{ "id": 6139287, "name": "Jim CALDWELL d/b/a Caldwell Enterprises v. Roger JENKINS and Patricia Jenkins", "name_abbreviation": "Caldwell v. Jenkins", "decision_date": "1993-06-23", "docket_number": "CA 92-1304", "first_page": "157", "last_page": "168", "citations": [ { "type": "official", "cite": "42 Ark. App. 157" }, { "type": "parallel", "cite": "856 S.W.2d 37" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "268 Ark. 1070", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715533 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "1072" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ark/268/1070-01" ] }, { "cite": "297 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891389 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "224-25" }, { "page": "887" }, { "page": "224" }, { "page": "887" }, { "page": "225" }, { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/ark/297/0220-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-90-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "299 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888396 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "185" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ark/299/0182-01" ] }, { "cite": "1 Ark. App. 84", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137906 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0084-01" ] }, { "cite": "10 Ark. App. 395", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142896 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "401-02" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/ark-app/10/0395-01" ] }, { "cite": "269 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712395 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "361" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/ark/269/0359-01" ] }, { "cite": "257 Ark. 90", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717861 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "92" }, { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ark/257/0090-01" ] }, { "cite": "102 S.W.2d 841", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1937, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "193 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411122 ], "year": 1937, "pin_cites": [ { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/ark/193/0816-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-90-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "37 Ark. App. 51", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136848 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "59" }, { "page": "929", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/ark-app/37/0051-01" ] }, { "cite": "265 Ark. 928", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664668 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "933" }, { "page": "30-31" } ], "opinion_index": 1, "case_paths": [ "/ark/265/0928-01" ] }, { "cite": "590 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "550" } ], "opinion_index": 1 }, { "cite": "409 So.2d 507", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9549355 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "509" } ], "opinion_index": 1, "case_paths": [ "/so2d/409/0507-01" ] }, { "cite": "891 F.2d 594", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532038 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "597" } ], "opinion_index": 1, "case_paths": [ "/f2d/891/0594-01" ] }, { "cite": "15 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "parenthetical": "that act which was referred to at the beginning of this dissent" } ], "opinion_index": 1 }, { "cite": "218 F.2d 174", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 522793 ], "year": 1954, "pin_cites": [ { "page": "182" } ], "opinion_index": 1, "case_paths": [ "/f2d/218/0174-01" ] }, { "cite": "28 Ark. App. 330", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141715 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark-app/28/0330-01" ] }, { "cite": "292 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871387 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "233-34" }, { "page": "160" } ], "opinion_index": 1, "case_paths": [ "/ark/292/0225-01" ] }, { "cite": "279 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746988 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/279/0004-01" ] }, { "cite": "309 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906115 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/309/0001-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 4-90-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 4-90-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 1 }, { "cite": "15 U.S.C. \u00a7 