{ "id": 1910522, "name": "Michael GRANDJEAN v. Patrick GRANDJEAN", "name_abbreviation": "Grandjean v. Grandjean", "decision_date": "1994-01-31", "docket_number": "93-172", "first_page": "620", "last_page": "627", "citations": [ { "type": "official", "cite": "315 Ark. 620" }, { "type": "parallel", "cite": "869 S.W.2d 709" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "311 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896957 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0637-01" ] }, { "cite": "250 Ark. 453", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636922 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0453-01" ] }, { "cite": "293 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869657 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0433-01" ] }, { "cite": "23 Minn. 347", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 549715 ], "year": 1877, "opinion_index": 0, "case_paths": [ "/minn/23/0347-01" ] }, { "cite": "8 A. 628", "category": "reporters:state_regional", "reporter": "A.", "year": 1886, "opinion_index": 0 }, { "cite": "115 Pa. 347", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 551818 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/pa/115/0347-01" ] }, { "cite": "15 So. 663", "category": "reporters:state_regional", "reporter": "So.", "year": 1894, "opinion_index": 0 }, { "cite": "103 Ala. 345", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3398632 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ala/103/0345-01" ] }, { "cite": "141 S.W. 194", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1911, "opinion_index": 0 }, { "cite": "100 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312209 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/ark/100/0316-01" ] }, { "cite": "153 S.W. 1116", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1913, "opinion_index": 0 }, { "cite": "107 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344030 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/ark/107/0074-01" ] }, { "cite": "183 S.W. 180", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "122 Ark. 382", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558176 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/122/0382-01" ] }, { "cite": "302 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884223 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0558-01" ] }, { "cite": "310 Ark. 546", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898820 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0546-01" ] }, { "cite": "312 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935149 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0466-01" ] }, { "cite": "64 Ark. 453", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907375 ], "year": 1897, "opinion_index": 2, "case_paths": [ "/ark/64/0453-01" ] }, { "cite": "8 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727753 ], "year": 1848, "opinion_index": 2, "case_paths": [ "/ark/8/0510-01" ] }, { "cite": "129 S.W. 85", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1910, "opinion_index": 2 }, { "cite": "95 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543584 ], "year": 1910, "opinion_index": 2, "case_paths": [ "/ark/95/0227-01" ] }, { "cite": "250 Ark. 453", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636922 ], "weight": 2, "year": 1971, "opinion_index": 2, "case_paths": [ "/ark/250/0453-01" ] }, { "cite": "293 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869657 ], "weight": 2, "year": 1987, "opinion_index": 2, "case_paths": [ "/ark/293/0433-01" ] }, { "cite": "141 S.W. 194", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1911, "opinion_index": 2 }, { "cite": "100 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312209 ], "year": 1911, "opinion_index": 2, "case_paths": [ "/ark/100/0316-01" ] }, { "cite": "153 S.W. 1116", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1913, "opinion_index": 2 }, { "cite": "107 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344030 ], "year": 1913, "opinion_index": 2, "case_paths": [ "/ark/107/0074-01" ] } ], "analysis": { "cardinality": 807, "char_count": 14814, "ocr_confidence": 0.883, "pagerank": { "raw": 1.5651546542205925e-07, "percentile": 0.677592400174682 }, "sha256": "f40490cd2aa7cbcc8814504c3813dc6a6ad9e3b1312d06fa8d2e1d130e98b9b4", "simhash": "1:d5bee74e7f0ac7f2", "word_count": 2488 }, "last_updated": "2023-07-14T19:39:34.144281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., dissents." ], "parties": [ "Michael GRANDJEAN v. Patrick GRANDJEAN" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellant, Michael Grand-jean, raises a single point for reversal in this appeal from a decision of the Pulaski County Circuit Court. He argues that, as a matter of law, the trial court erred in awarding $1,000 in damages to his brother, appellee Patrick Grandjean, for false arrest.