Volume 73 — Arkansas Appellate Reports

1. Appeal error — arguments not made to trial court — appellants in no position to complain on appeal. — Where appellants conceded the validity of appellee's security interest in the subject equipment before an earlier order was entered, and where they neither made arguments concerning the property to the circuit judge before he entered the order of replevin nor filed an appeal from that order, they were in no position to complain on appeal about the validity of appellee's security interest in, or right to possess, the equipment.<page_number>Page 326</page_number> 2. Judgment — <italic>res judicata</italic> — findings orders of decree cannot later be collaterally attacked. — When a judgment becomes final, it is protected by the common-law principle of <italic>res</italic> <italic>judicata</italic>, and the findings and orders of the decree cannot later be collaterally attacked, even if they are erroneous. 3. New trial — newly discovered evidence — not favored remedy. — A new trial based on newly discovered evidence is not a favored remedy, and whether to grant a motion for new trial on such grounds is within the sound discretion of the trial judge. 4. New trial — newly discovered evidence — movant's burden. — In a hearing on a motion for new trial based on newly discovered evidence, the burden is on the movant to establish that he could not with reasonable diligence have discovered and produced the evidence at the time of trial. 5. Courts — power to modify or set aside order — restrictions upon. — After ninety days, without the showing of one of the exceptions listed in Ark.R.Civ.P. 60, a court has no power to modify or set aside an order; a court can only correct the record to make it conform to action that was actually taken; a decree cannot be modified to provide action that the court, in retrospect, should have taken but which it in fact did not take. 6. Courts — power to correct decree — inherent in courts. — A court does has the power to correct a decree to more accurately reflect its original ruling; the appellate court has long recognized the inherent power of the courts to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. 7. Courts — circuit court had jurisdiction to interpret enforce earlier order — circuit court did not err in denying appellants' motion to set aside earlier order. — When the circuit judge entered his order finding a front-end loader to be a part of a tractor for which replevin had been ordered earlier, the circuit court had no jurisdiction to revisit the issue of the validity of appellee's financing documents; the court, however, had jurisdiction to interpret its earlier order as including the front-end loader and to enforce that order, which is precisely what it subsequently did; the appellate court would not reverse the circuit judge's ruling that, at all relevant times, the front-end loader was in fact attached to, and an integral part of, the tractor where it was not clearly against a preponderance of the evidence; because the circuit judge did not err in denying appellants' motion to set aside the replevin order, the appellate court also reject appellants' argument that, under Ark.R.Civ.P. 61, their rights were adversely affected in a manner inconsistent with substantial justice.<page_number>Page 327</page_number> 8. Contempt — civil contempt — objective. — In cases of civil contempt, the objective is the enforcement of the rights of private parties to litigation; punishment for civil contempt will be upheld by the appellate court unless the trial court's order is arbitrary or against the weight of the evidence. 9. Contempt — violation of judge's order — when party may be held in contempt. — Before a person may be held in contempt for violation of a judge's order, the order alleged to be violated must be definite in its terms as to the duties imposed and the command must be express rather than implied; when a party does all that is expressly required of him, it is error to hold him in contempt. 10. Contempt — circuit court erred in finding appellants in contempt for not delivering equipment after entry of replevin order — order affirmed in part. — Where, although appellee proved that the front-end loader was within the terms of the financing documents, it was not expressly mentioned in the order of replevin, the appellate court held that it was error to find appellants in contempt for not delivering the front-end loader after entry of the replevin order; the appellate court, however, affirmed that part of the circuit judge's order directing appellants to reassemble the front-end loader and to deliver it to appellee within thirty days.

