NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE OLLY NEAL

DIVISION III

CA 00-1054

June 6, 2001

SANDRA PINSON AN APPEAL FROM LOGAN

APPELLANT COUNTY CIRCUIT COURT

No. CIV 99-18 (I)

V.

HONORABLE PAUL DANIELSON

E. DAIN WOFFORD CIRCUIT JUDGE

APPELLEE

AFFIRMED

This is an appeal from the Logan County Circuit Court's award of damages to appellee E. Dain Wofford as a result of an employment dispute with appellant Sandra Pinson. The jury returned a verdict awarding appellee damages, and appellant raises five issues challenging the sufficiency of the evidence. We affirm.

Appellant is appellee's daughter. Appellee alleged in his complaint that appellant hired him to manage broiler houses on her property from 1994 to 1999 and that she failed to compensate him for his labor, the use of his tractor and truck, money he expended in paying debts on appellant's broiler houses, and materials he furnished to improve the broiler houses. Appellee asked for damages totaling $122,000. Appellant denied all allegations in the complaint and testified that she purchased the property, including the broiler houses, from her brother Dennis Wofford for $10. She stated that, at the time of the sale, she alsopaid the $165,000 debt that remained on the property. She said that appellee asked her to purchase the property and to allow him and her mother to manage the broiler houses. Appellant testified that, at appellee's request, she gave appellee a power of attorney to run the ranch and that both of their names were on the checking account. Appellant stated that appellee incurred numerous debts on the property without consulting her. The record reflects that appellant sold the property in September 1999 for $350,000, $122,000 of which was placed in a trust account pending a final hearing in this matter.

On February 2, 2000, Farm Credit Services of Western Arkansas, PCA ("FCSWA"), filed a motion to intervene, stating that, on January 12, 1989, a $361,245.85 judgment was entered in Logan County Chancery Court in its favor against appellee and his wife. The motion also provided that the judgment was revived on November 18, 1998, for another ten years. FCSWA attached a proposed complaint in intervention, asking the court to determine its rights to the funds that were being held in the trust account. On February 24, 2000, the trial court granted the motion to intervene and, on March 1, 2000, FCSWA filed its complaint in intervention. Appellee answered the motion to intervene, denied each allegation, and prayed that FCSWA take nothing.

A jury trial was held on March 1, 2000, and the circuit court entered its order on March 10, 2000, finding for appellee and awarding him damages in the amount of $122,000, consistent with the jury verdict. The order also provided that FCSWA had a pending complaint in intervention subject to adjudication of the circuit court and that the proceeds would remain in the trust account pending further ruling of the court as to distribution. Appellant filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The motion was denied by the circuit court on April 20, 2000. On June 12, 2000, the trial court entered a final order finding that the intervenor is entitled to the $122,000 being held in trust pending the outcome of this litigation. Appellant filed another notice of appeal on June 22, 2000, appealing all orders including the June 12, 2000, order.

Appellant raises five points for reversal: 1) that the trial court erred in finding that there was an enforceable contract or agreement between the parties; 2) that the trial court erred in not granting appellant's motion for directed verdict and motion for judgment notwithstanding the verdict; 3) that there is no substantial evidence to support the trial court's award of damages; 4) that the trial court erred in not finding that appellee's claims for damages were speculative; and 5) that the trial court erred in not barring appellee's recovery because of his failure to mitigate damages.

We now address appellant's first issue, whether the trial court erred in finding that there was an enforceable contract or agreement between the parties. The jury returned a general verdict that stated that they found for appellee and awarded him damages. No special interrogatories were requested, and no findings were made regarding the existence of a contract. The supreme court has previously held that, when a jury returns a general verdict and no special interrogatories are requested, we will not speculate on the basis of that verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). In such situations, we are left in the position of not knowing the basis for the jury's verdict and we will not question or theorize about the jury's findings. Id.

Appellant combined the remaining issues in her brief, and we will do the same here for the purposes of this appeal because they all attack the sufficiency of the evidence and the denial of appellant's motions for a directed verdict and for judgment notwithstanding the verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence, and, when reviewing a denial of a motion for a directed verdict, we determine whether the jury's verdict is supported by substantial evidence. Fayetteville Diagnostic Clinic v. Turner, 344 Ark. 490, ___ S.W.3d ___ (2001). Additionally, a motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of the evidence and as such is also governed by the rule that a trial court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Id. In reviewing the evidence, we do not pass upon the weight and the credibility of the evidence, because determinations remain within the province of the jury. Id.

Appellant argues that the evidence shows that part of the money to which appellee claims he is entitled actually belonged to appellee's son Dennis Wofford. However, there was testimony from appellee and from Dennis Wofford that appellee was to treat the cattle as his own and sell them to get whatever money he needed to take care of the expenses of running the farm. Appellant also argues that there is no substantial evidence to support theaward of damages and that the damages were speculative. However, appellee introduced into evidence a yellow pad listing his expenses and he testified that he kept this legal pad as a running total of expenditures over and above the chicken house money. He said that the expenditures included labor costs, telephone bills, electric bills, hardware, insurance and taxes. This is evidence of expenses and it was up to the jury to determine its weight and credibility. Id.

Appellant also argues that appellee increased the debt load of the farm by purchasing unnecessary items and that he failed in his duty to mitigate the damages. The determination of whether one has acted reasonably in mitigating damages is a question of fact. Quality Truck Equip. Co. v. Layman, 51 Ark. App. 195, 912 S.W.2d 18 (1995). The burden of proving that a plaintiff could have avoided some or all of the damages by acting prudently rests on the defendant, not only on the question of damages for failure to avoid harmful consequences, but also on the question of the amount of damage that might have been avoided. Id. In the instant case, the jury was instructed that a party must use reasonable care, effort, or expenditure in minimizing or mitigating his damages and that he may not recover for any damage he reasonably could have avoided. They were also instructed that the burden of proof on this issue is on the party asserting that damages could have been mitigated and that the jury could subtract any amount that could have been reasonably avoided. It was appellant's burden to prove that the purchases made by appellee were not reasonable and the amount of damages that could have been avoided had these purchases not been made, and the jury was made aware of this burden. The jury heard all the evidence, andthe weight and credibility of the evidence is left to the jury. Given the substantial-evidence standard and reviewing the evidence and all inferences in favor of the jury's verdict, the evidence was sufficient to allow the verdict to stand. We find no merit to any of appellant's arguments.

Affirmed.

Pittman and Bird, JJ., agree.