\nOn appeal, Michael Grandjean presents an argument that, in form, addresses the trial court\u2019s false-arrest finding but that, substantively, constitutes a defense based on the elements required for the tort of malicious prosecution. We hold that Michael Grandjean has effectively changed his grounds for appeal, having asserted a point for reversal under the rubric of malicious prosecution that was not, as such, considered by the trial court. We therefore are unable to consider his argument.\nAn appellant may not change the basis for his argument or raise a new argument on appeal; he is limited to what was requested in the trial court. See Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).\nMichael and Patrick Grandjean, together with two other brothers, James and Daniel Grandjean, shared equally in their father\u2019s estate upon his death in April 1991. By common agreement, Michael was named executor of the estate. Patrick was living at his father\u2019s house in Jacksonville at the time of his death. James moved in shortly thereafter.\nThe house was the major asset of the estate. By tacit understanding of the four brothers, Patrick and James, were allowed to continue residing in the house until the property could be sold. Several months later, a verbal agreement was struck under which Patrick and James would be allowed to purchase the interests of Michael and Daniel for $10,000 per share. Patrick and James then attempted to secure a loan from a bank but were unsuccessful.\nIn the meantime, Michael and his wife, Cathy, painted, cleaned, and repaired the interior and exterior of the house, for which Michael was subsequently compensated from proceeds of the sale of the house. (Michael also received remuneration in his capacity as administrator of the estate.) According to Michael, neither Patrick nor James made any effort to maintain the property or to assist in its restoration.\nMichael had grown impatient with Patrick and James because of their inability or unwillingness to proceed with the purchase of the house. As administrator of the estate, he listed the house with a realtor in early September 1991. Upon consultation with the attorney for the estate, who represented all four brothers, Michael was advised that he could evict Patrick and James. Subsequently, he gave individual notices to the two brothers to vacate the premises by October 10, 1991, despite objections from his brother Daniel, who resided out of state.\nWhen Patrick and James failed to move by the specified date, Michael went to the prosecuting attorney on October 24, 1991, and signed affidavits for arrest warrants for failure to vacate. The affidavits contained the following identical boilerplate language under the heading, \u201cFacts Constituting Probable Cause\u201d:\nI Michael John Grandjean. state that I \u00a9wn/manage the property at 408 Braden Street. Jacksonville. Ar. The residence at that address is leased or rented to James Grandiean and Patrick Grandjean. They are behind on there (sic) rent, and were served with a (10) ten day notice to vacate on Oct 11. 1991. The residence has not been vacated and the rent has not been paid.\nI swear that the allegations contained herein are the truth, the whole truth and nothing but the truth.\nMichael crossed out the word \u201cown\u201d in the first sentence, leaving the word \u201cmanage.\u201d\nThe following day, arrest warrants were issued. Patrick was arrested and remained in jail from 12:30 p.m. until 5:00 p.m., when a friend posted bond. James turned himself in prior to an arrest. Following these events, Patrick and James began moving articles out of the house, and Michael requested on three occasions that the prosecuting attorney drop the charges. On December 18, 1991, Patrick and James appeared in municipal court and were informed that the case had been dropped from the docket.\nIn March 1992, Patrick and James filed suit against Michael, alleging false arrest and breach of contract and asserting the right to punitive damages. A bench trial was held in October 1992, and the court found for Michael on the breach of contract claim. However, the court ruled that there was no agreement regarding the amount of rent to be paid to the estate by Patrick and James and that the affidavit signed by Michael was false. Moreover, the court declared, \u201cDefendant was responsible for the false affidavit and Defendant knew that the judge would rely on the affidavit in determining whether probable cause existed for issuance of an arrest warrant.\u201d Finally, the court determined that the \u201cdefense of an affidavit is not available to Defendant on the claim of false arrest.\u201d Compensatory damages of $1,000 were awarded to Patrick Grandjean. (James received no award because, having turned himself in voluntarily, he was not subject to false arrest.)