Culpepper v. Smith, 89-301

• Decision Date: 25 June 1990
• Docket Number: No. 89-301,89-301
• Parties: Charles CULPEPPER, d/b/a Chuck's Swimmin Whole, Appellant, v. C.D. SMITH, Wayne Matthews, John W. Cone and Horace J. Fikes, Appellees.
• Court: Arkansas Supreme Court

Page 293

792 S.W.2d 293

302 Ark. 558

Charles CULPEPPER, d/b/a Chuck's Swimmin Whole, Appellant, v. C.D. SMITH, Wayne Matthews, John W. Cone and Horace J.

Fikes, Appellees.

No. 89-301.

Supreme Court of Arkansas.

June 25, 1990.

Samuel E. Ledbetter, Little Rock, for appellant.

Jacob Sharp, Jr., Brian Allen Brown, Richard L. Angel, Coleen M. Barger, Little Rock, for appellees.

JESSE B. DAGGETT, Special Justice.

This court has jurisdiction of this appeal pursuant to Ark.Sup.Ct.R. 29(1)(o).

This case presents an appeal from a ruling of the Circuit Court of Desha County, Arkansas, granting summary judgments in favor of the appellees. By its final order, dated August 8, 1989, the court ruled:

The pleadings in this cause, along with the Depositions, Answers to Interrogatories, Admissions on file, together with the Affidavits, show there is no genuine issue as to any material fact and the Motions for Summary Judgment of Smith, Matthews, Cone and Fikes, should be and the same are hereby granted.

We find the ruling to be clearly erroneous.

The procedures to be followed and the assumptions to be made in reviewing rulings granting summary judgments have now become axiomatic. Summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. Saunders v. National Old Line Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979). The burden is on movant to demonstrate the absence of a genuine issue of fact. All emphasis is drawn against the moving party, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not appropriate. Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). The purpose of a summary judgment is not to try issues, but to determine if there are issues to be tried. If doubt exists, summary judgment should not be granted. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969); Southland Ins. v. Northwestern Nat'l Ins. Co., 255 Ark. 802, 502 S.W.2d 474 (1973). When considering the facts, the court should view the testimony relating thereto in the light most favorable to the party against whom the judgment is sought. Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981).

In this case, the appellant, Charles Culpepper, is a contractor doing business as "Chuck's Swimmin Whole". He resides in Dumas, Arkansas, and his business is selling and installing swimming pools. He entered into an agreement on or about June 27, 1985, with appellee, C.D. Smith, to install a swimming pool at Smith's residence in Pine Bluff, Arkansas. At that time, the projected date of commencement of work was estimated to be July 12, 1985. Contemporaneously with the execution of the contract, Smith made a down payment to Culpepper in the amount of $9,959.00.

On or about July 12, 1985, Smith contacted Culpepper advising him that he had decided to erect a roof structure over the pool, using his own carpenter, and requested Culpepper to delay commencement of his work so as to coordinate the efforts of both contractors. Culpepper agreed to do so.

Between July 12 and August 20, Smith contacted Culpepper and told him that Smith's wife no longer wanted the pool. He was undecided as to what he would do and requested that construction be put off again. Later, Smith demanded a return of his money. Culpepper then refused to refund the deposit in its entirety, stating that he wanted to consider the matter.

On August 21, 1985, one day after the original projected completion date, Horace J. Fikes, Jr., as attorney for Smith, sent a letter to Culpepper demanding that Culpepper return Smith's down payment. In this letter, Fikes advised Culpepper that he had contacted the Jefferson County Prosecuting Attorney's office and had been told by them to write Culpepper advising him that unless he returned the down payment to Smith within five (5) days, criminal charges would be filed against him.

On September 4, 1985, Fikes wrote a letter to Wayne Matthews, the Prosecuting Attorney for Jefferson County, Arkansas, requesting that criminal charges be filed against Culpepper unless Culpepper returned the down payment before September 9, 1985. A copy of the letter was sent to Culpepper.

On September 9, Smith had a meeting with Culpepper, demanded the return of his money, and told him that he (Smith) "would have him picking peas" unless his money was returned. Smith testified that what he meant by this statement was that he would have Culpepper put in prison unless the money was returned. Smith advised Culpepper that he was revoking the contract and again demanded a refund of his down payment. On September 23, 1985, Culpepper wrote Smith, saying that he would not agree to a cancellation of the contract, but he would install the pool when advised to do so.

