Hopper v. Garner, 96-1423
| Decision Date | 12 May 1997 |
| Docket Number | No. 96-1423,96-1423 |
| Citation | 328 Ark. 516,944 S.W.2d 540 |
| Parties | Paul E. HOPPER, Appellant, v. Tom GARNER, Appellee. |
| Court | Arkansas Supreme Court |
Paul E. Hopper, Little Rock, for Appellant.
J. Scott Davidson, Batesville, Tom Garner, Glencoe, for Appellee.
This appeal involves a dispute over who is the rightful city attorney of Horseshoe Bend. The appellant, Paul Hopper, filed a usurpation-of-office action against the appellee, Tom Garner. The jury rendered a verdict for Garner, and Hopper appeals. Finding no reversible error, we affirm.
In 1994, Paul Hopper was elected city attorney of Horseshoe Bend, Arkansas. During litigation concerning another matter, Hopper discovered that two people had trespassed on his property. Hopper asked the prosecuting attorney to file a criminal trespass action against these individuals, but he refused. Hopper could not file the criminal action as city attorney because he was personally interested in the case. Therefore, Hopper asked Mayor Charles Mowder to appoint a special city attorney to litigate the case.
On Wednesday, October 4, 1995, Mayor Mowder appeared at Hopper's office to discuss the matter. When the mayor refused to appoint a special attorney, Hopper offered, "If you will sign the paperwork, I will give you an early Christmas present and resign as city attorney on Friday." Before leaving town the next morning, the mayor administered the oath of office to the appointed special city attorney who then filed the criminal trespass action in municipal court.
Meanwhile, Hopper placed on the mayor's desk a letter of resignation that said, "As we agreed last night, I hereby resign my office as City Attorney effective at 4:00 o'clock p.m. on Friday, October 6, 1995." Later that afternoon, Hopper discussed the matter with the chief of police who persuaded Hopper to tender his resignation in person when the mayor returned on October 6. Hopper then removed his letter of resignation from the mayor's desk. On Friday, October 6, 1995, the mayor returned to Horseshoe Bend and demanded that Hopper return his resignation letter. Hopper complied.
On October 9, 1995, the mayor sent the following letter to the special city attorney:
Since Paul Hopper has seen fit to resign as of Friday, October 6, 1995 at 4:00 p.m. there will be no need for your acting as special city attorney and we therefore rescind the authority and oath administered on Thursday, October 5, 1995. The new city attorney will handle this as well as all other matters.
The prosecuting attorney volunteered to handle the city's affairs pending the appointment of a new city attorney, and obtained a nolle prosequi of the criminal trespass action.
On November 8, 1995, Hopper attempted to withdraw his resignation by sending the following letter to the mayor and the City Council:
As my resignation was conditional and the condition was not met, and since the council has not accepted the resignation, I withdraw my resignation as City Attorney effective at 3:59 o'clock p.m. on October 6, 1995. I am this date reclaiming the office. At the council meeting on Monday, I will take my seat unless a majority of the members of the council agree that I should not.
At the aldermen's request, Hopper did not appear at the next city council meeting.
On November 15, 1995, the mayor hired Tom Garner as the new city attorney. The next day, Hopper informed Garner, the mayor, and the city council that he objected to Garner's appointment because he had effectively withdrawn his resignation. The City Council agreed to review the matter at its next meeting.
During the December 11, 1995, meeting, the city council rejected Hopper's attempted withdrawal of his resignation. The council also adopted resolution 95-07 thereby approving the November 15, 1995, appointment of Tom Garner as city attorney.
In response, Hopper filed a usurpation-of-office action under Ark.Code Ann. § 16-118-105 (1987), requesting ouster of Garner from the office and the fees and emoluments he received while serving as city attorney. Prior to trial, the parties stipulated that Garner received $8,870.85 for his services as city attorney. The jury rendered a verdict for Garner, and Hopper filed a timely notice of appeal.
For his first argument on appeal, Hopper claims that he is the rightful city attorney of Horseshoe Bend because he withdrew his resignation before it was accepted. Hopper is correct that under Arkansas law a city officer's resignation may be withdrawn anytime prior to its acceptance. Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952). Whether the resignation was actually withdrawn is, however, an issue to be resolved by the trier of fact. Id.
During the trial, Hopper argued that he withdrew his resignation in his November 8, 1995, letter to the mayor and city council. In this letter, Hopper declared that he was withdrawing his resignation, and that he would take his seat at the next city council meeting "unless a majority of the members of the council agree that [he] should not." (Emphasis added.) The council then voted to reject Hopper's withdrawal of his resignation. Based on these facts, the jury could have reasonably concluded that Hopper's withdrawal was conditioned upon the city council's approval. Thus, we hold that there was sufficient evidence from which the jury could have concluded that Hopper's resignation was never effectively withdrawn. Accordingly, we affirm on this point.
Next, Hopper asserts that the trial court erred when it granted Garner's request for a jury trial. According to the Arkansas Constitution, "the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy." Ark. Const. art. 2, § 7. The right to a trial by jury does not secure the right in all possible instances, but only in those cases that were so triable at common law. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988); Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).
Hence, the relevant inquiry is whether, Garner, as a defendant in a usurpation action, was constitutionally entitled to a jury trial. In Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887), we recognized that although there was no common law right to a jury trial in usurpation-of-office cases when the plaintiff merely requested ouster of the alleged usurper, such a right might exist if the plaintiff also made a claim for fees or emoluments. In Louisiana & Northwest R.R. Co. v. State, 75 Ark. 435, 88 S.W. 559 (1905), the plaintiff requested ouster and the return of the usurped property (the railroad franchise and the contractual rights growing out of it), and thus we found that it was entitled to a jury trial.
In his complaint, Hopper requested both the ouster of Garner from the office of city attorney, and the fees and emoluments he received while holding this office. Thus, according to Wheat and Louisiana, Garner had a constitutional right to a jury trial. In response, Hopper argues that because the parties stipulated to the amount of fees earned by Garner there was no factual issue to be resolved by the jury. Regardless of whether the amount of fees is liquidated or disputed, the jury must still decide the underlying factual issue of who is rightfully entitled to the office. Therefore, we conclude that the trial court did not err when it granted Garner his constitutional right to a jury trial in this case.
For his final argument on appeal, Hopper claims that the trial court improperly instructed the jury in several respects. As we have held on numerous occasions, a trial court must give a jury instruction if there is some evidence to support it. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Thus, we must decide whether there was sufficient evidence to warrant the giving of the following jury instructions.
In his first challenge to the jury instructions, Hopper asserts that the trial court erred when it gave, over his objection, the following instruction on resignation by implication:
It is not necessary that a resignation from a public office be couched in any particular words, it being only necessary that the person resigning evince a purpose to relinquish the office. No formal method is necessary, but the resignation may be written or oral, or it may be implied from conduct. In this regard, if you find that the plaintiff accepted an office or position which was incompatible to that of city attorney of Horseshoe Bend, Arkansas, you must find by implication that plaintiff resigned the office of city attorney of Horseshoe Bend, Arkansas.
If it is your finding that plaintiff resigned the office by accepting an office or position which was incompatible with that office, you must find that plaintiff could not withdraw his resignation.
On appeal, Hopper contends that there was no evidence that he "accepted an office or position which was incompatible to that of city attorney," and thus the judge should not have...
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