufficient to raise a question of fact for the jury as to whether there was an agreement to pay for unused compensatory time on termination and constitutes substantial evidence to support the jury's verdict.

Just minutes before the trial began, appellant moved to amend its answer to allege a three year statute of limitations as an affirmative defense. The trial court denied the motion. During instruction conference, after the close of all the proof, the court on its own motion reversed its earlier decision and permitted the amendment, reasoning that no prejudice could result to the appellee because the city "doesn't have a good statute of limitations defense on the merits." The court then refused the city's proffered instruction, which would have limited recovery to "comp time hours" earned during the three years immediately preceding the date the complaint was filed.

Appellant contends that it was error to refuse the instruction. We do not agree. Assuming that it was appropriate for the court to permit the amendment in these circumstances, Ark.Code Ann. § 16-56-105 (1987) requires that suit be brought within three years "after the cause of action accrues." See Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937). Here, the appellee's cause of action did not accrue until her termination. Even if appellant were correct that appellee was limited to recovery only for compensatory time earned during the three years prior to termination, the proffered instruction tied recovery to the date of filing suit and was therefore an incorrect statement of law. The court was correct in refusing the instruction.

On cross-appeal, appellee contends that the trial court erred in refusing to consider an award of attorney's fees under Ark.Code Ann. § 16-22-308 (Supp.1987). That code section, originally enacted as Act 519 of 1987 provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs. ¹

The trial court declined to consider an award of...