Burford Distributing, Inc. v. Starr , 341 Ark. 914 ( 2000 )

ANNABELLE CLINTON Imber, Justice,

dissenting. I cannot agree ice, majority’s holding that the Arkansas Prize Promotion Act is not applicable to this case. The majority ignores part of the language in subsection (b) of Ark. Code Ann. § 4-102-101, where it says: “It is also the intent of the General Assembly to prohibit misleading or deceptive prize promotions. This chapter shall be construed liberallyin order to achieve this purpose.” Ark. Code Ann. § 4-102-101 (b) (emphasis added).

Here, Burford published and distributed a flyer that contained misleading and deceptive information regarding the hole-in-one contest. On the day of the tournament, the participants, including Mr. Starr, checked in at the clubhouse and were given “goodie bags” containing a flyer with the words “first hole-in-one August 3rd wins a car by Harry Robinson Poniac [sic] and also on a separate hole the first hole-in-one wins a $1000.00[.]” According to Mr. Starr, there was a sign in the clubhouse that said first hole-in-one on Hole No. 8 wins a car. However, upon reaching the tee boxes for the seventeenth and eighth holes, Mr. Starr and the other participants saw a banner containing contradictory rules for the contest. It stated that the “first hole-n-one on No. 17 wins this Buick Regal.” A Buick Regal was also parked near the seventeenth tee box.¹

The General Assembly has expressly stated its intent to prohibit such misleading or deceptive prize promotions, and, in order to achieve that purpose, has directed that the Act be construed liberally. The majority’s holding that the Act is not applicable to Burford’s golf tournament is the product of strict construction and a selective reading of the legislature’s express intent.

Furthermore, Arkansas Code Annotated section 4-102-102(3) defines “sponsor:”

“Sponsor” means a corporation, partnership, limited liability company, sole proprietorship, or natural person that offers a prize to a person in Arkansas in conjunction with the sale or lease of any product or service, or in conjunction with any real or purported contest, competition, sweepstakes, puzzle, drawing, scheme, plan, or other selection process that requires, or creates the reasonable impression of requiring, or allows the person to pay any money as a condition of receiving, or in conjunction with allowing the person to receive, use, compete for, or obtain a prize or information about a prize.

The definition states that a “sponsor” is a corporation (Burford) that offers a prize (the car) to a person in Arkansas (Mr. Starr) in conjunction with any real or purported competition (the golf tournament) that requires or allows the person “to pay any money as a condition of receiving, or in conjunction with allowing the person to receive, use, compete for, or obtain a prize.” Although Mr. Starr paid his entry fee before he knew about the prize, the payment of his entry fee was still a condition of competing for the prize. Several witnesses testified that no one could participate in the tournament without first paying the entry fee of $40 per person or $160 per team. In fact, Mr. Richard Burford, president of Burford Distributing, testified that the participants had to pay money as a condition of being in the golf tournament'. Thus, there was substantial evidence that Burford was a “sponsor.”

Although I disagree with the majority’s reasoning regarding the application of the Arkansas Prize Promotion Act to this case, I nonetheless conclude that the case should be reversed and remanded because the trial court failed to instruct the jury on the meaning of the term “pecuniary loss.” Burford argues that the trial court erred when it refused to instruct the jury on the meaning of “pecuniary loss” as that term is used in the Arkansas Prize Promotion Act. Ark. Code Ann. § 4-102-103(c)(l) (Rep. 1996) provides that:

Any person suffering a pecuniary loss because of an intentional violation of this chapter may bring an action in any court of competent jurisdiction and shall recover:

(A) Costs;

(B) Reasonable attorney’s fees; and

(C) The greater of:

(i) Five hundred dollars ($500); or

(ii) Twice the amount of the pecuniary loss.

Ark. Code Ann. § 4-102-103(a)(l). At the close of the case, the trial court instructed the jury and read the relevant portions of the Act, including Ark. Code Ann. § 4-102-103(c)(l). Burford had previously proposed an additional jury instruction which read as follows: “You are instructed that ‘pecuniary loss’ means the amount of monetary loss (as opposed to the ‘retail value’ of the prize) suffered by Danny Starr, if any, because of any intentional violation of A.C.A. § 4-102-105 or § 4-102-106.” The trial court, however, refused to submit that instruction to the jury, and stated that “it’s a question of fact for the jury as to what damages there will be; whether the retail value will be awarded or not is up to the jury.” Burford alleges that the trial court erred in so ruling. I agree.

