{ "id": 6643883, "name": "ERC MORTGAGE GROUP, INC. v. Jerry LUPER", "name_abbreviation": "ERC Mortgage Group, Inc. v. Luper", "decision_date": "1990-09-12", "docket_number": "CA 89-519", "first_page": "19", "last_page": "24", "citations": [ { "type": "official", "cite": "32 Ark. App. 19" }, { "type": "parallel", "cite": "795 S.W.2d 362" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "761 P.2d 470", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10397035 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/p2d/761/0470-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "28 Ark. App. 68", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136957 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "attorney's fees awarded to prevailing party pursuant to 42 U.S.C. \u00a7 1988 even when recovery was \"extremely slight\" in view of complaint" }, { "parenthetical": "attorney's fees awarded to prevailing party pursuant to 42 U.S.C. \u00a7 1988 even when recovery was \"extremely slight\" in view of complaint" } ], "opinion_index": 0, "case_paths": [ "/ark-app/28/0068-01" ] }, { "cite": "242 So. 2d 464", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9739003 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/so2d/242/0464-01" ] }, { "cite": "248 N.Y.S. 200", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1930, "opinion_index": 0 }, { "cite": "139 Misc. 693", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 807687 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/misc/139/0693-01" ] }, { "cite": "125 S.W. 556", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1910, "opinion_index": 0 }, { "cite": "141 Mo. App. 637", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 8733923 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/mo-app/141/0637-01" ] }, { "cite": "566 P.2d 164", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10451187 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/p2d/566/0164-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "28 Ark. App. 241", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140318 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0241-01" ] }, { "cite": "104 S.W.2d 461", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1937, "opinion_index": 0 }, { "cite": "193 Ark. 1048", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411070 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ark/193/1048-01" ] }, { "cite": "289 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875459 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0252-01" ] }, { "cite": "23 Ark. App. 129", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138488 ], "weight": 4, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/23/0129-01" ] }, { "cite": "27 Ark. App. 27", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136408 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0027-01" ] } ], "analysis": { "cardinality": 575, "char_count": 10015, "ocr_confidence": 0.887, "pagerank": { "raw": 4.317327168994859e-07, "percentile": 0.9172474920352499 }, "sha256": "b417abf09e9be2ca26cd3a531ac8cda94b23ab5029299d6efd10e07753d80d93", "simhash": "1:1fcfa5373b3149d8", "word_count": 1688 }, "last_updated": "2023-07-14T21:12:24.429045+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Mayfield, JJ., agree." ], "parties": [ "ERC MORTGAGE GROUP, INC. v. Jerry LUPER" ], "opinions": [ { "text": "John E. Jennings, Judge.\nAppellee, Jerry Luper, brought this action against appellant, ERC Mortgage Group, Inc., alleging, among other things, breach of an employment contract. At the close of appellee\u2019s case below, appellant\u2019s motion for directed verdict was granted as to all counts except that for breach of contract. At the close of appellant\u2019s case the motion for directed verdict was renewed, was again denied, and the jury returned a verdict in favor of appellee for $5,602.24. Appellee was awarded attorney\u2019s fees of $1,500.00 plus costs. Appellant\u2019s motion for judgment notwithstanding the verdict was denied. On appeal, appellant argues two points: (1) that the trial court should have granted either appellant\u2019s motion for a directed verdict or motion for judgment notwithstanding the verdict because there was no substantial evidence of a breach of contract by appellant; and (2) that the court improperly awarded attorney\u2019s fees to the appellee. We find no error, and affirm.\nIn the fall of 1987 appellee, Jerry Luper, worked in Fort Smith as a closing agent, and had closed some home loans that were handled through appellant, ERC Mortgage Group, Inc. Employees and officers of ERC Mortgage Group began talking to Luper about the possibility of his coming to work for ERC as a home loan originator. The testimony by both Luper and Jane Brightop, who was president of ERC Mortgage at that time, was that there were ongoing negotiations during November and December of 1987 about aspects of the job, including compensation. Luper did not want to work on straight commission, and testified that an agreement was reached where he would be paid $1,000.00 a month plus commissions for one year. Luper was invited to the ERC Mortgage Group Christmas party, where he was handed a document captioned \u201cEmployment Plan,\u201d essentially a memorandum to Luper dated December 18,1987, signed by Austin Brightop, the company\u2019s state originations supervisor. The document purported to be an employment plan designed for Luper, renegotiate on an annual basis. It described a sliding commission scale, and stated that Luper would be given a $1,000.00 monthly expense allowance. The document stated that Brightop was pleased that Luper was joining the company beginning January 4, 1988. Luper testified that he accepted the terms at the Christmas party, and began work on January 4.\nIn late June or early July of 1988, Luper was informed by Steve Clark,, the company\u2019s assistant vice-president and Luper\u2019s supervisor, that as of August 1st Luper\u2019s monthly expense allowance would be cut to $500.00, and that as of September 1st his monthly expense allowance would be eliminated, effectively putting Luper on straight commission. Luper testified that he continuously questioned this reduction, asking Clark to have Jane Brightop call him. Luper said he never heard from Brightop.\nIn August, in the midst of this dispute, a question of possible impropriety in the preparation of some loan documents arose. Conflicting testimony was offered concerning the details, but Luper testified that the end result was his being forced to submit his resignation. Witnesses for ERC Mortgage Group testified that Luper had committed an error in the preparation of an employment verification form that would have led to his being fired had he not resigned. Four months after his resignation, Luper brought this action.