Jenkins v. Aps Ins., LLC

• Decision Date: 18 December 2013
• Docket Number: No. CV–13–426.,CV–13–426.
• Citation: 431 S.W.3d 356,2013 Ark. App. 746
• Parties: Pearl JENKINS, Appellant v. APS INSURANCE, LLC, Appellee.
• Court: Arkansas Court of Appeals

2013 Ark. App. 746

431 S.W.3d 356

Pearl JENKINS, Appellant

v.APS INSURANCE, LLC, Appellee.

No. CV–13–426.

Court of Appeals of Arkansas.

Dec. 18, 2013.

Scholl Law Firm, PLLC, Little Rock, by: Scott A. Scholl, for appellant.

Hopkins Law Firm, A Professional Association, Little Rock, by: Ryan J. Caststeel, for appellee.

ROBERT J. GLADWIN, Chief Judge.

This case returns after we dismissed an earlier appeal for lack of a final order. Jenkins v. APS Ins., LLC, 2012 Ark. App. 368, 2012 WL 1943626. In this appeal, Pearl Jenkins challenges the judgment of the Pulaski County Circuit Court entered on a jury's verdict finding that she misappropriated trade secrets and that awarded compensatory and punitive damages to APS Insurance, LLC. Jenkins raises five points, arguing that the tort claims brought by APS were preempted by the Arkansas Trade Secrets Act and that the damage awards were not supported by the evidence, were contrary to the law, and were excessive. We affirm.

In 2003, David Donley joined Steve Perry to form APS Insurance. APS also offered payroll and tax-preparation services. Jenkins, a mutual friend of both Donley and Perry, was hired to be APS's customer service representative. On Friday, June 13, 2008, Donley removed files and software from APS's office, and formed his own firm, Donley & Associates Insurance, LLC (D & A). Donley also had Jenkins email him the list of all of APS's clients and then delete the list from APS's computer. When Perry returned to work the following Monday, he discovered the missing and the deleted files and was notified that Donley had established D & A and that Jenkins had left APS's employment to join D & A.

On August 28, 2008, APS sued Donley for injunctive relief and other damages. APS later amended its complaint to add Jenkins and D & A as defendants. In its complaint, APS asserted claims for violation of the Theft of Trade Secrets Act; ¹ computer fraud and computer trespass; ² breach of fiduciary duty against Donley and Jenkins; conversion; trespass on the case; violation of the Deceptive Trade Practices Act against Donley and D & A; tortious interference with contractual relations and business expectancies; and civil conspiracy. It also requested an accounting, that a constructive trust and/or equitable lien be imposed against all defendants, and reserved the right to plead further. Separate answers were filed by Donley and D & A and by Jenkins. In her answer, Jenkins asserted that APS's exclusive remedy was the cause of action under the Trade Secrets Act.

Jenkins filed two identical counterclaims against APS and Perry, asserting claims for abuse of process, malicious prosecution, and outrage. She nonsuited the first counterclaim and the second was stricken as being filed in violation of the court's scheduling order.

After David Donley, individually, filed for bankruptcy protection, the case against Jenkins and D & A proceeded to trial before a jury. After APS rested its case, it withdrew its claims for breach of fiduciary duty against Jenkins and Donley, its trespass claim, and its claim under the Deceptive Trade Practices Act against D & A. In a verdict signed by ten jurors, APS was awarded $29,066.22 in actual damages and punitive damages of $15,000 against Jenkins.³

The judgment entered on the jury's verdict noted that the issues against Donley could not be tried because of a pending bankruptcy, and that APS had reserved its rights to proceed against Donley “consistent with further orders and proceedings of the United States Bankruptcy Court.” The judgment did not address APS's claims for equitable relief, i.e. accounting and imposition of a constructive trust or equitable lien. It also did not formally dismiss the claims APS withdrew during trial.

After the circuit court denied Jenkins's posttrial motion, Jenkins attempted to appealfrom the judgment. We dismissed the appeal for lack of a final order. Jenkins, supra. We also pointed out several deficiencies with both the briefs and the record. Id.