Matthews called the State Police Criminal Investigation Division (CID) Officer to conduct an investigation, which took place on October 2, and both Smith and Culpepper were interviewed. A report of this investigation was not reduced to writing until October 15-16, 1985. The report revealed the existence of a civil dispute over the contract between Smith and Culpepper. Matthews, in his affidavit filed in support of his motion for summary judgment, states that the investigation confirmed what Fikes had previously told him.

Sometime prior to October 10, Smith informed the deputy prosecuting attorney Jodi Raines Dennis that he could supply names of witnesses who would testify that Culpepper had taken deposits from other parties and had failed to perform as contracted. Deputy Dennis, by her affidavit filed in support of the motion for summary judgment, stated that she considered this evidence to be vital and would enable them to procure a conviction. The deputy testified that she relied heavily upon Smith's statement as to the witnesses and intimated that she would not have filed the charges in the absence of such information.

Smith, in his deposition, admitted that he never provided such witnesses and actually never knew the names of any such witnesses.

On or about October 10, 1985, and December 9, 1985, appellee, John W. Cone, as deputy prosecuting attorney, swore out a criminal information, charging Culpepper with the crime of "theft by deception for knowingly obtaining the property of C.D. Smith by deception and with the purpose of depriving C.D. Smith of such property." A bench warrant was issued for the arrest of Charles Culpepper and he was taken into custody. The case was set for trial on March 20, 1986, on which date the State nolle prossed all charges against Culpepper.

On April 11, 1986, C.D. Smith filed the present civil action against Culpepper in the Circuit Court of Desha County, Arkansas, alleging breach of contract by Culpepper and seeking the return of his money. In response to the complaint filed against him, Culpepper filed an answer and counter-claim against Smith and filed a third party complaint against Fikes, Matthews and Cone, alleging malicious prosecution, abuse of process, and civil conspiracy against Smith, Fikes, Matthews and Cone.

On April 18, 1988, Smith filed his motion for summary judgment. On December 8, 1988, Fikes filed his motion for summary judgment. On April 21, 1989, appellees, Matthews and Cone, filed their motions for summary judgment. Culpepper responded to each motion by filing affidavits, excerpts from deposition testimony, and other documents. A hearing was conducted, and on August 9, 1989, the trial court granted all motions and entered a final judgment in favor of each defendant.

The sole issue presented to us by this appeal is the propriety of the granting of these summary judgments. A resolution of this issue involves a simple determination of whether or not there is a genuine issue of material fact remaining to be tried. The legal questions, some of which are mentioned and referred to in the briefs filed, are not before us for present consideration and will become applicable only when the case is tried on its merits and the factual issues fully developed.

1. Summary Judgment granted C.D. Smith

There is clearly a relevant, material, and genuine issue of fact for determination in the counter-claim against C.D. Smith. Concisely stated, Smith defends against the counter-claim contending that he is entitled to a summary judgment for the reason that he is an uneducated, lay citizen without any technical knowledge of criminal law or the propriety or impropriety of invoking criminal procedures to collect a civil debt. He states that all he did was to suggest to his counsel that Culpepper be told that he was going to be imprisoned if he did not "pay off." This contention is perhaps logical from the lay point of view, but there is more to its application than "meets the eye."

The law in Arkansas, and in general, is well established that "where the defendant makes a full, fair and truthful disclosure of all the facts known to him before competent counsel and then acts bona fide upon the advice of that attorney in instituting a prosecution, the courts are in general agreement that this may be given in evidence on the issue of existence of probable cause, and if provable, will constitute a good defense," Wallace, Malicious Prosecution--The Law in Arkansas, 22 Ark.L.Rev. 340 (1968); Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931); Rogers v. General Elec. Co., 341 F.Supp. 971 (W.D.Ark.1972). The general rule contemplates--if it is not actually conditioned upon--a full, complete, honest, and impartial disclosure of all facts known to the defendant. Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982); Crockett Motor Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187 (1984). Smith fell considerably short of making such a disclosure by failing to reveal two very essential facts. First, he failed to disclose that he had asked for an extension or delay in the performance of his contract with Culpepper and, in fact, subsequently...