\nAppellant argues that there was no substantial evidence of a breach of contract by it, and that the trial court should therefore have granted its motion for directed verdict or its motion for judgment notwithstanding the verdict. When asked to review the denial of a motion for directed verdict, this court examines the evidence, along with all reasonable inferences deducible from it, in the light most favorable to the party against whom the motion is sought; only if the evidence viewed in that light would require the setting aside of a jury verdict should a trial court grant a directed verdict. Thomas v. Allstate Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31 (1989); First Nat\u2019l Bank of Wynne v. Hess, 23 Ark. App. 129, 743 S.W.2d 825 (1988). Only when the proof of one party is so clear, convincing and irrefutable that no other conclusion could be reached by reasonable men, should the issue be taken from the jury and decided by the court. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986). A judgment notwithstanding the verdict may be entered only if there was no substantial evidence to support the jury verdict. First Nat\u2019l Bank of Wynne v. Hess, 23 Ark. App. 129, 743 S.W.2d 825 (1988).\nAppellant\u2019s contention is that there could not have been a contract because (1) the letter from Brightop to Luper was not signed by Luper, and (2) there was no \u201cmeeting of the minds\u201d and therefore no mutual agreement. There is no general requirement in the law of contracts that a contract or agreement be signed by both parties, although the statute of frauds requires certain contracts to be signed by \u201cthe party to be charged.\u201d In the case at bar the jury could find that the letter from Brightop was an offer, which is defined as \u201cthe manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.\u201d Restatement (Second) of Contracts \u00a7 24 (1981). \u201cUnless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.\u201d Restatement (Second) of Contracts \u00a7 30. \u201cAcceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.\u201d Restatement (Second) of Contracts \u00a7 50. Here the evidence would support a finding that the appellee accepted appellant\u2019s offer either verbally or by his subsequent performance. See Restatement of Contracts \u00a7 30 and \u00a7 50. While it is true that the terms of a contract must be reasonably certain, they are sufficiently so if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Restatement (Second) of Contracts \u00a7 33. The law does not favor the destruction of contracts because of uncertainty. Shibley v. White, 193 Ark. 1048, 104 S.W.2d 461 (1937). And while it is also true that a \u201cmeeting of the minds\u201d or a manifestation of mutual assent is a requirement for the formation of a contract, Restatement (Second) of Contracts \u00a7 17, the standard is an objective one. See Dziga v. Muradian Business Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106 (1989); Restatement (Second) of Contracts \u00a7 17, comment c. A manifestation of assent may be made wholly by spoken words or by conduct. See Restatement (Second) of Contracts \u00a7 19.\nOn the facts of the case at bar we cannot say there was no substantial evidence to support the jury\u2019s finding that there was a contract between the parties.\nAfter the jury returned the verdict for $5,624.00, Luper was awarded an attorney\u2019s fee by the court of $1,500.00 pursuant to Ark. Code Ann. \u00a7 16-22-308. That section provides in part:\nIn any civil action to recover on [a] . . . breach of contract, 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.\nAppellant agrees that an award of attorney\u2019s fees is discretionary with the trial court under the code provision, but contends that under the circumstances Luper was not the \u201cprevailing party.\u201d The basis of the argument is that six of the seven counts contained in Luper\u2019s complaint were dismissed on the appellant\u2019s motion at the close of Luper\u2019s case-in-chief.\nQuapaw Co. v. Varnell, 566 P.2d 164 (Okla. Ct. App. 1977), was a suit based on an oral contract of employment. The plaintiffs complaint contained four causes of action. Two of the causes of action were stricken by the Oklahoma Supreme Court on appeal from the trial court\u2019s denial of motion for summary judgment. The remaining two causes of action were submitted to a jury which awarded Varnell $6,000.00 on one and nothing on the other. Under an Oklahoma statute providing for the award of an attorney\u2019s fee to the prevailing party, the trial court found that both parties prevailed and awarded each an attorney\u2019s fee.\nThe Oklahoma Court of Appeals reversed and cited with approval Ozias v. Haley, 141 Mo. App. 637, 125 S.W. 556 (1910):\nThere can be but one prevailing party in an action at law for the recovery of a money judgment. It transpires frequently that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score but the one with the most points at the end of the contest is the winner, and ... is entitled to recover his costs.\nSee also Hansen v. Levy, 139 Misc. 693, 248 N.Y.S. 200 (N.Y. App. Term. 1930) and Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. Dist. Ct. App. 1970); cf. Garner v. Limbocker, 28 Ark. App. 68, 770 S.W.2d 673 (1989) (attorney\u2019s fees awarded to prevailing party pursuant to 42 U.S.C. \u00a7 1988 even when recovery was \u201cextremely slight\u201d in view of complaint). The Oklahoma Court of Appeals adopted the rule stated in Ozias, holding that Varnell was the prevailing party. The holding in Quapaw has since been expressly approved by the Oklahoma Supreme Court. The Company, Inc. v. Trion Energy, 761 P.2d 470 (Okla. 1988).\nWe agree with the view of the trial court here that the appellee was the \u201cprevailing party\u201d under Ark. Code Ann. \u00a7 16-22-308. There is no contention that the amount awarded was an abuse of the trial court\u2019s discretion.\nAffirmed.\nCooper and Mayfield, JJ., agree.", "type": "majority", "author": "John E. Jennings, Judge." } ], "attorneys": [ "Warner and Smith, by: G. Alan Wooten, for appellant.", "Phillip J. Taylor, for appellee." ], "corrections": "", "head_matter": "ERC MORTGAGE GROUP, INC. v. Jerry LUPER\nCA 89-519\n795 S.W.2d 362\nCourt of Appeals of Arkansas Division I\nOpinion delivered September 12, 1990\nWarner and Smith, by: G. Alan Wooten, for appellant.\nPhillip J. Taylor, for appellee." }, "file_name": "0019-01", "first_page_order": 43, "last_page_order": 48 }