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TB OF BLYTHEVILLE v. LITTLE ROCK SIGN & EMBLEM6/2/1997
o Bell contends that the trial court erred in denying its motion for a new trial. This issue will not be addressed because it is moot in view of the discussion supra of errors which warrant the remand for a new trial.
For the foregoing reasons, we reverse and remand this action for a new trial consistent with this opinion.
Reversed and remanded.
NEWBERN, GLAZE, JJ., dissent.
TOM GLAZE, Justice, dissenting.
First, Taco Bell, as I understand the record, argued that, if Glenn Norwood was Interested Underwriter's agent, a fact issue existed whereby the jury could find (and did) that Norwood (and thereby Interest Underwriters) consented to Taco Bell's voluntary payment for the second sign. Thus, I fail to see how this court can reverse based upon Ark. Code Ann. § 4-2-607(1) (Repl. 1991). In other words, if Taco Bell's second sign is a repair, not an original good, the Uniform Commercial Code (§ 4-2-607) does not apply, and the trial court's ruling was correct that the common-law voluntary-payment rule bars Taco Bell's recovery.
While the majority attempts to recharacterize Taco Bell's sign replacement as resulting from Little Rock Sign's sale to Taco Bell of a new sign or original good governed by Ark. Code Ann. § 4-2-607(1), the evidence decidedly supports the view that the second sign resulted from repair work. In fact, the trial court, without objection as I read the record, instructed the jury that to assess Taco Bell's damages, it must fix the amount of money which would reasonably and fairly compensate Taco Bell for the reasonable expense of necessary repairs to the area surrounding the fallen sign and expenses for necessary repairs to the second sign. In addition, by interrogatory number one, the jury was asked to determine if Norwood acted within the scope of his authority for Interested Underwriters and if Interested Underwriters consented to the payment of $25,086.85 for the second sign. The jury answered yes. Examples of the evidence supporting the jury's decision are as follows:
• Laverne Lovette, Little Rock Sign's officer manager, averred that, on March 18, 1992, the sign and support post broke and fell. She said Taco Bell requested Little Rock Sign repair the broken sign, and, as a result, Little Rock Sign repaired the sign and post. She further averred that Little Rock Sign sent a bill in the amount of $26,085.85 for the repair work it had performed.
Glenn Norwood, General Adjuster, testified he saw Little Rock Sign's itemization for what the sign replacement would be and determined the cost was in line for what a sign replacement should be. Norwood said he was advised that a sign had been put back in place, and he knew that Little Rock Sign was the one that put it back in place. He further said that he told Little Rock Sign the person they needed to bill was the person who had hired them to do the repairs. Norwood identified a proof of loss statement that the full cost of repair or replacement was $25,086.85.
Darrell Glover, owner of Little Rock Sign, testified and identified the invoice for reinstallation of the damaged sign and said that immediately after the sign was damaged, "We started repairing and building a new sign." He further stated he replaced the parts that needed replaced and the amount of the bill was for all the work done in removing the damaged parts.
Mark Turner, General Manager of Edmondson Management, said, "We told Glover that the sign fell and we wanted him to put the sign back up for us," and he did that. According to Turner's notes, the re-erection of the sign was completed on May 1, 1992. Turner later expressed that he had done enough for Glover by payin
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