1989", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "page": "(1982)" } ], "opinion_index": 1 }, { "cite": "86 Stat. 963", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 1 }, { "cite": "15 U.S.C. \u00a7 1984", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "opinion_index": 1 }, { "cite": "297 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891389 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "223" }, { "page": "887" } ], "opinion_index": 1, "case_paths": [ "/ark/297/0220-01" ] }, { "cite": "299 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888396 ], "weight": 8, "year": 1989, "pin_cites": [ { "page": "185-86" }, { "page": "311" }, { "page": "185" }, { "page": "311" }, { "page": "184" }, { "page": "311" } ], "opinion_index": 1, "case_paths": [ "/ark/299/0182-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-90-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1991, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 943, "char_count": 21918, "ocr_confidence": 0.917, "pagerank": { "raw": 7.349410823568316e-08, "percentile": 0.4409724273500115 }, "sha256": "95270c3092a1f1b22b2df696733cc189bf3cbc504f6947ee7d87f1e957e7a2a5", "simhash": "1:97fce65c334ed676", "word_count": 3673 }, "last_updated": "2023-07-14T21:37:01.057819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, J., concurs in part; dissents in part.", "Cooper, J., dissents.", "Cooper, J., joins in this dissent." ], "parties": [ "Jim CALDWELL d/b/a Caldwell Enterprises v. Roger JENKINS and Patricia Jenkins" ], "opinions": [ { "text": "John E. Jennings, Chief Judge.\nThe appellees, Roger and Patricia Jenkins, filed suit in Phillips County Circuit Court against Jim Caldwell, the appellant, seeking damages based on Caldwell\u2019s sale of a car to them, allegedly with knowledge that the odometer had been turned back. The complaint set out two theories of recovery: common law fraud (with a claim for punitive damages) and violation of Ark. Code. Ann. \u00a7 4-90-204 (Repl. 1991), which prohibits the sale of a motor vehicle with knowledge that the mileage registered on the odometer has been altered. The jury returned a verdict in favor of appellees and awarded them $4,635.00 in compensatory damages. Although the jury did not assess punitive damages, the circuit judge, pursuant to Ark. Code Ann. \u00a7 4-90-203 (Repl. 1991), increased the amount of damages awarded to $9,270.00 and awarded attorney\u2019s fees in the sum of $4,904.50.\nFor reversal, three arguments are made: that the attorney\u2019s fees awarded were excessive; that the court abused its discretion in doubling the amount of damages awarded by the jury; and that the trial court should have granted a directed verdict for the appellant. We find no error and affirm.\nAppellant first argues that the trial court abused its discretion in granting appellees\u2019 attorney an unreasonable amount of attorney\u2019s fees. Arkansas Code Annotated \u00a7 4-90-203 provides that \u201c[a]ny person injured by a violation of this subchapter shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorney\u2019s fee. . . .\u201d When attorney\u2019s fees are authorized by statute, the amount to be awarded lies within the broad discretion of the trial court. While there is no fixed formula to be used in setting a reasonable fee, Federal Life Insurance Co. v. Hase, 193 Ark. 816, 825, 102 S.W.2d 841, 845 (1937), the supreme court has adopted the list of factors to be considered set out in the American Bar Association\u2019s Code of Professional Responsibility. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 92, 514 S.W.2d 224, 226 (1974). These factors include the time and labor required and the results obtained. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 361, 601 S.W.2d 836, 837 (1980). We have recognized the superior position of the trial judge to determine a reasonable attorney\u2019s fee because of his acquaintance with the record and the quality of services rendered. Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 401-02, 664 S.W.2d 886, 890 (1984); Farm Bureau Mut. Ins. Co. v. Kizziar, 1 Ark. App. 84, 613 S.W.2d 401 (1981). The case at bar was tried to a jury, the record on appeal is 400 pages long, and the recovery in the trial court was substantial. On these facts, we cannot say the trial court\u2019s award was an abuse of discretion.