Mccourt Mfg. Corp. v. Rycroft

• Decision Date: 04 June 2009
• Docket Number: No. 08-653.,08-653.
• Citation: 2009 Ark. 332,322 S.W.3d 491
• Parties: McCOURT MANUFACTURING CORP., Appellant, v. Dave RYCROFT, Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 332

322 S.W.3d 491

McCOURT MANUFACTURING CORP., Appellant,

v.Dave RYCROFT, Appellee.

No. 08-653.

Supreme Court of Arkansas.

June 4, 2009.

COPYRIGHT MATERIAL OMITTED.

Thompson and Llewellyn, P.A., by: William P. Thompson and James M. Llewellyn, Jr., Fort Smith, for appellant.

Pryor, Robertson, Beasley & Smith, PLLC, by: C. Brian Meadors, Fort Smith, for appellee.

JIM HANNAH, Chief Justice.

McCourt Manufacturing Corporation (the Corporation) appeals a judgment entered on a jury verdict in favor of Dave Rycroft, a former employee. The judgment awarded Rycroft $12,498.15 in unpaid commissions and a statutory penalty. The Corporation asserts that the jury verdict is not supported by substantial evidence and that the circuit court erred in submitting to the jury the question of whether appellee Dave Rycroft satisfied the penalty requirements of Arkansas Code Annotated section 11-4-405 (Repl.2002). The Corporation further alleges that the circuit court erred in finding that the accrual of penalty in this case extended beyond the sixty-day period set out in Arkansas Code Annotated section 11-4-405(a)(2). Additionally, the Corporation asserts that the circuit court erred in failing to instruct the jury on its waiver and estoppel defenses. We hold that the circuit court erred in submitting to the jury the question of whether Rycroft satisfied the penalty requirements of section 11-4-405. Because we reverse the circuit court on this first issue, we need not address the second issue regarding the sixty-day period. We affirm the circuit court's refusal to instruct the jury on the Corporation's affirmative defenses of estoppel and waiver and the award of $12,498.15 for commissions due by Rycroft. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e).

This case was originally appealed to the court of appeals. See McCourt Mfg. Corp. v. Rycroft, 102 Ark. App. 272, 284 S.W.3d 84 (2008). The court of appeals held that the circuit court erred in denying the Corporation's motion for directed verdict on application of the penalty, rendering the issue of whether the accrual of the penalty could be expended beyond sixty days moot. The court of appeals affirmed the award of $12,498.15 in commissions due Rycroft and the circuit court's refusal to instruct the jury on the Corporation's affirmative defenses of estoppel and waiver. The case comes to this court by way of a petition for review. When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

Rycroft was hired in March 2005 to supervise sales at the Corporation. Rycroft alleges that Charles McCourt (McCourt) offered him wages comprised of a salary plus .5% commission ¹ on sales, and that he accepted that offer. McCourt denies having agreed to any commission. Commissions at the Corporation were paid quarterly, and the first quarter ended a few days after Rycroft was hired. He received no commission check at that time and said nothing because he had only worked a few days. However, at the end of the next quarter in June, Rycroft again received no commission check. He spoke to his immediate supervisor, Mark Price, who told him to speak with McCourt because McCourt had hired Rycroft. Rycroft alleges that McCourt denied that an agreement had been made to pay a commission. Rycroft received no commission in June and was given no promise that a commission would be paid. Rycroft testified that he understood something might be done about the commissions in the future. He remained with the Corporation until January 16, 2006. On January 23, 2006, Rycroft's attorney had a letter hand delivered to the Corporation by messenger demanding payment of the commission. The messenger was unable to identify the “guy” she hand delivered the letter to; however, she was able to testify that she did not deliver it to Mark Price, Rycroft's immediate supervisor, or Charles McCourt. There was no proof the letter was delivered to Judy Joyce, who was responsible for the Corporation's payroll. Suit was filed in February 2006. The circuit court entered final judgment awarding Rycroft a judgment in the principal amount of $12,498.15, plus prejudgment and postjudgment interest. Rycroft was further awarded a penalty of $164.38 per day under Arkansas Code Annotated section 11-4-405 beginning January 17, 2006, and continuing until the $12,498.15 is paid.