\nIn his sole point for reversal, appellant Michael Grandjean contends that, as a matter of law, the trial court erred in giving judgment against him on the false arrest claim. His argument, however, as indicated earlier, is based on the probable-cause defense to an action for malicious prosecution, and all of his authorities \u2014 Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990); Price v. Morris, 122 Ark. 382, 183 S.W. 180 (1916); Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913); L.B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911); Rogers v. General Electric Co., 341 F.Supp. (W.D. Ark. 1972) \u2014 are cases involving malicious prosecution rather than the issue at hand \u2014 false arrest.\nIt is, in fact, easy to understand the confusion regarding these two concepts. Courts in this country have confounded them for more than a century. See Prosser and Keeton on the Law of Torts, \u00a7 11, p. 54 (5th ed. 1984), citing Rich v. McInerny, 103 Ala. 345, 15 So. 663 (1894); Neall v. Hart, 115 Pa. 347, 8 A. 628 (1886); Stewart v. Cooley, 23 Minn. 347 (1877). As others have before, the trial court acknowledged the conceptual confusion in its findings from the bench:\nThe [fact] of the matter is that whatever it is he signs, he, Mr. Grandjean, Mr. Michael Grandjean, signs an affidavit that is fundamentally false. It doesn\u2019t make me a lot of difference that someone prepared it for him. He had an obligation, even having disclosed what the circumstances were, to say, [\u201c]No, Mr. Prosecutor, I manage the property in that I am the executor. But they\u2019re not behind in their rent. We never had an agreement as to what the rent ought to be. Maybe they should be charged rent, and perhaps I have an obligation as the personal representative of the estate to marshall together the assets of the estate to make the estate assets profitable, but I\u2019ve not told them whether it\u2019s a dollar a year or anything else.[\u201d] That is a misstatement. And I believe under our law that he\u2019s responsible for that. I don\u2019t agree with you, Mr. Wilson, I will not disagree with you that maybe they\u2019re different concepts of the law that we say are false arrest and malicious prosecution or something of that nature. But I say that in this context of these lawyers and this lawsuit that\u2019s just a label. It\u2019s a generic term. And the evidence presented here shows that Mr. Grandjean signed an affidavit; if he didn\u2019t know he had good reason to believe or he\u2019s chargefd] with knowing that a Magistrate is going to look at that and determine whether or not probable cause is shown. The Judge doesn\u2019t hear this evidence. He determines from this writing whether or not. So I find that... the Plaintiffs have prevailed'on the issue of the illegal detention or unlawful arrest or whatever.\n(Emphasis added.)\nIn whatever light the trial court may have regarded them, false arrest and malicious prosecution are separate torts, and the fact remains that the trial court was dealing with a suit for false arrest. False arrest, or false imprisonment, has been defined by this court (and was formerly defined by a criminal statute, long since repealed) as the unlawful violation of the personal liberty of another, consisting of detention without sufficient legal authority. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 738 S.W.2d 418 (1987); Moon v. Sperry & Hutchison Co., 250 Ark. 453, 465 S.W.2d 330(1971).\nMalicious prosecution, on the other hand, consists of the following elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the proceedings; (4) malice on the part of the defendant; and (5) damages. Hollingsworth v. First National Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).\nMichael Grandjean now advances a new argument on appeal that is appropriate to a claim for malicious prosecution rather than one for false arrest. In doing so, he asserts a point for reversal based on a tort not considered by the trial court and a defense not, strictly speaking, germane to the trial court\u2019s finding of false arrest. For this reason, we do not consider his argument on appeal. Warhurst v. White, supra.\nOn appeal, Michael Grandjean insists, as he did at trial, that he went to the prosecutor only after having been advised by the estate\u2019s attorney that, as administrator, he could seek his brothers\u2019 eviction from the house. He avers that he presented all the facts concerning co-ownership of the property to the prosecutor. This is a malicious-prosecution defense and is of no moment in a suit for false arrest. Had the case below been litigated as a suit for malicious prosecution, or had Michael Grandjean objected to the nature of the proceedings, a different result might have obtained. As matters stand, though, we can neither consider an argument that has been raised for the first time on appeal nor fashion a holding on the basis of a form of action that was not pursued at the trial level.