                                Cite as 2017 Ark. App. 116


                  ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No.CV-16-564
                                  Opinion Delivered: March 1, 2017
GRANT COUNTY UNIFIED
COMMUNITY RESOURCE COUNCIL,
INC. D/B/A SPIRIT OF SHARING      APPEAL FROM THE GRANT
AND/OR KEEPING THE FAITH          COUNTY CIRCUIT COURT
                        APPELLANT [NO. 27CV-13-20-1]

V.
                                                 HONORABLE CHRIS E WILLIAMS,
MARY PENNINGTON                                  JUDGE
                                  APPELLEE
                                                 REVERSED AND REMANDED


                                BART F. VIRDEN, Judge

        Grant County Unified Community Resource Council (hereinafter “the shelter”)

 appeals the order of the Grant County Circuit Court awarding summary judgment to Mary

 Pennington. The crux of this case is whether there was an express or implied agreement

 between the shelter and Pennington concerning the exclusion of bona fide meal and sleep

 hours from the computation of the hours she worked. We hold that the circuit court

 incorrectly awarded summary judgment because there are material facts in dispute

 concerning the existence of an agreement between the parties. Accordingly, we reverse and

 remand for a trial.

                                        I. Factual History

        On February 25, 2013, Pennington filed a complaint alleging that the shelter violated

 the overtime provisions of the Arkansas Minimum Wage Act (AMWA) by requiring her to

 work in excess of 40 hours per week but failing to pay her for the overtime hours. In her

 complaint, Pennington stated that she began working as an “advocate” at the shelter in
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February 2010 and that she was paid an hourly rate to complete intake forms, help new

residents, do light cleaning, and answer the phone. Pennington asserted that her supervisor

at the shelter controlled her work schedule and that her paycheck reflected that she worked

80 hours over a 2-week period. Pennington argued that during the 3 years she had worked

at the shelter, she actually worked 96 and 128 hours in alternating 2-week periods. In her

complaint, Pennington sought declaratory judgment, monetary damages, liquidated

damages, prejudgment interest, civil penalties, and costs including attorney’s fees.

       On April 10, 2013, the shelter filed an answer to Pennington’s complaint. The shelter

responded that, under the AMWA, the hours for which Pennington sought compensation

were not compensable. The shelter argued that the statute of limitations on her claim had

run, that Pennington had failed to mitigate her damages, and that she had consented to the

conduct. The shelter also asserted estoppel, unclean hands, release, waiver, laches,

indemnification and “any other defenses or affirmative defenses contained in Ark. R. Civ.

P. 8(c) and 12(h).” The shelter explained that “[p]laintiff agreed, either expressly or

impliedly, to exclude bona fide meal and regularly scheduled sleeping periods, was provided

adequate sleeping facilities, and thus, the hours alleged to have been work time, are excluded

from compensation under the AMWA.”

       On April 13, 2015, Pennington filed a motion for summary judgment. She argued

that she was owed $60,452.88 by the shelter because she was “engaged to wait” and thus,

should have been compensated for all the hours she was scheduled to be at work, including

time spent sleeping or eating. Pennington argued that, in her capacity as an advocate, she

was required to be on call “24/7” to answer the crisis hotline. Pennington asserted that she


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was scheduled to work continuous day-and-night shifts that alternated weekly between 48-

hour-shifts and 64-hour shifts, but she was never paid for working more than 40 hours.

       In her deposition, Pennington stated that she had been hired to work for the shelter

in February 2010. She testified that she had spoken with her supervisor, Diana Riley, who

explained to her that she would be answering the phone, taking care of the women residing

in the shelter, and keeping her area tidy. Pennington stated that Riley told her that her shift

would begin on Wednesdays at 8:00 a.m. and end on Friday afternoons at 4:00. Pennington

testified that Riley also told her that she would be paid for working 40 hours. Pennington

stated that when she worked the overnight shifts, she was provided with a place to sleep but

that she “slept with one eye open” and that she was expected to wake up and answer all

phone calls at any time of the day or night. Pennington testified that she had insomnia, and

took half an Ambien to try to get some sleep during her overnight shifts. Pennington

explained that in addition to calls to the hotline, she occasionally received telemarketer calls

and personal calls for residents of the shelter, though generally not after 11:00 p.m.

Pennington testified that she was not allowed to leave the premises or “do everything [she]

wanted” during her shift.

