{ "id": 12023979, "name": "Ronnie HACKLETON v. Johnny LARKAN", "name_abbreviation": "Hackleton v. Larkan", "decision_date": "1996-11-18", "docket_number": "96-638", "first_page": "649", "last_page": "655", "citations": [ { "type": "official", "cite": "326 Ark. 649" }, { "type": "parallel", "cite": "933 S.W.2d 380" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "275 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753663 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0466-01" ] }, { "cite": "233 Ark. 836", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691713 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0836-01" ] }, { "cite": "238 Ark. 985", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734289 ], "weight": 2, "year": 1965, "pin_cites": [ { "parenthetical": "negligence alone suffices for an award of double damages" }, { "parenthetical": "negligence alone suffices for an award of double damages" } ], "opinion_index": 0, "case_paths": [ "/ark/238/0985-01" ] }, { "cite": "325 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369145 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0180-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "1937 Ark. Acts 29", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 0 }, { "cite": "305 Ark. 109", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916801 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0109-01" ] }, { "cite": "616 S.W.2d 755", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6137556, 6136868 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/2/0079-01", "/ark-app/2/0059-01" ] }, { "cite": "2 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136868 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/2/0059-01" ] }, { "cite": "228 Ark. 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719304 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/228/0270-01" ] }, { "cite": "219 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609197 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/219/0413-01" ] }, { "cite": "24 S.W.2d 328", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "180 Ark. 1018", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393496 ], "opinion_index": 0, "case_paths": [ "/ark/180/1018-01" ] }, { "cite": "237 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737940 ], "weight": 5, "year": 1963, "pin_cites": [ { "page": "141", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/237/0400-01" ] }, { "cite": "Ark. Code Ann. \u00a7 20-22-304", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 18-60-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 18-60-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 621, "char_count": 11177, "ocr_confidence": 0.821, "pagerank": { "raw": 1.0640922888854451e-07, "percentile": 0.5578730651864259 }, "sha256": "bc7285ddeabea8f7c4afe83415682472e5bf012f6e086adb4e4489d677937603", "simhash": "1:5b2e2f273d6f50b4", "word_count": 1853 }, "last_updated": "2023-07-14T22:12:03.555215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., not participating." ], "parties": [ "Ronnie HACKLETON v. Johnny LARKAN" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Ronnie Hackleton appeals and asserts trial court error in its assessment of double damages against him for fire damage to appellee Johnny Larkan\u2019s trees. We agree that error was committed, and we modify the judgment amount to correspond with the jury verdict of single damages.\nOn April 13, 1994, Johnny Larkan filed a complaint seeking damages for his trees that were destroyed as a result of the alleged negligence of Ronnie Hackleton in starting, supervising, controlling, and extinguishing a fire on Hackleton\u2019s property that spread to Larkan\u2019s land. Larkan, asserting that Hackleton was stricdy liable for trespassing on his land, sought treble damages under Ark. Code Ann. \u00a7 18-60-102(a) (1987), for the destruction of 36 acres of saw timber. Hackleton admitted that he started the fire on his own land in his responses to requests for admission, and the action proceeded to trial by jury solely on the issue of damages.\nBoth parties prepared for trial with the belief that either Ark. Code Ann. \u00a7 18-60-102 (1987) or Ark. Code Ann. \u00a7 18-60-103 (1987) would govern the issue of damages. Treble damages for trespass on land and the destruction of timber was sought by Larkan under \u00a7 18-60-102(a). Hackleton proposed that only single damages were available under \u00a7 18-60-103 for fire set on a person\u2019s property which spreads to and damages the property of a second person. As the parties were arguing over these two damage theories immediately prior to trial, the trial court raised on its own the issue of whether double damages should apply under a third statute \u2014 Ark. Code Ann. \u00a7 20-22-304 (Repl. 1991). The following colloquy occurred:\nTHE COURT: Now, neither one of you have talked about 20-22-304. Are you not interested in that, which calls for double damages?