APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CV-13-315]
HONORABLE TED CAPEHEART, JUDGE
Garnet
E. Norwood; and The Bullock Law Firm, by: William G. Bullock,
Sr., for appellant.
Miller, James, Miller & Hornsby, LLP, by: Troy Hornsby,
for appellee.
BART
F. VIRDEN, JUDGE
Appellant
Joel Friday filed a complaint against his brother, appellee
Randy Friday, to recover guns and ammunition, as well as a
large gun safe, that he had entrusted to Randy. The Miller
County Circuit Court ruled partially in Joel's favor and
awarded him, among other things, the guns located at
Randy's home. Joel argues that the trial court erred in
not awarding him a judgment for the value of twenty-nine guns
worth $24, 050 that were missing from Randy's home. We
affirm.
I.
Bench Trial
The
following is a summary of the testimony presented at trial.
In 1985, Joel started and was active in operating a business
in Texarkana called Bucks & Ducks Sporting Goods. Joel
ran into some legal trouble in 2012 and was no longer allowed
to possess any guns or ammunition. Joel and Randy disagreed
on whose idea it was to store the guns and ammunition from
the business at Randy's home. Nevertheless, Joel and some
friends took approximately ten pickup-truck loads of guns and
ammunition to Randy's home. Joel said that he did not ask
Randy to sign a receipt at the time of the transfer because
they are brothers. According to Joel, the agreement was that
Randy would hold Joel's guns, ammunition, accessories,
and components, along with the gun safe, until Joel's
probation expired. In the two-year span of time that Randy
had the guns and ammunition, the brothers had a falling out.
In 2014, Joel was taken off probation, and his record was
later expunged. Joel then asked Randy for his guns and
ammunition back, but Randy refused to return them.
Randy
denied disposing of any of Joel's guns or ammunition;
however, Joel had two friends who testified that they had
either helped load the guns and ammunition from the business
location or helped deliver them to Randy's home. Both men
stated that Joel had a full inventory at Bucks & Ducks in
2012, including approximately one hundred guns. Joel
testified that in January 2013 he saw another friend, who had
also assisted with the delivery, driving down the county road
on which Randy lived with a load of ammunition. Joel also
stated that in 2015, he hired a private investigator who
bought ammunition from Randy and reported that Randy had
tried to sell him a rifle.
Randy
said that no inventory had been done when the guns and
ammunition were delivered to his home; however, an inventory
had been done after Joel filed the lawsuit. That inventory,
along with photos of the guns and ammunition, was introduced
at trial as defendant's exhibit No. 1. This exhibit
included an informational page stating that the parties'
lawyers had agreed to hire a nonbiased party to conduct the
inventory. One page of the exhibit contained a typed list of
nineteen guns, four gun cases, and one rifle scope with an
explanation at the bottom: "This was the total of all
the firearms in the house."
Joel
testified that, when the goods were delivered to Randy's
home, he already had an inventory of his guns and ammunition
from the store. He stated that he could determine the balance
of the missing guns because he had records and referred to
"receiving and disposition books." Joel introduced
plaintiff's exhibit No. 4, which consisted of a
handwritten list of guns on three plain sheets of paper
entitled "3 Pages Corrected Complete List of Guns"
and "Joel Friday List of Values of Guns." The list
purported to describe each gun, including the manufacturer,
the model, the serial number, the type of action, the gauge
or caliber, and an estimated value. There were approximately
forty-six guns on the list. Along with the list of guns and
ammunition were photos taken by Joel depicting empty shelves
where the guns and ammunition had been stored at Bucks &
Ducks before they were taken to Randy's home.
In a
written order, the trial court found "that Joel is
entitled to the return of all his guns and ammo as depicted
on Exhibit Def #1, along with his gun safe" but found
that there was insufficient evidence to determine how many
guns were missing from Randy's home. Joel timely appealed
from this order.
II.
Standard of Review
In
civil bench trials, the standard of review on appeal is
whether the trial court's findings were clearly erroneous
or clearly against a preponderance of the evidence. City
ofTontitown v. First Sec. Bank, 2017 Ark.App.
333, 522 S.W.3d 834. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing
court, on the entire evidence, is left with a firm conviction
that a mistake has been ...