{ "id": 1445675, "name": "Kittye MASON v. Jody JACKSON", "name_abbreviation": "Mason v. Jackson", "decision_date": "1996-02-05", "docket_number": "94-1352", "first_page": "252", "last_page": "258", "citations": [ { "type": "official", "cite": "323 Ark. 252" }, { "type": "parallel", "cite": "914 S.W.2d 728" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "321 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449543 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0180-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "312 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935125 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0524-01" ] }, { "cite": "310 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898858 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0624-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-116-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 4-2-314", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 } ], "analysis": { "cardinality": 547, "char_count": 9985, "ocr_confidence": 0.898, "pagerank": { "raw": 1.3598218279885454e-07, "percentile": 0.6352629052890728 }, "sha256": "7637ce29a6086e345245cf7ecc54d4c876e84c114fd7b599c088ea74a3a1ae7d", "simhash": "1:03cb9bb2095ff8de", "word_count": 1681 }, "last_updated": "2023-07-14T22:17:29.924838+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., not participating." ], "parties": [ "Kittye MASON v. Jody JACKSON" ], "opinions": [ { "text": "David Newbern, Justice.\nJody Jackson, the appellee, teaches horseback riding. Kittye Mason, the appellant, is the mother of Lydia Mason who, as a teenager, was a student of Ms. Jackson. Kittye Mason agreed to pay Ms. Jackson $500 to find a 10-year-old gelding, trained as a hunter-jumper, to be purchased for some $10,000 for Lydia Mason. Kittye Mason brought tort and contract claims against Ms. Jackson resulting from dissatisfaction with the horse Ms. Jackson helped her purchase. The Trial Court held in favor of Ms. Jackson and awarded attorney\u2019s fees to her. We affirm the judgment and the fee award.\nAfter entering the agreement, Ms. Jackson heard of an 11-year-old horse named \u201cNorway\u201d she thought might be suitable. Norway was owned by Phil Devita, owner of Coral Hill Farm in Florida. Norway was for sale for $11,500. Ms. Jackson spoke to Carolyn Tanner, who was apparently an employee of Mr. Devita with whom Ms. Jackson was acquainted, who told her Norway was 11 years old. She then spoke of Norway to Kittye Mason who expressed interest. The two of them flew to Florida, along with Lydia Mason, to have a look at Norway and other horses in March 1990.\nWhile in Florida, the threesome observed Norway\u2019s abilities and temperament at a horse show, and Lydia Mason rode him. They discussed Norway with the Savills, who were his former owners. Ms. Savill testified that, when she purchased Norway in December 1988, he was eight or nine years old and she had him examined by a veterinarian in connection with her purchase of him. Although they looked at other horses while in Florida, Mrs. Mason and Lydia decided to purchase Norway.\nKittye Mason testified it was Ms. Jackson\u2019s responsibility to have Norway examined by an independent veterinarian before the purchase was to be completed. Ms. Jackson testified that Kittye Mason asked Ms. Tanner to arrange for the veterinary examination to expedite the matter, as she did not want to spend more than four days on the trip. The veterinarian who examined Norway was Dr. Delius, the \u201cbarn vet\u201d at Coral Hill Farm. He certified the horse to be 11 years old. Ms. Jackson testified she told Kittye Mason that it was Dr. Delius who performed the examination.\nNorway was ill when he arrived by van at Ms. Jackson\u2019s farm where he was to be stabled. He suffered from colic from time to time over the following year. Several witnesses testified that Lydia Mason treated Norway badly, and his condition could have been the result of stress from mistreatment. Despite that, he won a number of contests for Lydia Mason.\nIn October 1991, Dr. Joseph Hanley examined Norway at Ms. Mason\u2019s request and determined Norway\u2019s age to be over twenty. Kittye Mason sued Dr. Delius, Mr. Devita, and Ms. Jackson for breach of contract, fraud, negligence, and strict liability. The claims against Dr. Delius and Mr. Devita were dismissed for lack of personal jurisdiction. The claims against Ms. Jackson were tried without a jury. In his letter opinion, Judge Bogard wrote:\nThe court finds that the Plaintiff did not prove by a preponderance of the evidence any negligence on the part of the Defendant as to the selection of the horse or the veterinarian. The Defendant did all a reasonable person would do in procuring a suitable horse for the Plaintiff\u2019s daughter. Even assuming that the Plaintiff was responsible for arranging for the veterinarian examination, no one testified that only an independent veterinarian should perform this type of examination. In fact, one horse trainer testified that she would rather have the horse\u2019s regular veterinarian perform the examination. Several trainers that testified stated that they rely on the out of state trainer/seller to secure a veterinarian, whether independent or the usual veterinarian, for a sale examination. All witnesses testified that only a veterinarian could properly and safely age a horse.