       In her deposition, Riley was questioned about the eight-hour sleep-time deduction:

   COUNSEL: It was the policy of the GCUC prior to the filing of this lawsuit that no
   advocates were paid—that all advocates received an eight-hour sleep time deduction for
   overnight shifts, correct?

   RILEY: Correct.

   ....




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   COUNSEL: You told us a little while ago that when you hired Ms. Pennington, you told
   her, these are your shifts, you won’t be paid for eight hours each night which will be
   designated as sleep time, right?

   RILEY: Yes.
   ....
   COUNSEL: And there was not a written agreement but sort of an implied agreement that
   they—that each advocate would not be paid for this eight hours per night, correct?

   RILEY: Yes.
   ....
   COUNSEL: And I think you testified earlier that you believed that Ms. Pennington
   understood that she would not be paid for a period of eight hours for any overnight
   shift, correct?

   RILEY: Yes.

      However, Pennington described the payment policy conversation differently. When

Pennington was asked what Riley told her concerning her shift, she answered:

   PENNINGTON: I would come in Wednesday at 8:00 in the morning on Wednesday, and
   I would get off Friday at 4:00.

   COUNSEL: Did you have any objection to that?

   PENNINGTON: No.

   ....

   COUNSEL: Did you understand that at the time that you went to work for GCUC that
   GCUC was not agreeing to pay you for eight hours of time that you were going to be
   able to sleep?

   PENNINGTON: No.

      The shelter responded to Pennington’s motion for summary judgment. It asserted

that though Pennington was scheduled for two 24-hour shifts and three 24-hour shifts, she

had agreed that eight hours per each 24-hour period would be excluded as “sleep time.”

The shelter also asserted that, as per an express agreement, there were “bona fide meal


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periods” during which time Pennington was relieved of all duties. The shelter also argued

that there was an implied agreement that sleep and meal times were to be excluded from

Pennington’s compensable time based on her acceptance of paychecks which reflected 40-

hour-week compensation for several years. Thus, the shelter argued, there existed an express

or implied agreement between the parties to exclude sleep and meal times, and Pennington

had not worked overtime for which she had not been paid.

       The shelter also argued that Pennington offered “companionship services” and that

this type of work was excluded from minimum-wage and overtime-pay provisions. The

shelter attached Riley’s deposition in which she stated that the crisis hotline was operational

“24/7” and that Pennington had been hired, in part, to answer the hotline. The shelter cited

Riley’s deposition in which she had stated that Pennington understood that 8 hours of her

overnight shift were considered “sleep time,” that she would not be paid for those hours,

and that this agreement was verbal and had never been reduced to writing.

       The shelter filed a cross-motion for summary judgment. In its motion, the shelter

argued that (1) there is an exception to overtime pay for employees who work 24-hour

shifts and receive bona fide sleeping and meal periods, (2) Pennington expressly and

impliedly agreed to her hours and payment terms, and (3) if Pennington falls under the

“homeworker exception,” her express and implied agreement to exclude sleeping and meal

periods still bars her recovery of overtime wages.

       At the hearing Pennington argued that there had been no agreement that sleep and

meal times would be excluded from her paycheck. The shelter responded that Pennington

had agreed to the reduction of her hours for sleep time, that she in fact was able to sleep,


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and that few calls came in after 10:00 p.m. The shelter explained that it had overpaid

Pennington for the hours slept in the interest of retaining an employee and that Pennington

had agreed to “waiting to be engaged” rather than being “engaged to wait.”

       After taking the matter into consideration, the circuit court granted summary

judgment in favor of Pennington. In the order, the circuit court stated that it was making

“the following findings of fact.” It found that there was no written contract between the

parties and “no proof of a working agreement other than some verbal statements made

between the employee and the employer.” The circuit court found that Pennington was

“not capable of exercising her own time as she may desire.” The circuit court also found

that there was no express or implied agreement between the parties to exclude sleeping

hours and that Pennington’s sleep periods were therefore compensable. The circuit court

also found that there was no proof of the companionship exception asserted by the shelter.

The circuit court stated that the fact that Pennington accepted her paycheck was not “a

relevant issue of an implied agreement[.]” The circuit court found that Pennington was “on

call” because she could not use the time as her own. The court denied the shelter’s cross-

motion for summary judgment. The court deferred on the issue of damages and later filed

a separate order on that issue.