1. Judgment — summary judgment — standard of review. — In summary judgment cases, the appellate court need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. 2. Judgment — summary judgment — tool in trial court's efficiency arsenal. — Summary judgment is no longer considered a drastic remedy but is regarded simply as one of the tools in the trial court's efficiency arsenal. 3. Judgment — summary judgment — movant's burden. — The burden of sustaining a motion for summary judgment is always the responsibility of the moving party; all proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party.<page_number>Page 359</page_number> 4. Negligence — duty — concept discussed. — The first question that must be answered in a negligence case is, what duty, if any, the defendant owed to the plaintiff; duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other; ordinarily, a person is under no duty to control the actions of another person, even though he has the practical ability to do so; one is not liable for the acts of another person unless a special relationship exists between the two, such as master and servant, or unless a special relationship exists between him and the victim that gives the victim the right to protection. 5. Negligence — duty — question of law. — The question of what duty is owed to the plaintiff is always one of law. 6. Negligence — duty — no duty owed appellant by appellee under traditional tort law. — Where appellant did not demonstrate that any special relationship existed between either appellee and the driver of the vehicle involved in the accident in question or appellee and herself, the appellate court concluded that, in the absence of such a relationship, no duty was owed by appellee to appellant under traditional tort law. 7. Torts — duty — operation of tavern. — A duty exists to protect persons from the acts of other persons in connection with the operation of a tavern. 8. Negligence — duty — no authority for imposing duty on security company toward person not present on premises company was guarding. — No authority imposes a common-law duty on a security company toward a person who was not present on the premises the company was guarding. 9. Negligence — duty — no evidence that appellee's security guards encouraged driver to drive while intoxicated. — There was no evidence that appellee's security guards encouraged the driver of the vehicle involved in the accident in question to drive while intoxicated. 10. Torts — duty of care — may arise out of contractual relationship. — A duty of care may arise out of a contractual relationship between two parties. 11. Torts — contractual duty — not owed to anyone other than business or business's patrons. — Where a contract between appellee and a business imposed certain duties on appellee, such as "the prevention, observation, or detection of any unauthorized activity on private property" and the "protection of individuals from bodily harm," there was nothing to indicate that the duties were owed to anyone other than the business or perhaps the business's patrons, <italic>i.e</italic>., persons and property on the business's premises.<page_number>Page 360</page_number> 12. Contracts — presumption that parties contract only for themselves — contract not construed as having been made for third parties' benefit. — It is presumed that parties contract only for themselves; a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the parties. 13. Negligence — duty — contract between appellee business created no duty upon which appellant could premise negligence action. — Even viewing the evidence in a light most favorable to appellant, the appellate court concluded that there was nothing in the contract between appellee and a business to indicate that it was intended to benefit appellant; the contract created no duty upon which appellant could premise a negligence action. 14. Torts — duty of care — rationale regarding alcoholic-beverage vendor's enhanced duty of care not extended to security companies. — The legislature has not expressly imposed upon security guard agencies the same "high duty of care" required of alcoholic beverage vendors; there is no language in Act 429 of 1977 and Act 792 of 1981, which concern the licensing of security agencies, that compares with the language the legislature used to impose an enhanced duty of care on the vendor of alcoholic beverages; thus, the appellate court declined to extend the rationale in <italic>Shannon v. Wilson</italic>, <cross_reference>329 Ark. 143</cross_reference>, <cross_reference>947 S.W.2d 349</cross_reference> (1997), and <italic>Jackson v. Cadillac Club, Inc</italic>., <cross_reference>337 Ark. 24</cross_reference>, <cross_reference>986 S.W.2d 410</cross_reference> (1999) to this case. 15. Torts — professional standard of care — statutes applied only to accountants attorneys. — Where appellant argued that appellee should be held "to a professional standard of care," claiming that liability might be imposed on appellee as it was on other professionals in connection with Ark. Code Ann. §§ <cross_reference>16-114-301</cross_reference> to -303 (Supp. 1999), the appellate court was unable to determine how those statutes, which applied only to accountants and attorneys, might be used to create a duty on the part of appellee; appellant offered no convincing argument as to why they should apply to security companies.