\nAppellant also argues that the trial court abused its discretion by doubling the amount of damages awarded by the jury. In addition to providing for the award of attorney\u2019s fees, \u00a7 4-90-203 provides that the court in its discretion may increase an award of damages to an amount not to exceed three times the actual damages sustained or $1,500.00, whichever is greater. Appellant contends that, because the jury refused to assess punitive damages, it was error for the circuit judge to double the amount of compensatory damages pursuant to this section. His argument is that, by requesting punitive damages, the appellees waived any rights they might have under Ark. Code Ann. \u00a7 4-90-203 to treble damages. This argument was not made to the trial court, and no authority is cited to support it. Had the appellees obtained an award of punitive damages the situation might be different, but given the fact that only compensatory damages were awarded by the jury, the trial court clearly had authority under the statute to double the amount of damages. See Currier v. Spencer, 299 Ark. 182, 185, 772 S.W.2d 309, 311 (1989).\nFinally, appellant argues that there was insufficient evidence presented to support a verdict against appellant. We do not agree. The statute in issue, Ark. Code Ann. \u00a7 4-90-204(d) (Repl. 1991), provides that no person shall sell or offer for sale any motor vehicle with knowledge that the mileage registered on the odometer has been altered so as to reflect a lower mileage than the motor vehicle has actually been driven without disclosing such fact to prospective purchasers. Appellant does not argue on appeal that a disclosure was made.\nAppellant testified that he had no knowledge that the odometer on the car sold to appellee had been rolled back and showed a false reading. However, appellee Patricka Jenkins testified that, subsequent to appellees\u2019 purchase of the vehicle, she confronted appellant about appellees\u2019 suspicions in that regard. She stated that appellant told her that he did not turn back the odometer but that he knew who did. Appellant testified that the man that sold him the car gave him an odometer statement dated November 28, 1989, which showed the mileage on the car to be 40,090 miles. However, the record reflects that the invoice appellant gave appellees when they purchased the car was dated the following day, November 29,1989, and showed the mileage to be approximately 8,000 miles less than the statement dated the previous day. The car actually had been driven more than 79,000 miles. The odometer statement dated December 1,1989, given by appellant to the appellees shows the car\u2019s mileage as 40,352.\nWhether a person has sold a motor vehicle with knowledge that the mileage registered on the odometer has been altered is a question of fact and evidence of such alteration is often circumstantial. Boren v. State, 297 Ark. 220, 224-25, 761 S.W.2d 885, 887 (1988). Evidence of alteration is shown by contrasting a previously higher odometer reading and the lower reading at the time the vehicle is sold to the complaining party. See Boren v. State, 297 Ark. at 224, 761 S.W.2d at 887. It is the responsibility of the jury to determine credibility and to settle disputed questions of fact. Neugebauer v. Marlin, 268 Ark. 1070, 1072, 598 S.W.2d 446, 447 (1980). Furthermore, it is the jury\u2019s sole prerogative to evaluate the conflicting evidence and draw its own inferences; the jury may draw any reasonable inference from the evidence presented. Boren v. State, 297 Ark. at 225, 761 S.W.2d at 888. The record reflects that there was sufficient evidence from which the jury could find that the appellant sold the vehicle to appellees in violation of \u00a7 4-90-204.\nAffirmed.\nMayfield, J., concurs in part; dissents in part.\nCooper, J., dissents.", "type": "majority", "author": "John E. Jennings, Chief Judge." }, { "text": "Melvin Mayfield, Judge,\nconcurring and dissenting. Although I concur with the majority opinion in affirming the attorney\u2019s fee allowed by the trial court, I cannot agree with the majority opinion in affirming the trial court\u2019s increase of compensatory damages. To explain my dissent, I first note that, as stated in appellant\u2019s abstract, the amended complaint filed by the appellees alleged three causes of action.\nOne cause of action was based on 15 U.S.C. \u00a7 1984 (1982), which provides that \u201cno person shall disconnect, reset, or alter or cause to be altered, the odometer of any motor vehicle with intent to change the number of miles indicated therein.\u201d This section is part of Title IV of the Federal Motor Vehicle Information and Cost Savings Act of 1972 (Pub. L. No. 92-513, 86 Stat. 963). Section 409 of the Act is codified at 15 U.S.C. \u00a7 1989(1982) and provides as follows:\n(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of \u2014\n(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and\n(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.