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Burrow v. J.T. White Hardware & Lumber Co.

Court of Appeals of Arkansas, Division II

March 28, 2018

DANNY L. BURROW APPELLANT
v.
J.T. WHITE HARDWARE & LUMBER COMPANY APPELLEE

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCV-03-764] HONORABLE JOHN N. FOGLEMAN, JUDGE

          Martin E. Lilly, for appellant.

          Snellgrove, Langley, Culpepper, Williams & Mullally, by: J. Chad Owens, for appellee.

          BART F. VIRDEN, JUDGE

         Danny L. Burrow appeals from the Craighead County Circuit Court order finding him in contempt of court, imposing fines and costs, sentencing him to twenty days in jail, and awarding appellee attorneys' fees. We affirm.

         I. Facts

         On October 31, 2003, Rick Tubbs, owner of J.T. White Hardware & Lumber Company, filed a motion for default judgement against Danny and Shena Burrow. On July 1, 2004, the Craighead County Circuit Court granted the motion and awarded Tubbs $9, 127.92 in damages plus interest and $1, 000 in attorney's fees. The circuit court also ordered the Burrows to file a verified affidavit of property. In 2006, the circuit court issued a writ of execution ordering the sheriff of Craighead County to take into his possession a Lexus, a tractor, and a dump trailer, or any other personal property or money in the amount of the owed sum. On March 10, 2006, the writ was returned, and it set forth that the personal property that had been located was encumbered by liens or belonged to Burrow's mother. The undiscovered property had been sold, according to Burrow, and no assets were collected as a result of this writ.

         In September 2015, Tubbs learned that Danny Burrow owned several antique vehicles, and the circuit court issued another writ of execution. The writ commanded the Craighead County sheriff to take possession of six vehicles: a 2007 Ford Mustang, a 1964 Ford Fairlane, a 1972 Chevrolet El Camino, a 2012 Cadillac SRX, a 2012 Ford F-150 crew cab, and a 1970 Chevrolet C10 truck. By this time, $6, 139.96 in interest had accrued on the default judgment, and including credits and setoffs, the circuit court found that the Burrows owed $16, 412.88 plus any interest that would continue to accrue.

         On December 16, 2015, Tubbs petitioned the court to reopen the case for purposes of collection. The court issued a subpoena duces tecum ordering Danny Burrow to appear for deposition and to produce, among other things, any and all documentation regarding the six vehicles described in the writ, documentation of his ownership or lease of the "shop building, " and an itemized list of the contents of the shop building. Burrow presented himself for deposition on or around January 13, 2016, [1] and he responded to questions regarding his ownership of the vehicles listed in the writ and the location of those vehicles.

         On January 12, 2016, a writ of execution was issued to the sheriff of Craighead County and to the sheriff of Cross County. On February 3, 2016, Lieutenant Philip Wheaton of the Craighead County Sheriff's Office entered certification that he served Danny Burrow with the writ on January 13, 2016, at 1:13 p.m. In the writ, Wheaton stated that he located the vehicles at 2210 Conrad Drive and 4208 Sydney Cove in Jonesboro and that he took possession of the Fairlane and the El Camino. The writ showed that on January 20, 2016, at 3:20 p.m., Burrow paid the writ in full, and the vehicles were released to him.

         On March 3, 2016, Tubbs filed a petition to show cause why Burrow should not be held in contempt of court. In the petition, Tubbs alleged that Burrow had refused to comply with the circuit court's default judgment. Specifically, Tubbs stated that Burrow had not filed a schedule of assets within forty-five days of the 2004 default judgment, he had hidden his assets, he had refused to produce documentation regarding the assets, he had lied under oath regarding his assets, and he had otherwise refused to cooperate with Tubbs's attempts to collect on the default judgment. Tubbs asserted that Burrow's actions "interfered with the Court's Default Judgment filed on July 1, 2004, and with a subpoena duces tecum issued to defendant on December 16, 2015." Tubbs alleged that Burrow, through his attorney, sent a letter to Tubbs's attorney stating that all the vehicles listed in the writ of execution were encumbered by liens. In a second letter sent two days later, Burrow reported that all the vehicles listed in the writ, except the Cadillac, had been sold before the writ issued. Tubbs attached both letters to his petition, and he also attached title registration and lien reports showing that Burrow held the title to the El Camino and the Fairlane and that the cars were unencumbered by liens. In an affidavit attached to the petition, Tubbs described in detail Burrow's multiple attempts to hide the El Camino and Fairlane and the measures Tubbs had been required to take to find the property. Tubbs also attached Burrow's recent deposition in which he denied any knowledge of the location of the cars.

