{ "id": 298609, "name": "George HANKINS v. DEPARTMENT of FINANCE and ADMINISTRATION; and Lawyers Surety Corporation", "name_abbreviation": "Hankins v. Department of Finance & Administration", "decision_date": "1997-11-06", "docket_number": "96-1465", "first_page": "492", "last_page": "497", "citations": [ { "type": "official", "cite": "330 Ark. 492" }, { "type": "parallel", "cite": "954 S.W.2d 259" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "294 Ark. 427", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895763 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0427-01" ] }, { "cite": "287 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876553 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0487-01" ] }, { "cite": "907 S.W.2d 690", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1447476 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0045-01" ] }, { "cite": "322 Ark. 43", "category": "reporters:state", "reporter": "Ark.", "year": 1995, "opinion_index": 0 }, { "cite": "324 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159521 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0246-01" ] }, { "cite": "312 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935005 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0401-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(d)(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 23-112-302", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "313 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914583 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "Hankins I" }, { "parenthetical": "Hankins I" } ], "opinion_index": 0, "case_paths": [ "/ark/313/0394-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-112-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 499, "char_count": 9344, "ocr_confidence": 0.726, "pagerank": { "raw": 1.9556288633421432e-07, "percentile": 0.7373397059056339 }, "sha256": "1c5b7e821f98a37d6b90e082e93587e486d7e988521d38ca952881ade679a40a", "simhash": "1:3b6a6ce133299d99", "word_count": 1587 }, "last_updated": "2023-07-14T16:33:54.141445+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George HANKINS v. DEPARTMENT of FINANCE and ADMINISTRATION; and Lawyers Surety Corporation" ], "opinions": [ { "text": "Ray Thornton, Justice.\nThis is a second review of this controversy. In 1991, George Hankins, appellant, obtained a default judgment against Larry McElroy for $25,869, on the basis of losses' sustained from unpaid promissory notes together with losses of $1,000 relating to-the sale of a Camaro and $1150 relating to the sale of a GMC truck. In an attempt to recover the McElroy judgment, Hankins sought a declaratory judgment against Lawyers Security Company, the surety, for a $25,000 bond required for McElroy as a motor-vehicle dealer. Lawyers offered to settle the claim by paying Hankins $2115 pursuant to Ark. R. Civ. P. 68. Hankins did not accept the offer. The trial court in its declaratory judgment ruled against Hankins, finding that the bond could not be used to satisfy appellant\u2019s judgment.\nOn appeal, we reversed and dismissed without prejudice because Hankins had not exhausted available administrative remedies. We held that the appropriate remedy was to seek payment under the bond by presenting the default judgment to the Department of Finance & Administration (DF&A) pursuant to Ark. Code Ann. \u00a7 23-112-603 (Supp. 1995). Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993) (Hankins I).\nHankins renewed his efforts to collect his default judgment by seeking administrative relief from DF&A and a hearing was held on September 7, 1994, before an administrative law judge. Hankins argued that Lawyers was liable on the bond because McElroy\u2019s actions in incurring the debts were sufficient to warrant the suspension or revocation of his car dealer\u2019s license under the provisions of Ark. Code Ann. \u00a7 23-112-302, which provides for recovery of such bonds. The ALJ found that the transactions between McElroy and Hankins were personal debts between businessmen and not sufficient reason to cause suspension or revocation of the license.\nHankins appealed the adverse decision to the circuit court, which sustained the agency decision. The court granted DF&A\u2019s motion to be reimbursed for costs of producing the transcript pursuant to Ark. Code Ann. \u00a7 25-15-212(d)(2) (Repl. 1996). On August 13, 1996, Lawyers\u2019 attorney moved to recover costs pursuant to Ark. R. Civ. P. 68, which allows recovery of costs by an offeror of judgment \u201c[i]f the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer . . . . \u201d The court denied the motion.\nWhile Hankins\u2019s attorney was abstracting the record for review by this court, it was discovered that portions of it were missing. On March 3, 1997, the circuit judge issued an order settling the record and the ALJ\u2019s order was added. The circuit judge noted in a cover letter that the transcript of the administrative hearing did not contain all of the testimony and that the missing portions of the record of the administrative hearing were not in the material considered by the circuit court; therefore, the record could not be completed from the circuit court. Hankins did not seek to settle the record at the agency level.\nHankins argues on appeal that the circuit court erred: (1) in failing to consider the entire record of the administrative proceeding; (2) in upholding the ALJ\u2019s order; and (3) in granting DF&A judgment against him for costs in producing the transcript. Lawyers cross-appeals the denial of costs. None of the arguments has merit, and we affirm.