Following remand, Jenkins filed a motion seeking to have the circuit court certify the judgment as final pursuant to Arkansas Rule of Civil Procedure 54(b). APS opposed the motion, pointing out that its claims for injunctive and equitable relief were still pending.

David Donley entered into a consent judgment in favor of APS in the amount of $150,062.98. This order stated that APS agreed to forbear enforcement of the consent judgment in accordance with the parties' settlement agreement. Jenkins filed a timely notice of appeal from this order.

After a hearing on the pending motions, the circuit court entered an order granting injunctive relief against Jenkins. The court also ordered Jenkins to file an accounting of all transactions between Donley, D & A, and Jenkins and all former APS clients. The court further imposed a constructive trust and equitable lien against Jenkins and any property or funds she received through transactions with former APS clients. The court further ruled that all other causes of action and relief sought by APS had merged into the judgment previously entered. Jenkins's request for Rule 54(b) certification was denied as moot.⁴ This appeal followed.

Our standard of review of the denial of either a motion for directed verdict or a motion for judgment notwithstanding the verdict is whether the jury's verdict is supported by substantial evidence. ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008). We will reverse only if there is no substantial evidence to support the jury's verdict, and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury's verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach a different conclusion. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

We must first determine whether any of Jenkins's arguments on appeal are preserved for our review. This has to do with the nature and scope of the arguments Jenkins made at trial and in her posttrial brief.

At the conclusion of APS's case, Jenkins made a motion for directed verdict, arguing that there was no evidence that the information taken even qualified as “trade secrets.” She also moved for a directed verdict on the computer-fraud and trespass claims. Jenkins further moved for a directed verdict on the conversion and on the tortious-interference claims. She did not adopt any of the arguments for directed verdict made by D & A. The circuit court denied the motion. At the close of the defense case, the circuit court stated that all motions made at the close of APS's case were renewed and denied. APS then presented the rebuttal testimony of Jerry Crowder. No motions for directed verdict were made or renewed.

Although Jenkins filed her posttrial motion as one for judgment notwithstanding the verdict, she also asserted that she was entitled to a new trial under Ark. R. Civ P. 59(a)(4), (5), and (6). The distinction between a motion for new trial and a directed-verdict motion is a fine one. Wal–Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). Moreover, we should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 111, 737 S.W.2d 159, 160–61 (1987). In Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 573, 832 S.W.2d 224, 225 (1992), the supreme court held that a motion to vacate that stated that the judgment was void because “it is contrary to the facts, the law, public policy and is clearly contrary to the preponderance of the evidence,” was really a motion for a new trial under Ark. R. Civ. P. 59(a)(6).

In her posttrial motion, Jenkins made the arguments she now raises on appeal. In effect, Jenkins is raising legal arguments concerning whether APS's tort claims against her were preempted by the Trade Secrets Act and that punitive damages are unavailable under the Act. As such, her posttrial motion could properly be considered a motion for new trial under Ark. R. Civ. P. 59(a)(6). The argument regarding excessiveness of the compensatory and punitive damages was preserved by the posttrial motion because it asserted that the “damages awarded were excessively large and were so large as to indicate that such were awarded as a result of passion or prejudice.” By tracking the language of Ark. R. Civ. P. 59(a), the motion was sufficient to preserve the issue. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). We believe that these arguments are properly preserved for our review.

Jenkins also raises issues concerning whether APS properly proved its damages, thus challenging the sufficiency of the evidence. However, a motion for new trial is not a challenge to the sufficiency of the evidence. Wal–Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). In order to challenge the sufficiency of the evidence, Jenkins was required to move for a directed verdict at “the close of all the evidence.” SeeArk. R. Civ. P. 50(e). Jenkins failed to do so after APS presented rebuttal testimony, resulting in a waiver of her sufficiency-of-the-evidence arguments. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Bronakowski v. Lindhurst, 2009 Ark. App. 513, 324 S.W.3d 719.

Jenkins first argues that APS's claims are preempted by the Arkansas Trade Secrets Act, and, therefore, the circuit court erred by not granting her motion for summary judgment. Although...