1. <bold>Statutes — construction — factors considered. —</bold> In considering the meaning of a statute, the appellate court considers it just as it reads, giving words their ordinary and usually accepted meaning in common language; if the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation; where the meaning is not clear, the court looks to the language of the statute, the subject matter, the remedy provided, the legislative history, and other appropriate means that shed light on the subject; the appellate court will also look to the object to be accomplished and the purpose to be served by the statute. 2. <bold>Statutes — construction — standard on appeal. —</bold> Although the appellate court is not bound by the decision of the trial court, in absence of a showing that the trial court erred in its interpretation of the law, the appellate court will accept that interpretation as correct on appeal. 3. <bold>Statutes — construction — absurd conclusion will not be</bold> <bold>reached. —</bold> The appellate court will not interpret a statute in a manner so as to reach an absurd conclusion that is contrary to legislative intent. 4. <bold>Schools school districts — statute expressly directed that</bold> <bold>school districts incorporate its rights into their written personnel</bold> <bold>policies — general savings clause insufficient to comply with</bold> <bold>statute's express directive. —</bold> Where appellee contended that Ark. Code Ann. § <cross_reference>6-17-1209</cross_reference> did not provide a private right of action and simply required school districts to incorporate its terms into their written personnel policies, but presented no support for its argument that the general savings clause in the Professional Negotiations Agreement (PNA) was sufficient to comply with the express directive in Ark. Code Ann. § <cross_reference>6-17-1209</cross_reference> (b) (Repl. 1999) that school districts incorporate its rights within the terms of their written personnel policies, the appellate court rejected the argument; subsection (b) would be meaningless if appellee's argument was followed; similarly, it would be absurd to<page_number>Page 367</page_number> conclude that the statute did not give a teacher a private right of action. 5. <bold>Schools school districts — appellee breached obligation to</bold> <bold>provide appellant with statutory leave while she was still employee</bold> <bold>— appellant would not have taken retirement if appellee had</bold> <bold>satisfied its statutory obligation. —</bold> Where appellant asked appellee if there was any alternative to using her accumulated sick leave and was informed that there was none, appellee breached its obligation to provide appellant with statutory leave under Ark. Code Ann. § <cross_reference>6-17-1209</cross_reference> while she was still an employee; appellant would not have taken retirement when she did if appellee had satisfied its statutory obligation to her. 6. <bold>Schools school districts — PNA did not include rights as</bold> <bold>provided by statute — no administrative remedy was available</bold> <bold>to appellant. —</bold> Appellee's assertion that appellant's claim should have been denied because she failed to exhaust administrative remedies set forth in the PNA was rejected; although the PNA provided a grievance procedure for matters included within its terms, it did not include the rights in section <cross_reference>6-17-1209</cross_reference>, which provided for a year's paid personal absence upon suffering an injury caused by an act committed against a teacher in the course of employment; therefore, no administrative remedy covering these rights was available to appellant. 7. <bold>Statutes — strict construction required by Workers'</bold> <bold>Compensation Act — such construction not required by Ark. Code</bold> <bold>Ann. § <cross_reference>6-17-1209</cross_reference>. —</bold> Although the appellate court is obliged to strictly construe and apply the Workers' Compensation Act pursuant to statute, the court was under no such constraints regarding section <cross_reference>6-17-1209</cross_reference>, which is an entirely separate and unrelated statute. 8. <bold>Schools school districts — appellant suffered from post-</bold> <bold>traumatic stress disorder — personal injury within meaning of</bold> <bold>Ark. Code Ann. § <cross_reference>6-17-1209</cross_reference> clearly sustained. —</bold> Where appellant testified that, as a result of the incident, she developed hypertension that caused her to "pass out," in addition to depression, post-traumatic stress disorder, anxiety, and mental confusion, the appellate court, given appellant's evidence of the effects that the incident had on her, had no hesitation in holding that appellant sustained a personal injury within the meaning of section <cross_reference>6-17-1209</cross_reference>. 9. <bold>Jurisdiction — subject-matter jurisdiction — how</bold> <bold>determined. —</bold> The question of subject-matter jurisdiction is determined by the characterization of the case.