\nWe now proceed to review the issues before us in this appeal. Hankins argues that the circuit court erred in fading to consider the entire record of the administrative proceeding, and in upholding the ALJ\u2019s order. These arguments appear to be based upon the premise that we review the circuit court\u2019s decision in an appeal from a proceeding by an administrative agency. This premise is incorrect. In an appeal from an administrative order, our review is directed to the agency\u2019s decision, not the circuit court\u2019s. Brimer v. Arkansas Contractors Lic. Bd., 312 Ark. 401, 849 S.W.2d 948 (1993). However, we cannot review the agency\u2019s decision in this case because we do not have the complete record before us. It is incumbent upon an appellant to bring up a record sufficient to show error. Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Our rules of appellate procedure provide a remedy for settling an incomplete or inaccurate record. Rule 6 of the Arkansas Rules of Appellate Procedure provides in pertinent part as follows, \u201cIf any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.\u201d Hankins did not avail himself of this remedy.\nThe portion of the record that we have before us indicates that there were exhibits and testimony that are missing. Hankins bases much of his argument for reversal of the agency\u2019s decision upon these missing exhibits and testimony. It was his obligation to ensure that the record be made complete so that we could reach his arguments. Because he did not do so, he has not met his burden of producing a record sufficient for our review, Grinning v. City of Pine Bluff, 322 Ark. 43, 907 S.W.2d 690 (1995); therefore, we summarily affirm the agency\u2019s decision.\nWe next address Hankins\u2019s contention that the trial court erred in ordering him to pay the costs of the record. He argues that, although DF&A was the prevailing party, it did not transmit the entire record to circuit court. Arkansas Code Annotated \u00a7 25-15-212 provides in pertinent part:\n(d)(1) Within thirty (30) days after service of the petition or within such further time as the court may allow, but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review.\n(2) The cost of the preparation of the record shall be borne by the agency. However, the cost of the record shall be recovered from the appealing party if the agency is the prevailing party.\nId. \u00a7 25-12-212(d)(l)-(2) (Repl. 1996). The record shows that DF&A ordered and paid for a transcript of the entire record. Again, it was incumbent upon Hankins to ensure that a complete record was available for our review. The deficiency in the record was not called to DF&A\u2019s attention before the circuit court had assessed costs, and DF&A\u2019s offer to supplement the record, made after the decision of the circuit court, was not accepted. Because DF&A paid for a transcript and was the prevailing party, the circuit court did not err in ordering Hankins to reimburse the agency.\nLawyers argues on cross-appeal that the circuit court erred when it denied its motion for costs on an offer of judgment that it made during the first trial on this matter. The trial court stated tliat it was without jurisdiction to hear the motion because it was made during the first trial. Lawyers points out that our holding in Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), provides that such a motion could survive a previously dismissed action under Ark. R. Civ. P. 41(d). However, we affirm the trial court because we conclude that Lawyers reversed its position during the second trial and that the offer of judgment was effectively withdrawn.\nOn January 30, 1992, during the first trial, Lawyers made an offer of judgment in the sum of $2,115.00 to Hankins in full settlement of the claim. This sum represented the sale of the Camaro and the GMC truck. Hankins did not reply or accept the offer. The portion of the record that is before us reveals that at the administrative hearing on September 7, 1994, Hankins testified that he allowed Mr. McElroy to draft upon a line of Hankins\u2019s credit to purchase these vehicles. During oral argument before this court, Lawyers\u2019 attorney stated that after this testimony came out in the hearing before DF&A it reversed its position and took the stance that the sale of the vehicles was not covered by the bond, but was also merely a debtor-creditor issue.\nWe recognize that Ark. R. Civ. P. 68 requires the trial judge to order an offeree to pay the authorized costs after the making of a bona fide offer, if the judgment, exclusive of interest, is not more favorable than the offer. See Darraugh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). However, the trial court is not required to award costs to a prevailing party when no offer of judgment is made. Id. It appears that Lawyers did not continue the offer of judgment made during the first trial, and no specific offer of judgment was made in the case on retrial. We uphold the trial court\u2019s denial of costs.\nWe summarily affirm the agency\u2019s order in favor of Lawyers because the record was not complete enough to allow us to evaluate it. We affirm the circuit court\u2019s order requiring Hankins to pay DF&A for the costs of producing the transcript and affirm on cross-appeal its denial of costs to Lawyers.", "type": "majority", "author": "Ray Thornton, Justice." } ], "attorneys": [ "Diana M. Maulding, for appellant.", "Brandon Lee Clark and Daniel Scott Smith, for appellee DF&A.", "Joel Taylor, for appellee Lawyers Surety Corp." ], "corrections": "", "head_matter": "George HANKINS v. DEPARTMENT of FINANCE and ADMINISTRATION; and Lawyers Surety Corporation\n96-1465\n954 S.W.2d 259\nSupreme Court of Arkansas\nOpinion delivered November 6, 1997\n[Petition for rehearing denied December 11, 1997.]\nDiana M. Maulding, for appellant.\nBrandon Lee Clark and Daniel Scott Smith, for appellee DF&A.\nJoel Taylor, for appellee Lawyers Surety Corp." }, "file_name": "0492-01", "first_page_order": 530, "last_page_order": 535 }