\nIn addition, there is absolutely no evidence before this Court that Defendant was a party to any misrepresentation, fraud, or deceit. The only issue for consideration is whether the Defendant breached an oral agreement with the Plaintiff when it was discovered that although Norway horse met all of the other requirements, he was not 11 years old. The Court notes that the Defendant admits that for a fee of $500, she did agree to find a horse meeting the above mentioned criteria. To put it simply, the Defendant was to put the Plaintiff in touch with such a horse, which she did. The agreement did not include a guarantee of the horse\u2019s age by the Defendant. Both parties knew that they would have to secure a veterinarian to certify the horse\u2019s age; both parties knew that ageing a horse was out of their realm of abilities. When the Plaintiff agreed to take the veterinarian\u2019s word, the Defendant ceased to be part of the contract, or in other words, Defendant\u2019s contract with the Plaintiff was completed. The court finds the Defendant did not breach her contract with the Plaintiff. It is not reasonable to construe that the intent of the parties\u2019 agreement was that the Defendant would guarantee that Norway was 11 years old.\n2. Code remedies\nSeveral of Kittye Mason\u2019s points of appeal have to do with the Trial Court\u2019s failure to rule in her favor with respect to remedies prescribed in Article 2 of the Uniform Commercial Code for a buyer against a seller of goods. Ark. Code Ann. \u00a7\u00a7 4-2-314 through 4-2-316 (Repl. 1991). We need not deal with those points in detail because the positions of Kittye Mason and Ms. Jackson were not those of buyer and seller. The agreement was for personal services and not for a sale.\nThe product liability remedies found in Ark. Code Ann. \u00a7\u00a7 16-116-101 through 16-116-107 (1987) are for buyers against manufacturers and suppliers and for suppliers against manufacturers of defective products. Again, these parties do not fit those categories.\n2. Negligence\nKittye Mason contended Ms. Jackson was negligent when she failed to find a horse that met her criteria. She appears to argue the Trial Court erred in failing to hold that Ms. Jackson breached her duty of care by failing to arrange for an independent veterinarian to certify Norway\u2019s age and health prior to their trip to Florida and subsequently in connection with the purchase. In response, Ms. Jackson cites the testimony of several other horse trainers who stated that an examination by an independent veterinarian was not required, and that it was often desirable to use a veterinarian familiar with the horse. In addition, we note the Trial Court could have based his decision in substantial measure upon Ms. Jackson\u2019s testimony that it was Kittye Mason who arranged the sale examination by Dr. Delius through Ms. Tanner.\nTo establish a prima facie case of negligence, the plaintiff must show that she sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages.\nNegligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).\nSanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993).\nNone of the other horse trainers who testified stated that it was customary to verify a horse\u2019s age prior to showing him to a potential buyer. Rather, it appears that this determination can be made any time prior to purchase. None of those witnesses said an independent veterinarian must examine the horse. Nancy Sobba, a horse trainer from Jacksonville, testified that on out-of-state purchases, she has relied on an examination by a \u201cbarn vet,\u201d or a doctor familiar with the horse.\nWe cannot say that any of the Trial Court\u2019s factual conclusions were clearly erroneous, Ark. R. Civ. P. 52(a), or that his overall conclusion that Kittye Mason failed to present a preponderance of the evidence on the issue of negligence was wrong.\n3. Attorney\u2019s fee\nKittye Mason presents no argument with respect to breach of contract other than points which fall within Article 2 of the Uniform Commercial Code discussed above. Breach of contract was, however, a substantial issue before the Trial Court upon which Ms. Jackson prevailed.\nKittye Mason contends Ms. Jackson\u2019s attorney had said to her attorney that he did not intend to charge his client a fee because she was a relative. Her contention now is that the fee arrangement must have been based on the contingency of Ms. Jackson prevailing in the lawsuit and that the fee arrangement thus was required to be in writing according to Model Rules of Professional Conduct 1.5.\nIn his order, the Trial Court stated: \u201cIt is within the Court\u2019s discretion to award attorney\u2019s fees to the prevailing party in a contract case. . . . [Ark. Code Ann. \u00a7 16-22-308 (1987).] As noted in the judgment . . . the Court focused on the breach of contract issue. . . . Defendant has incurred and should be awarded attorney\u2019s fees in the amount of $6,000.\u201d\nKittye Mason seems to be suggesting that Ms. Jackson did not incur an attorney\u2019s fee and thus none should be awarded. The Trial Court held specifically that Ms. Jackson did incur an attorney\u2019s fee. In these circumstances, the order of an attorney\u2019s fee after entry of the judgment is a collateral matter. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). We cannot properly review this point because, as Ms. Jackson points out, Kittye Mason has not filed a notice of appeal from the fee order and has not provided us with a record of a hearing held on the attorney\u2019s fee issue.\nAffirmed.\nGlaze and Brown, JJ., not participating.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Edward O. Moody, for appellant.", "Gill Law Firm, P.L.C., by: John P. Gill, for appellee." ], "corrections": "", "head_matter": "Kittye MASON v. Jody JACKSON\n94-1352\n914 S.W.2d 728\nSupreme Court of Arkansas\nOpinion delivered February 5, 1996\nEdward O. Moody, for appellant.\nGill Law Firm, P.L.C., by: John P. Gill, for appellee." }, "file_name": "0252-01", "first_page_order": 282, "last_page_order": 288 }