       The shelter filed a timely notice of appeal.

                                      II. Summary Judgment

       Summary judgment is to be granted by the circuit court only when there are no

genuine issues of material fact to be litigated, and the moving party is entitled to judgment

as a matter of law. Killian v. Gibson, 2012 Ark. App. 299, at 6, 423 S.W.3d 98, 101. In


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reviewing a grant of summary judgment, an appellate court determines if summary judgment

was appropriate based on whether the evidentiary items presented by the moving party in

support of the motion left a material question of fact unanswered. Id. This court views the

evidence in the light most favorable to the party against whom the motion for summary

judgment was filed and resolves all doubts and inferences against the moving party. Id.

       Even when parties file cross-motions for summary judgment, the proceeding is not

converted into a bench trial; rather, the circuit court’s ruling must still be one of law. Po-

Boy Land Co. v. Mullins, 2011 Ark. App. 381, at 7–8, 384 S.W.3d 555, 560. If material

issues of fact remain to be decided, the circuit court may deny cross-motions for summary

judgment. Acuff v. Bumgarner, 2009 Ark. App. 854, 371 S.W.3d 709. Where it is impossible

to determine on appeal that either party is entitled to judgment as a matter of law, summary

judgment should be reversed, even if the parties have filed cross-motions for summary

judgment. Deltic Timber Corp. v. Newland, 2010 Ark. App. 276, 374 S.W.3d 261.

       In the present case, the circuit court erred in awarding summary judgment because

certain material facts concerning the existence of an agreement between Pennington and

the shelter were disputed. In Vang Lee v. Mansour, 104 Ark. App. 91, 96, 289 S.W.3d 170,

174 (2008), our court reversed and remanded the case because the circuit court improperly

weighed the facts and made findings:

   The summary judgment was also improper because it “found facts.” This is not the
   purpose of summary judgment, which is to determine if there are issues of fact to be
   tried. The summary judgment order specifically stated that the trial court “makes the
   following findings of fact” including that appellee did not mislead the trial court in asking
   to withdraw and that appellee complied in all relevant ways with Rule 64. These were
   not agreed or stipulated facts, but were instead directly conflicted by appellant through
   affidavit and allegation.


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(Internal citations omitted.)

       In the present case, the circuit court made similar findings of fact, explicitly stating

that it weighed the conflicting testimony:

           The Court, in reviewing the motions and briefs along with the exhibits that are
       attached thereto, including the depositions of the parties for both the Plaintiff and
       the Defendant makes the following findings of fact.

           There is no written contract between the parties. In balancing all of the testimony,
       there’s no proof of a working agreement other than some verbal statements made between the
       employee and the employer. The employee services and relations with the employer was
       in a status of being at the premises and therefore, not capable of exercising her own
       time as she may desire. Since there is no expressed or implied agreement, that the Court
       can find from the totality of the circumstances of the depositions and other matters
       before the Court, the sleeping times and lunch period times constitute working
       hours. An implied agreement to exclude sleeping and/or lunch times must be an
       actual meeting of the minds” between the parties. See K. C. Props. v. Lowell Inv.
       Partners, 373 Ark. 14 (2008).

           The Court finds the agreement to exclude time for meals and/or sleeping is not
       valid. Employee is engaged in working for the employer and was required to answer
       the phone, and continue daily duties even though there would be a possible sleep
       period that was available to her during the hours of work. Those sleep periods are
       compensable while she was acting in the service of the employer and operating the
       crisis hotline phone 24/7 based upon the testimony.

(Emphasis added.)

       As in Vang Lee, the facts set forth in the depositions of both Pennington and Riley

directly conflict as to whether Pennington had agreed to exclude sleep time from the

computation of her paycheck or if she had agreed to a cap on her wages. The circuit court

weighed this evidence and found that there was no agreement, either implied or express,

and that there was no “meeting of the minds” necessary for an express agreement to form.




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       The circuit court erred in awarding summary judgment because material facts were

in dispute. Because of the conflicting testimony it is impossible to discern that either party

is entitled to a judgment as a matter of law, and a trial is in order.

       Reversed and remanded.

       VAUGHT and HIXSON, JJ., agree.

       Rainwater, Holt & Sexton, P.A., by: Denise Reid Hoggard, for appellant.

       Sanford Law Firm, PLLC, by: Josh Sanford and Joshua West, for appellee.




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