ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

JOHN FRANK QUALLS, JR.

APPELLANT

v.

ROBERT FOSTER and CHUCK CALDWELL

APPELLEES

CA03-66

OCTOBER 8, 2003

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT

[CV2000-97]

HONORABLE HAROLD ERWIN, CIRCUIT JUDGE

REVERSED AND REMANDED

Karen R. Baker, Judge

Appellant John Frank Qualls, Jr., appeals the trial court's entry of a directed verdict. Appellees do not disagree with appellant's arguments raised in points I, II, and III, and state that the only issue we must decide is appellant's point IV regarding appellant's status as the real party in interest. Therefore, the only issue we must decide is whether the trial court erred in directing a verdict finding that appellant was not the real party in interest.

The test as to whether a trial court may direct a verdict without abusing its discretion is that the evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and if there is any conflict of evidence or the evidence is not in dispute but is in such a state that fair-minded men might draw a different conclusion, a jury question is presented. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Williams v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974); Ralston Purina Co. v. McCollum, 271 Ark. 840, 842, 611 S.W.2d 201, 202 (Ark. App. 1981). The motion should only be granted where the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992).

In the case before us, the trial court based its directed verdict upon the conclusion that appellant was not the real party in interest because he was acting in his corporate capacity during the course of events upon which this action was brought. At trial, appellant presented evidence that the parties were acting as individuals and appellees presented evidence that the parties were acting in their corporate capacities. Colloquy of counsel and the court on this issue indicates that the court's question was whether appellant could sue as an individual when he also had a corporate entity involved in the transaction. Appellees' counsel urged that the matter should be dismissed or the plaintiff's name changed to that of the corporate entity. Counsel for appellee argued that although appellant had a corporation, he never told appellees that he was operating as a corporation. In granting the directed verdict, the trial judge stated only that he was ruling for appellees and thereby giving appellant an additional issue to appeal.

The trial court's ruling was in error. The real party in interest is generally considered to be the person or corporation who can discharge the claim upon which the allegation is based and is not necessarily the person ultimately entitled to the benefit of any recovery. Gladden v. Bucy,

299 Ark. 523, 772 S.W.2d 612 (1989). Rule 17 of the Arkansas Rules of Civil Procedure provides:

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian (conservator), bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or the State or any officer thereof or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Appellees in this case asked that appellant's corporation be substituted for appellant individually as the plaintiff. Whether appellant was acting individually or on behalf of his corporation was a contested factual issue in the trial, and the court erred in directing a verdict. When a question of fact is presented as to who the real party in interest is, the question is for the jury to decide. See Cummins v. James, 4 Ark. 616 (1842). See also Mutual Ben. Health & Acc. Ass'n v. Hunnicutt, 181 Ark. 694, 27 S.W.2d 93 (1930). Therefore, the court should have joined the corporation as a party and submitted the case to the jury.

Accordingly, we reverse and remand.

Vaught and Crabtree, JJ., agree.