\n(b) An action to enforce any liability created under subsection (a) of this section, may be brought in a United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises.\nThe second cause of action asserted in the amended complaint was based upon an alleged violation of Ark. Code Ann. \u00a7 4-90-206 (Repl. 1991), committed by not giving appellees an accurate odometer statement. Recovery of damages for such violation is provided as follows:\nAny person injured by a violation of this subchapter shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorney fee, provided that the Court in its discretion may increase the award of damages to an amount not to exceed three (3) times the actual damages sustained or One Thousand Five Hundred Dollars ($1,500), whichever is greater.\nArk. Code Ann. \u00a7 4-90-203 (Repl. 1991) (emphasis added).\nA third cause of action was based on common law fraud for alleged false representations made with intent to induce the appellees to buy the vehicle involved in this case, and the amended complaint asked for punitive damages on this cause of action.\nThis suit was brought against two defendants, but judgment was obtained against the appellant only. The other defendant filed a notice stating he had filed for bankruptcy, and the appellees subsequently dismissed against him. Although the appellant testified that he bought the vehicle from the other defendant and did not know the odometer had been rolled back, the jury found against appellant. The case was submitted on instructions that allowed a verdict for appellees for the violation of Ark. Code Ann. \u00a7\u00a7 4-90-201 to 206 or on the common law action for deceit. The jury returned two verdict forms. One found for appellees and awarded them \u201ccompensatory damages in the sum of $4,635.\u201d The other verdict found for appellees and awarded them \u201cpunitive damages in the sum of $0.00.\u201d The court entered judgment for the $4,635.00 compensatory damages allowed by the jury, plus another $4,635.00 allowed by the judge, for attorney fees in the amount of $4,904.50, and for court costs of $533.04. The total judgment was for $14,707.54.\nI will discuss only the damage award. It is, of course, clear that the jury did not award punitive damages to the appellees, or perhaps more correctly \u2014 the jury awarded the appellees \u201cthe sum of $0.00\u201d for punitive damages. In either event, the appel-lees\u2019 abstract shows that after the jury had returned its verdict, appellees\u2019 counsel was given permission by the judge to submit a motion for treble damages, and the appellant\u2019s abstract shows that in a letter filed with the clerk, the judge stated that \u201cthe damages of $4,635.00 awarded by the jury should be increased to $9,270.00.\u201d This is double the $4,635.00 awarded by the jury as compensatory damages. The letter states no reason for the increase, and appellees\u2019 brief simply states that the judge was \u201cexercising his discretion\u201d and acting \u201cwithin his power to make such a ruling.\u201d Ark. Code Ann. \u00a7 4-90-203 and the case of Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989), are cited as support for the judge\u2019s action.\nIn Currier v. Spencer the appellee obtained a judgment on his counterclaim. He recovered $1,500.00 for \u201cthe difference between the purchase price of the automobile. . . and the actual value of the automobile,\u201d as damages for breach of warranty and misrepresentation. See 299 Ark. at 185-86, 772 S.W.2d at 311. This amount was doubled under Ark. Code Ann. \u00a7\u00a7 4-90-203 and 206. See 299 Ark. at 185, 772 S.W.2d at 311. He was also granted an attorney\u2019s fee under the Magnuson-Moss Act (not the federal act referred to in this case). See 299 Ark. at 184, 772 S.W.2d at 311. However, the opinion makes no mention of punitive damages and, apparently, such damages were not sought. With respect to the doubling of the damage award, the opinion in Currier V. Spencer simply cites Ark. Code Ann. \u00a7\u00a7 4-90-203 and 206 and states that doubling the award was \u201cproper.\u201d\nThe appellant in the instant case also cites Currier v. Spencer and says it \u201cstands for the proposition that the Arkansas Supreme Court will review the actions of the trial court to determine if there has been an abuse of discretion in imposing additional damages\u201d and argues that in the instant case \u201cthe court\u2019s discretion granted by statute was abused.\u201d Thus, the appellant\u2019s argument on appeal is not really \u2014 certainly not only \u2014 confined to the argument stated in the majority opinion \u201cthat, by requesting punitive damages, the appellees waived any rights they might have ... to treble [or double] damages.