Vinson Electric Supply, Inc. v. Poteete

Citations: 1995 Ark. LEXIS 526; 321 Ark. 516; 905 S.W.2d 831Docket: 95-52

Court: Supreme Court of Arkansas; September 18, 1995; Arkansas; State Supreme Court

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Plaintiff Vinson Electric Supply Company secured a judgment for $14,471.00 against defendants Johnny Carolina, David Carolina, and J&D Carolina General Contractors, Inc. due to non-payment. On August 5, 1993, the plaintiff requested a writ of execution from the Circuit Clerk to seize the defendants' property, which was received by the Conway County Sheriff on August 16, 1993. Under Arkansas law, the Sheriff was required to return the writ within sixty days. However, on September 30, 1993, the Sheriff returned the writ to the plaintiff's attorney, stating it lacked a specific property description necessary for execution, and did not file it with the Circuit Clerk. The plaintiff did not provide the required property details nor returned the writ.

On October 21, 1993, after the sixty-day deadline, the plaintiff initiated legal action against the Sheriff. Both parties sought summary judgment; the trial court granted judgment for the Sheriff, who claimed he was not liable due to the interference of the plaintiff's attorney, who retained the original writ and failed to provide the property description. The Sheriff asserted he acted in accordance with the law, citing statutory immunity and due care. The plaintiff appealed, arguing that summary judgment was improperly granted. However, the appellate court affirmed the trial court's decision, noting that there was no genuine issue of material fact and the Sheriff was excused from liability due to the plaintiff’s attorney's interference.

The Sheriff claimed he was not liable based on the interpretation of relevant statutes. The plaintiff, on appeal, argued that the trial court wrongly granted summary judgment, asserting that a sheriff cannot avoid liability unless the judgment creditor takes some affirmative action or intentionally interferes with the sheriff's duties. The plaintiff maintained that he did neither. Historical case law indicates that initially, statutes were strictly enforced against officers, but this approach evolved to prevent judgment creditors from benefiting from their own interference in an officer's duties. Notably, in *Southern Credit Corp. v. Atkinson*, the court ruled that a sheriff who returned a writ improperly, by mailing it to the creditor's attorney instead of filing it, was not liable because the attorney's actions may have contributed to the sheriff's mistake. In the current case, the sheriff received the writ from the plaintiff’s attorney and returned it in a similar manner. Additionally, the sheriff had requested specific property listings from the plaintiff’s attorney, who failed to provide them and did not file the writ on time. The case of *Wilkerson v. Mobley* further illustrates that a judgment creditor cannot hold a sheriff accountable if they have contributed to any failure to perform duties. Overall, the interpretation of statutes has shifted from strict liability to allowing for creditor contribution to the sheriff's omissions.

The creditor argued that the Sheriff should not be excused for failing to return the first execution without a waiver-like action on his part. The court rejected this interpretation, affirming summary judgment by stating that a plaintiff should not benefit from their own failures. In this case, the plaintiff's attorney mailed the writ to the Sheriff, who returned it asking for specification of the property to be executed upon. The attorney did not respond and retained the writ past the deadline. The trial court correctly interpreted the statutes, leading to the affirmation of summary judgment.

On appeal, the plaintiff claimed there was a material dispute of fact, arguing that he had only sent a copy of the writ to the Sheriff and that the original was on file nearby. However, the plaintiff had previously stated to the trial court that there were no disputed facts. The court emphasized that a party cannot contradict their prior statements in seeking to reverse a summary judgment. The court noted that it was unnecessary to address other arguments from the plaintiff, but mentioned a point regarding the interpretation of Ark. Code Ann. 16-66-104, concerning the requirement for a writ of execution to specify property. The statute allows for alterations in the writ's wording and mentions the possibility of a description of specific property without making it mandatory. The court suggested that the General Assembly might consider clarifying this statute to eliminate ambiguity regarding the validity of a writ of execution when property is not specified. The judgment was affirmed.