\nLARKAN\u2019S COUNSEL: I think if I\u2019m out on treble, then yes, I would be interested in that, but I\u2019m going stricdy on the theory that it is, but \u2014\nTHE COURT: Under 20-22-304?\nLARKAN\u2019S COUNSEL: Yes.\nTHE COURT: You talked about the 102 and 103. I\u2019m not sure how 20-22-304 relates to 103.\nHACKLETON\u2019S COUNSEL: If I remember that statute correcdy, that\u2019s one that you can recover double damages if someone harvests timber off your property.\nTHE COURT: No, sir, if you don\u2019t put out a fire. If you create a fire, it\u2019s a fire penalty.\nLARKAN\u2019S COUNSEL: Strict liability.\nHACKLETON\u2019S COUNSEL: This is not something the defendant has considered at length, Judge, but I think the statute you cited us to regarding double damages would probably be overridden by 103, because the facts of the situation were specifically contained within 103, and as the plaintiff has pointed out earlier, you must read 102 and 103 together, sure, obviously.\nTHE COURT: The way I see it is that for 20-22-304 to apply, that there would be double damages for letting a fire get loose, and according to the cases in the annotations it does not have to be pled.\nLARKAN\u2019S COUNSEL: That\u2019s correct. Again, I think that\u2019s a matter of law.\nTHE COURT: So you are going to get at least double damages.\nHACKLETON\u2019S COUNSEL: I think it\u2019s the defendant\u2019s position 103 is totally applicable in this case, and obviously as the plaintiff pointed out, you have to read them together, 102 and 103. 102 specifically addresses trespass, because the legislature wanted trespass in there. If they wanted you to interpret trespass to be included in 103, would they not have written that in there? I think 103, it\u2019s the defendant\u2019s contention is 103 is unambiguous, clear on its face, and specifically addresses this particular instance, and that is our position.\nLARKAN\u2019S COUNSEL: It\u2019s my understanding the double damages, again, that\u2019s not something we would submit to the jury.\nTHE COURT: That will be up to me afterwards, and I will submit to them interrogatories and then make a decision on what kind of damages. . . .\nAfter the jury heard evidence on the amount of damage suffered by Larkan, it returned from deliberations with a unanimous award of $3,000. The trial court then sent the jury back to decide whether Hackleton acted willfully or wantonly with respect to the fire\u2019s spreading. The jury answered an interrogatory unanimously that Hackleton had not acted willfully or wantonly. Immediately following the jury\u2019s second return, the following exchange occurred:\nLARKAN\u2019S COUNSEL: Under Arkansas law, we are automatically entitled to double damages based on the Statute, and we would ask the Court at this time to recognize that and include that.\nTHE COURT: Mr. McPherson (Hackleton\u2019s counsel), you have any response?\nHACKLETON\u2019S COUNSEL: Yes, I do, Your Honor. The Complaint filed by the plaintiff was, cites the Court to Section 102, which was discussed earlier, regarding their seeking triple damages.\nNo trespass was found, no willful and wanton conduct found, in which case the single damage award that\u2019s been submitted by the jury should be upheld.\nTHE COURT: My reading of the case law following annotations of the statutes, does not require, does not have to be pled, and the Court can grant it without pleadings, and therefore the Court does grant double damages.\nLARKAN\u2019S COUNSEL: And the judgment shall so reflect?\nTHE COURT: Yes, sir.\nHACKLETON\u2019S COUNSEL: Note my objection.\nDouble damages were included in the judgment against Hackleton in the amount of $6,000.\nIn contesting the trial court\u2019s double-damages award on appeal, Hackleton argues (1) the double-damages statute, \u00a7 20-22-304, was not pled; and (2) it is inapplicable to this set of facts. We decide the matter in Hackleton\u2019s favor on the first point. With respect to failure to plead, Larkan contends that argument was not preserved. As demonstrated above, however, Hackleton\u2019s counsel argued before trial that \u00a7 20-22-304 was inapposite and that \u00a7 I8-60 \u2014 103 was the remedy for damages caused by fire spreading to another\u2019s property. At the conclusion of the trial, Hackleton\u2019s counsel noted his objection to the judgment amount. We deem the actions of Hackleton\u2019s counsel to be sufficient to preserve the matter for our review.\nThe issue then is whether the double-damages statute had to be pled. The case of Cecil v. Headley, 237 Ark. 400, 373 S.W.2d 136 (1963), is directly on point. In that case, the appellees attempted to argue on appeal that the trial court erred in not applying the double-damages statute, as a matter of law, to the jury\u2019s award. This court refused to hear the argument:\nUpon a review of this record we do not find that the appel-lees specifically sought double damages in their pleadings. Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S.W.2d 328. This statute [the predecessor to \u00a7 20-22-304] providing for double damages, being penal in nature, must be strictly construed and no one can invoke its benefits who does not bring himself stricdy within its terms. Missouri Pacific R. Co. et al v. Lester, 219 Ark. 413, 242 S.W.2d 714; Lamb v. Hibbard, 228 Ark. 270, 306 S.W.2d 859.\nCecil, 234 Ark. at 406-07, 373 S.W.2d at 141 (emphasis added). See also Keathley v. Diversified Fastener & Tool, 2 Ark. App. 59, 616 S.W.2d 755 (1981).\nThis lapse in pleading is not a situation where Rule 15(b) of the Rules of Civil Procedure applies, as Larkan contends. The applicability of \u00a7 20-22-304 was not tried to the jury with the express or implied consent of the parties, and the trial court made it clear that the remedy would be applied as a matter of law. Moreover, this is not a case where evidence was objected to at trial, which might necessitate the objecting party\u2019s moving for a continuance under Rule 15(b). On the contrary, double damages was a new remedy foisted upon Hackleton on the day of the trial.\nThe Cecil v. Headley requirement that the double-damages remedy be pled makes perfectly good sense. Larkan specifically pled treble damages under \u00a7 18-60-102 in his complaint. Hackleton, understandably, prepared to defend against treble damages for destruction of Larkan\u2019s trees by trespass. He was not notified of the potential for double damages under \u00a7 20-22-304 until the trial court broached the matter immediately before trial. He, thus, had insufficient notice to allow him to mount a defense against an entirely different remedy under an entirely different statutory scheme. In short, Hackleton was blindsided by the new remedy.\nThe change in remedies is particularly noteworthy because \u00a7 20-22-304 is so totally different from the remedy pled by Larkan under \u00a7 18-60-102(a). The treble-damages remedy under \u00a7 18-60-102(a) requires a showing of intentional wrongdoing, even though this intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991). Its purpose, as the General Assembly noted in 1937, was to provide an adequate penalty against the intentional cutting and theft of timber. See 1937 Ark. Acts 29. Hackleton, accordingly, was prepared to defend against damages which require a showing of intent to destroy Larkan\u2019s property.\nSection 20-22-304, on the other hand, concerns causing fire and damage to another\u2019s property and, under these facts, would have required something less than intentional misconduct for the penalty to be assessed. Because double damages are penal in nature, it could be argued that more than mere negligence is required and at least recklessness must be proved on the part of the offender. Ark. Code Ann. \u00a7 5-2-203(b) (Repl. 1993). See also Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Cf. Lamb v. Hibbard, 228 Ark. 270, 306 S.W.2d 859 (1957). But see Whiteside v. Tyner, 238 Ark. 985, 386 S.W.2d 239 (1965) (negligence alone suffices for an award of double damages); Thomas v. Raney, 233 Ark. 836, 349 S.W.2d 129 (1961). But whether negligence or recklessness, less than intentional conduct may support double damages under \u00a7 20-22-304.\nTo summarize, an effective defense waged in opposition to \u00a7 20-22-304 could be markedly different from one mounted against the treble-damages provision of \u00a7 18-60-102(a). It would have been vasdy easier from Hackleton\u2019s perspective to prove that he was devoid of intentional misconduct under \u00a7 18-60-102(a) than to re&te an assertion of negligence, or even recklessness, under \u00a7 20-22-304. Thus, we conclude that it was imperative that the double-damages remedy under \u00a7 20-22-304 be pled in order to give Hackleton adequate notice of the remedy he would be confronting. The trial court\u2019s decision to apply the new remedy on the day of the trial was an abuse of discretion. See McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). We affirm the judgment against Hackleton but modify it to the amount of the jury verdict, $3,000.\nAffirmed as modified.\nGlaze, J., not participating.\nThe trial court apparently misread the annotation to \u00a7 20-22-304 regarding Cecil v. Headley, 237 Ark. 400, 373 S.W.2d 136 (1963), as discussed further in this opinion.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Broum and Keith McPherson, for appellant.", "Dover & Dixon, P.A., by: Gary B. Rogers, for appellee." ], "corrections": "", "head_matter": "Ronnie HACKLETON v. Johnny LARKAN\n96-638\n933 S.W.2d 380\nSupreme Court of Arkansas\nOpinion delivered November 18, 1996\nLaser, Wilson, Bufford & Watts, P.A., by: Brian Allen Broum and Keith McPherson, for appellant.\nDover & Dixon, P.A., by: Gary B. Rogers, for appellee." }, "file_name": "0649-01", "first_page_order": 651, "last_page_order": 657 }