\u201d What the appellant is actually arguing is that the trial court abused its discretion when, under the circumstances of this case, the court doubled the compensatory damage award made by the jury.\nWhether a judge has properly exercised his or her discretion has not been the subject of much in-depth discussion. The Supreme Court of Arkansas usually simply states that there was or was not \u201can abuse of discretion.\u201d See, e.g., Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). In Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983), the court concluded its opinion by stating that a ruling on a motion for continuance is within the sound discretion of the trial court and will not be disturbed unless the court \u201cabused that discretion by acting arbitrarily and capriciously.\u201d And in Looper v. Madison Guaranty Savings & Loan Association, 292 Ark. 225, 233-34, 729 S.W.2d 156, 160 (1987), the court quoted from an earlier case as follows:\n[I] n reviewing the exercise of discretion, the test is whether the ordinary, reasonable, prudent judge, under all the facts and circumstances before him, would have reached the conclusion that was reached.\nLooper was cited and followed by the Arkansas Court of Appeals in American Livestock Insurance Co. v. Garrison, 28 Ark. App. 330, 774 S.W.2d 431 (1989).\n\u201cAbuse of discretion\u201d is discussed in 1 Childress & Davis, Federal Standards of Review \u00a7 4.21 (2nd ed. 1992). The second citation in the discussion is to a case which states:\n\u201cAbuse of discretion\u201d is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.\nIn re Josephson, 218 F.2d 174, 182 (1st Cir. 1954). The discussion of abuse of discretion is summed up as follows:\nIt appears, therefore, that often an abuse of discretion standard in civil and criminal appeals should not be equated with a test for unreasonableness. The appellate court must defer to true exercises of discretion but should not wait, in many contexts, until the judge had been wholly unreasonable or whimsical before reversing. After all, even a deferential abuse yardstick does not insulate the judge from accountability. It still allows the appellate court to check for an injustice (much like the clearly erroneous rule), based in turn on the trial court\u2019s own duty to use \u201csound discretion, exercised with regard to what is right and in the interests of justice. And an appellate court is not bound to stay its hand and place its stamp of approval on a case when it feels that injustice may result.\u201d\nFederal Standards of Review at 4-160 (citations omitted).\nIn Boren v. State, 297 Ark. 220, 223, 761 S.W.2d 885, 887 (1988), the court said it had looked to 15 U.S.C. \u00a7 1981 (that act which was referred to at the beginning of this dissent), and cases under that act as authority in the application of our odometer act because the two acts were very similar. Therefore, it is appropriate to look at cases under the federal act in the consideration of whether the trial judge abused his discretion in doubling the damage award in the instant case. One case in which the federal act was involved is Rice v. Gustavel, 891 F.2d 594 (6th Cir. 1989). There, the appellants recovered treble damages under the federal act but contended they were also entitled to compensatory and punitive damages for common law fraud \u2014 in addition to the treble damages. The trial court denied the appellants\u2019 contention. The appellate court affirmed and said, \u201cWe find no merit to the Rices\u2019 contention that they are entitled to additional compensatory and punitive damages under their common law fraud claim.\u201d Id., at 597. Another case on that point is Bill Terry\u2019s Inc. v. Atlantic Motor Sales, 409 So.2d 507 (Fla. App. 1982), where the appellee brought suit on counts of breach of warranty, fraud, and violation of the federal act. The jury assessed both actual and punitive damages under the fraud count, and the judge tripled the actual damage award under the authority of the federal act. On appeal the court said:\nWe agree with appellant that an award of both treble damages and punitive damages for the same act amounts to a double recovery or an excessive penalty.\nId., at 509. This case was cited, among others, as support for a portion of the opinion in Verdonck v. Scopes, 590 N.E.2d 545 (Ill. App. 1992). There, the plaintiff brought suit alleging causes of action under the federal act, two acts of the State of Illinois, and common law fraud. He was awarded both compensatory damages, which were trebled, and punitive damages. On appeal the court said the plaintiff \u201cmay not recover both punitive damages and statutory treble damages, as such a dual award amounts to double recovery, or double punishment, for the same wrongful behavior.