\nWe hold that the finding of the trial court is affirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Glaze, J.,\nconcurs on the merits on the grounds that the appellant failed to prove malicious prosecution.\nHays, J., dissents.", "type": "concurrence", "author": "Glaze, J.," }, { "text": "Steele Hays, Justice,\ndissenting. It is clear this case was pled, tried and decided on the theory of \u201cfalse arrest.\u201d The complaint specifically alleges false arrest and the trial court awarded judgment to appellee Patrick Grandjean on that basis alone. The appellant\u2019s single point of error on appeal is that \u201cthe trial court erred as a matter of law in giving judgment against the appellant.\u201d\nBefore the trial court counsel for appellant carefully noted the distinction between false arrest/imprisonment and malicious prosecution, the latter cause requiring actual prosecution, an element lacking here. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 738 S.W.2d 418 (1987). In fact, counsel cited the Headrick case to the trial court as distinguishing the two causes of action. Nor can I agree that appellant has altered his theory on appeal. It is now argued, as it was before the trial court, that he acted pursuant to his responsibility as executor, that Patrick and James Grandjean were occupying the only asset of the estate, rent-free, committing or permitting waste, and that appellant\u2019s duty was to sell the property. In October 1992, some seven months after their father\u2019s death, appellant consulted the attorney for the estate and was advised to evict the two brothers, which he proceeded to do.\nThere is no evidence appellant did not give a full disclosure to the deputy prosecuting attorney, in fact he showed him his Letters Testamentary. At no time did appellant claim that rent was owed by the brothers- the words \u201cbehind in there (sic) rent\u201d were preexisting in a printed form used by the prosecutor and completed in the handwriting of the prosecutor. In short, all the appellant wanted was for the two brothers to vacate and when they did so he notified the prosecutor to dismiss the case.\nAppellant\u2019s brief asserts that appellant acted on advice of counsel, a defense \u201csupported by a long line of decisions of this court.\u201d It is true, as the majority observes, that those cases refer to malicious prosecution, but there is much overlapping of the substantive elements of the two torts and the cases cited are pertinent to appellant\u2019s theory of error, the identical theory he presented to the trial court. Indeed, much of our discussion of these two torts is interchangeable: For example, in discussing false imprisonment, this court has stated that, as a general rule, where a person does no more than give information by affidavit to an officer relative to \u00e1 matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for acts done under a warrant which the officer issues on said charge. Moon v. The Sperry and Hutchinson Co., 250 Ark. 453, 465 S.W.2d 330 (1971). Yet in L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911), one of the cases cited by appellant, we said (discussing malicious prosecution) \u201cwhere one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of counsel in instituting a prosecution, this is conclusive evidence of probable cause, and is a complete defense in an action for malicious prosecution.\u201d In Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913) cited by the appellant, we said that where a party \u201clays all the facts before counsel and acts bona fide upon the opinion of counsel he is not liable for malicious prosecution.\u201d Yet, in McIntosh v. Bullard, 95 Ark. 227, 129 S.W. 85 (1910), in discussing false imprisonment, we wrote: \u201cWhere a person does no more than give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for false imprisonment which the officer issues on said charge.\u201d In Beebe v. DeBaun, 8 Ark. 510 (1848), we said that malice and want of probable cause are both essential requisites to the maintenance of an action for false imprisonment. In Vinson v. Flynn, 64 Ark. 453 (1897), we said these were the essential elements of malicious prosecution.\nI believe the appellant has not changed arguments on appeal and is entitled to a ruling on the merits. I would reverse and dismiss.\nMore generally \u201cfalse imprisonment.\u201d See Prosser and Keeton, The Law of Torts, \u00a7 11,47 (5th Ed. 1984).", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "Mike Wilson, for appellant.", "Diana M. Moulding, for appellee." ], "corrections": "", "head_matter": "Michael GRANDJEAN v. Patrick GRANDJEAN\n93-172\n869 S.W.2d 709\nSupreme Court of Arkansas\nOpinion delivered January 31, 1994\nMike Wilson, for appellant.\nDiana M. Moulding, for appellee." }, "file_name": "0620-01", "first_page_order": 652, "last_page_order": 659 }