         On December 14, 2016, the circuit court held a show-cause hearing for Burrow to explain why he should not be held in contempt. Burrow chose not to testify, and excerpts from his deposition were read into evidence. In his deposition Burrow claimed that he had forgotten to bring both his tax returns and any paperwork on the cars regarding ownership or sale of the vehicles. Burrow stated that the only car he currently owned was the Cadillac. Burrow stated that in September 2015, he sold the Fairlane at a Kentucky car show to a man from Colorado, and he sold the El Camino at a Nashville car show to a man from Mississippi. Both were cash-for-title sales, and he had no paperwork from the sales. Burrow explained that he had spent the proceeds, $14, 500, on his wife's medical bills. Burrow admitted that on October 14, 2015, he sent a letter through his attorney to Tubbs stating that all vehicles listed in the writ of execution, including the El Camino and the Fairlane, were encumbered by liens. Burrow also admitted that two days later he caused his attorney to send a second letter in which he claimed that all the vehicles listed in the writ (except the Cadillac, on which he stated that he owed $9, 000) had been sold before the writ issued. Both of these letters were inaccurate, and Burrow explained that he had mistakenly given his attorney "misinformation." Specifically, Burrow testified that "not all the liens were at the banks, " and he actually did not owe money on the El Camino, the Fairlane, or the 1970 pickup truck.

         In his deposition, Burrow was shown photographs taken on January 12, 2016, of both the El Camino and the Fairlane located in a shop in Wynne owned by a man named Nub Ramsey. Burrow admitted that he knew Ramsey; however, he denied knowing where Ramsey's shop was located, and he could not explain why his cars had been in Ramsey's shop. Burrow was shown more photographs taken on January 12, 2016, this time of his vehicles parked at 4208 Sydney Cove, #38, and 2210 Conrad Drive in Jonesboro. The latter of the two addresses is the home of Burrow's brother Bobby at the Kenwood Pointe apartment complex. Burrow again denied knowledge or ownership of the vehicles, and he denied knowing where his brother lived, though he admitted that he talked to his brother several times a week. Burrow stated that he had spoken to his brother the morning of the deposition but that Bobby had not mentioned the two cars during their conversation. Burrow supposed that he would have to ask his brother about the matter.

         Burrow was also presented with registration and lien-report summaries obtained from the Arkansas Department of Motor Vehicles showing him as the registered owner of the El Camino, the Fairlane, the 2007 Mustang, and the 2012 Cadillac. Burrow could not explain why he was still listed as the owner on the title.

         At the hearing, there was extensive testimony from Tubbs, Lieutenant Wheaton, and private investigator Mauri Cole regarding the events leading up to Burrow's payment of the writ on January 20, 2016. Tubbs testified that on January 12, 2016, he received a phone call from Nub Ramsey, who reported that he was storing a 1964 Fairlane and a 1972 Chevrolet El Camino in his shop in Wynne. Ramsey told Tubbs that he had been informed that the owner was hiding the vehicles to avoid a court judgment, and when he realized this he called Tubbs to inform him of the location of the vehicles. Tubbs explained that after he had talked to Ramsey, he hired private investigator Mauri Cole to photograph the vehicles at Ramsey's shop, which Cole did. Tubbs testified that after observing the cars for about an hour, the El Camino and the Fairlane were driven away, and Cole followed the cars to Jonesboro. The driver of the El Camino parked the car in the parking lot of Bobby Burrow's apartment located at 2210 Conrad Drive, and the Fairlane was parked a couple of miles away at 4208 Sydney Cove, #38. Tubbs stated that Cole photographed the parked cars, and while he was there Cole ran the Vehicle ...


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