Procedural Bar

As an initial issue, we address Rycroft's assertion that the Corporation is procedurally barred from challenging the jury verdict because, while it moved for a directed verdict at the close of all the evidence, it did not move for a directed verdict at the close of the plaintiff's case. Rycroft cites us to Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994), and Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996). Beginning in Stroud, this court required a directed-verdict motion at the close of the plaintiff's case, in addition to a directed-verdict motion at the close of all the evidence, and relied upon Arkansas Rule of Civil Procedure 50 for that requirement:

In order to preserve their sufficiency of the evidence argument for this court's consideration, a motion for a directed verdict must have been made at the close of the plaintiff's case-in-chief, and again at the conclusion of all the evidence. ARCP Rule 50(a) and (e).

Stroud, 317 Ark. at 142, 875 S.W.2d at 853. Clowney and Houston v. Knoedl, 329 Ark. 91, 95, 947 S.W.2d 745, 747 (1997), relied upon Stroud and stated that a motion for a directed verdict must be made not only at the close of all the evidence, but also at the close of the plaintiff's case. Rule 50(a) provides: “A party may move for a directed verdict at the close of the evidence offered by an opponent.... A party may also move for a directed verdict at the close of all the evidence.” Rule 50(e) provides, in pertinent part, that where a party challenges the sufficiency of the evidence, a party must move for a directed verdict at the close of all the evidence or the issue is waived on appeal. Stroud, Clowney, and Houston are inconsistent with Rule 50.

As noted, the Corporation moved for a directed verdict at the close of all the evidence. The Corporation thus complied with Rule 50. To the extent that Stroud, Clowney, and Houston make a directed-verdict motion mandatory at the close of the plaintiff's case to preserve a sufficiency-of-the-evidence argument, they are overruled. ²

Section 11-4-405

At issue is whether Rycroft satisfied the requirements of section 11-4-405. We are thus called upon to interpret a statute:

Reviewing issues of statutory interpretation, this court first construes a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P., 374 Ark. 489, 288 S.W.3d 627 (2008). When the language of a statute is plain and unambiguous, conveying a clear and definite meaning, the court does not resort to the rules of statutory construction. Id. If there is an ambiguity, the court looks to the legislative history of the statute and other factors, such as the language used and the subject matter involved. Id. The court strives to reconcile statutory provisions relating to the same subject to make them sensible, consistent, and harmonious. Id.

City of Jacksonville v. City of Sherwood, 375 Ark. 107, 113, 289 S.W.3d 90, 94-95 (2008).

Section 11-4-405 originated in Act 61 of 1889 and was last amended in Act 210 of 1905. Under the original act, the section applied only to railway companies. “The statute was passed to prevent railroads thus delaying the payment of their debts to their employees, especially the helpless class dependent upon their labor for their daily sustenance.” St. Louis Sw. Ry. Co. v. Brown, 75 Ark. 137, 138, 86 S.W. 994, 995 (1905). Act 210 of 1905 extended the statute to cover “all companies and corporations doing business in this State.” In Wisconsin & Arkansas Lumber Co. v. Reaves, 82 Ark. 377, 379, 102 S.W. 206, 207 (1907), handed down after the passage of Act 210, this court stated as follows:

[T]o protect the employees of corporations, many of whom are day laborers and dependent on their daily wages for support and maintenance, and who are not in a position to enter into expensive litigation, the law seeks to compel payment without suit by making it in the interest of the corporation to promptly pay the unpaid wages of the discharged employee.

Section 11-4-405 provides in pertinent part as follows:

(a)(1) Whenever any railroad company or corporation or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad bridge shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of the servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of the discharge or refusal to longer employ.

(2) Any servant or employee may request of his foreman or the keeper of his or her time to have the money due him or her, or a valid check therefor, sent to any station where a regular agent is kept. If the money or a valid check therefor does not reach the station within

seven (7) days from the date it is so requested, then, as a penalty for the nonpayment, the wages of the servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid. However, the wages shall not continue more than sixty (60) days unless an action therefor shall be commenced within that time.

(b) This section shall apply to all companies and corporations doing business in this state and to all servants and employees thereof. Any servants or employees who shall hereafter be discharged or refused

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