\u201d Id., at 550. It should be noted, however, that in both Bill Terry\u2019s Inc. and Verdonck, the plaintiff was allowed to keep either the increased compensatory damage award or the punitive damage award, whichever was greater. Our cases in Arkansas have applied the principle just discussed. In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), the point is summed up as follows:\nThe Houstons\u2019 lawsuit was for damages to timber under Ark. Stat. Ann. \u00a7 50-105 (Repl. 1975), and common law trespass. The statute allows triple damages, which are punitive in nature, and the Houstons sought punitive damages in connection with the trespass. They were awarded both. In this case, under the facts recited, it amounted to a double punitive recovery for the illegal act. The elements of damages were the same, and such a recovery is prohibited.\n265 Ark. at 933, 582 S.W.2d at 30-31. Another case on the same point is Tricou v. ACI Management, Inc., 37 Ark. App. 51, 823 S.W.2d 924 (1992). In that case the Arkansas Court of Appeals held that the trial court had abused its discretion in awarding a default judgment, as a sanction for failing to comply with an order to furnish discovery information, and also punitive damages without any additional evidence of conduct to support the punitive damage award. We said:\nSo, while we do not find the court erred in the imposition of the sanction of liability for compensatory damages, we hold that it would be an abuse of the trial court\u2019s discretion to extend its sanction to liability for punitive damages. . . . It is clear that the sanction imposed in this case for failing to comply with the order to furnish information was for punishment. Awarding liability for compensatory damages seems punishment enough for failing to furnish the information. To also award liability for punitive damages would smack of double punishment.\n37 Ark. App. at 59, 823 S.W.2d at 929 (citation omitted).\nConsidering the decisions from other jurisdictions which have dealt with the allowance of both compensatory and punitive damages under 15 U.S.C. \u00a7 1989 (1982) and the Arkansas decisions dealing with the same principal of law in other situations, I believe it was an abuse of discretion, under the meaning of . that term as discussed above, for the trial judge in this case to double the jury\u2019s award of compensatory damage. I am even more convinced when I consider that 15 U.S.C. \u00a7 1989 provides that any person violating that act shall be liable in an amount equal to three times the actual damages sustained or $1,500, whichever is greater, and our act in Arkansas only gives the judge the discretion to increase the actual damages sustained.\nOf course, I recognize that the judgment in the instant case did not award both punitive damages and an increase in compensatory damages, but after a jury finds that a defendant\u2019s conduct does not justify the assessment of the penalty of punitive damages, I do not think the judge, in the proper exercise of his discretion, should assess a penalty by increasing the compensatory damages. Such action tends to undercut the force of the jury\u2019s verdict and denigrate its status as an expression of democracy in our system of justice. After all, \u201cone of the major functions of any system of law is to assure its own acceptance in the society it governs.\u201d Robert Leflar, One Life in the Law, 129 (1985). The trial judge did not give any indication of his reason for doubling the jury\u2019s award. The judge allowed an attorney\u2019s fee that is clearly adequate, plus trial court costs of $533.04. To affirm the increase in the compensatory damage under the circumstances of this case simply allows discretion to \u201crun free.\u201d Llewellyn says \u201cno discretion has any business to be wholly free.\u201d (Emphasis in the original.) See Karl Llewellyn, The Common Law Tradition, Deciding Appeals, (1960) at 217.\nI respectfully dissent from the affirmance of the trial judge\u2019s increase of the jury\u2019s award of compensatory damages.\nCooper, J., joins in this dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "R. Theodor Strieker, for appellant.", "Etoch Law Firm, by: Louis A. Etoch, for appellee." ], "corrections": "", "head_matter": "Jim CALDWELL d/b/a Caldwell Enterprises v. Roger JENKINS and Patricia Jenkins\nCA 92-1304\n856 S.W.2d 37\nCourt of Appeals of Arkansas En Banc\nOpinion delivered June 23, 1993\nR. Theodor Strieker, for appellant.\nEtoch Law Firm, by: Louis A. Etoch, for appellee." }, "file_name": "0157-01", "first_page_order": 181, "last_page_order": 192 }