<page_number>Page 368</page_number> 10. <bold>Jurisdiction — appellant alleged breach of employment contract</bold> <bold>— circuit court had subject-matter jurisdiction. —</bold> Where appellant alleged that appellee's failure to comply with section <cross_reference>6-17-1209</cross_reference> constituted a breach of her employment contract with appellee, the circuit court had subject-matter jurisdiction of the action. 11. <bold>Administrative law procedure — waiver — relinquishment</bold> <bold>of right must be intentional. —</bold> Waiver is voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits; it may occur when one, with full knowledge of material facts, does something that is inconsistent with the right or his intention to rely upon that right; the relinquishment of the right must be intentional. 12. <bold>Appeal error — finding of circuit judge — standard of</bold> <bold>review. —</bold> The appellate court will not reverse a circuit judge's finding of fact unless it is clearly erroneous or clearly against the preponderance of the evidence. 13. <bold>Appeal error — appellant had no knowledge of statutory right</bold> <bold>until after retirement — circuit judge's finding that</bold> <bold>appellant did not waive her statutory rights was not clearly</bold> <bold>erroneous. —</bold> Where appellant had no knowledge of her rights under section <cross_reference>6-17-1209</cross_reference> until long after she had used up her sick leave and had taken disability retirement, and it was equally clear that appellee took no action to inform appellant of those rights, the circuit judge's finding that appellant did not waive her statutory rights was not clearly erroneous or clearly against the preponderance of the evidence. 14. <bold>Evidence — collateral-source rule defined — applicable to</bold> <bold>more than tort cases. —</bold> The collateral-source rule provides that benefits received by a plaintiff from a source that is wholly independent of and collateral to the defendant does not reduce damages recoverable for the defendant; it is generally held that recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result; this rule, which has long been applied in the context of tort cases, has also been applied in other types of actions. 15. <bold>Evidence — collateral-source rule — arguments for.</bold> <bold>—</bold> The arguments for the collateral-source rule are that it preserves the rights of subrogation for those who have aided the plaintiff; that in the case of a gift to the injured plaintiff, the gift was intended for him, not for the defendant, who should not, therefore get credit for it by a reduction in his damages; and that in the case of insurance paid for by the plaintiff, or job benefits bargained for by<page_number>Page 369</page_number> him, the benefit is one paid for by the plaintiff in the form of premiums or reduced salary scale, and that the defendant cannot reasonably claim any credit for something the plaintiff has bought. 16. <bold>Unemployment compensation — adoption of collateral-source rule</bold> <bold>— award of back pay cannot be reduced by unemployment</bold> <bold>compensation benefits. —</bold> In the context of employment cases, an award of back pay cannot be reduced by unemployment compensation benefits because they are considered a collateral source. 17. <bold>Schools school districts — employment breach-of-contract</bold> <bold>cases — collateral-source rule inapplicable. —</bold> The collateral-source rule has no application to employment breach-of-contract cases where the dismissed employee has subsequently earned income from other employment; an employee has a duty to take reasonable steps to mitigate his damages. 18. <bold>Schools school districts — employee lacked ability to work</bold> <bold>— circuit judge erred in deducting appellant's retirement</bold> <bold>disability pay from her award. —</bold> Teacher retirement disability payments are not paid by the school district, but by a third party, and so are a collateral source; because appellant clearly lacked the ability to work at all, much less obtain other employment, the circuit judge erred in deducting appellant's retirement disability pay from her award; this point was reversed and remanded. 19. <bold>Contracts — measure of damages for breach. —</bold> A party to a contract who is injured by its breach is entitled to compensation for the injury sustained and is entitled to be placed, insofar as this can be done with money, in the same position she would have occupied if the contract had been performed. 20. <bold>Contracts — sick leave — award consistent with basic</bold> <bold>purpose of award of damages. —</bold> Where, if appellee had given appellant the statutory leave of absence, appellant would then have used her accumulated sick leave to continue her employment and would not have retired until after her sick leave was exhausted, the award of sick leave was consistent with the basic purpose of an award of damages.