The meaning of “pecuniary loss” as used in the Act is at issue here. The basic rule of statutory instruction is to give effect to the intent of the legislature. State v. R & A Investment Co., 336 Ark. 289, 985 S.W.2d 299 (1999). When a statute is clear, we give the statute its plain meaning, and the intent of the legislature is determined from the language used. Id. We are hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Id. In interpreting a statute and attempting to construe legislative intent, we look to the language of the whole act. John B. May Co. v. McCastlain, 244 Ark. 495, 426 S.W.2d 158 (1968). If the language is ambiguous or uncertain, we then look to the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. Id.; State v. R & A Investment Co., supra. Here, the language of the Act is not ambiguous or uncertain. We can and should determine the intent of the legislature from the plain language of the Act.

Arkansas Code Annotated section 4-102-101 contains legislative findings, declarations, and statements of intent. Subsection (a) of section 4-102-101 states in part that the General Assembly “recognizes that consumers have paid hundreds of thousands of dollars to sweepstakes, contests, and prize promoters based upon misrepresentations by those promoters to Arkansas consumers.” Subsection (a) further states that “[t]he promotions often mislead Arkansas consumers to believe that they must purchase the promoter’s product, or otherwise pay the promoter sums of money in order to be eligible to receive the prize.” Thus, it is clear that the legislature was concerned, at least in part, with the amounts of money that Arkansas consumers have paid out of their pockets for contests and promotions. Also, Ark. Code Ann. § 4-102-102(2) defines the term “retail value” and then, in Ark. Code Ann. § 4-102-107(2), requires sponsors who represent to a contestant that they have won a prize to provide the contestant with at least the “retail value” of the prize. Despite the fact that “retail value” is specifically defined in the Act, that term is not used in Ark. Code Ann. 4-102-103(c)(1), which lists specific categories of relief that are available under the Act. Rather, that section refers to a “pecuniary loss.” Based upon this statutory language, it is evident that the legislature did not intend for “pecuniary loss” and “retail value” to mean the same thing. Instead, “pecuniary loss” refers to money that Arkansas consumers pay to prize promoters and contest sponsors out of their own pockets. This interpretation of “pecuniary loss” is supported by our case law. See Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992) (equating the out-of-pocket measure of damages in a fraud case to the pecuniary loss sustained as a result of the fraud). Moreover, the damages provision of Ark. Code Ann. § 4-102-103(c)(l) allows a plaintiff to recover the greater of twice the amount of “pecuniary loss” or $500. Interpreting “pecuniary loss” to mean out-of-pocket loss rather than the retail value of the prize is more consistent with the use of the $500 measure of loss.² For these reasons, I believe that the jury instruction proposed by Burford was a correct statement of the law.

While a trial court is not required to give every correct instruction offered when the instructions given explicitly, clearly, fully, and fairly cover the matter requested, the trial court’s refusal to give a proper instruction will result in reversal, unless it affirmatively appears that no prejudice resulted. Benson v. Temple Inland Forest Prods. Corp., 328 Ark. 214, 942 S.W.2d 252 (1997). Here, the instructions did not clearly, fully, and fairly cover the matter because it left the jury with the ability to determine on their own what “pecuniary loss” meant. In doing so, the jury determined Mr. Starr’s pecuniary loss to be $20,000 or the retail value of the car. That determination was contrary to the plain language of the statute and resulted in prejudice to Burford. I must therefore conclude that the trial court’s refusal to properly instruct the jury on the meaning of “pecuniary loss” should result in reversal.

Burford also argues that we should reverse the trial court’s award of attorney’s fees in the amount of $10,000 because the award of $10,000 attorney’s fees is excessive if we interpret “pecuniary loss” to mean out-of-pocket expenses rather than the retail value of the car. Mr. Starr is entitled to recover “costs” and “reasonable attorney’s fees” pursuant to Ark. Code Ann. § 4-102-103(c)(l). Under that same provision, his recovery for pecuniary loss would be limited to $500 based upon the evidence introduced at trial.³ An award of $10,000 attorney’s fees is clearly excessive when compared to a recovery of $500 for pecuniary loss.

In my view, this matter should be reversed and remanded. I respectfully dissent.

BROWN, J., joins this dissent in part.

1 Mr. Starr hit the first and only hole-in-one of the August 3rd tournament, and, according to the flyer distributed before the tournament, he was the winner of the car. However, according to the banner, he was not the winner of the car because he hit the hole-in-one on the eighth hole rather than the seventeenth hole.

2 This conclusion is also supported by the language in section 4-102-103(d): “The relief provided in this section is in addition to remedies and penalties otherwise available in regards to the same conduct under law or under other statutes of this state.” (Emphasis added.) The relief available under the Act is in addition to and distinct from the benefit-of-the-bargain damages available in actions for breach of contract or fraud. In this case, Mr. Starr elected to abandon his breach of contract claim.

3 Mr. Starr paid $40 to enter the tournament. Twice the amount of his pecuniary loss would be $80.