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James Tree & Crane Service, Inc. v. Fought

Court of Appeals of Arkansas, Divisions II, III

June 8, 2016

JAMES TREE AND CRANE SERVICE, INC., AND ROGERS WILLIAMS APPELLANTS
v.
TERRI FOUGHT APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO. CV-08-10413] HONORABLE ALICE S. GRAY, JUDGE

          Watts, Donovan & Tilley, P.A., by: Michael McCarty Harrison and Jim W. Tilley, for appellants.

          Chaney Law Firm, P.A., by: Don P. Chaney, Nathan P. Chaney, and S. Taylor Chaney; and Moffitt & Phillips, PLLC, by: Brandon Moffitt, for appellee.

          KENNETH S. HIXSON, Judge

         In this motor-vehicle-accident personal-injury case, James Tree and Crane Service, Inc. and its former employee, Rogers Williams, (hereinafter referred to collectively as "James Tree") appeal from the order of the Pulaski County Circuit Court granting appellee Terri Fought a new trial after a jury had found in favor of James Tree and awarded Fought no damages. On appeal, James Tree argues that the circuit court abused its discretion in awarding a new trial. We agree, and we reverse the order granting a new trial and reinstate the judgment entered on the jury's verdict.

         On June 26, 2007, Fought was stopped at a stoplight when the Toyota Prius vehicle she was operating was struck from the rear by a 1984 Mack dump truck operated by Rogers Williams and owned by James Tree. Williams left the scene. The impact caused what was described as a fist-sized dent, a quarter-inch deep on the rear of the Prius. Fought did not immediately complain of any injuries, but, on the following day, she was treated by a chiropractor for injuries that she claimed had been caused by the accident. This treatment regimen continued over a six-year period.

         Fought filed suit against James Tree and "John Doe" on September 22, 2008, alleging negligence on the part of the driver of the truck and respondeat superior liability against James Tree. In Fought's fourth amended complaint, Fought sought damages for permanent bodily injuries, mental anguish, loss of earning capacity, pain and suffering, and past and future medical expenses.[1] Fought's pleadings ultimately substituted Rogers Williams for "John Doe" and asserted a cause of action for "civil action by a crime victim, " based on Williams leaving the scene of the accident. James Tree denied that Fought's alleged damages were proximately caused by the motor-vehicle accident.

         A jury trial was held over seven days in September 2013. The case was submitted to the jury on interrogatories. The jury found that Fought sustained no damages that were proximately caused by the negligence of James Tree. The jury also found that Fought sustained no damages as a result of Rogers Williams leaving the scene of the accident. The jury also answered two other interrogatories awarding Fought $0 damages for each claim. Judgment was entered on the jury's verdict on October 24, 2013.

         Fought timely filed a motion for new trial asserting four grounds. She argued that the jury's verdict was contrary to the evidence under Ark. R. Civ. P. 59(a)(6); that the jury erred in assessing zero damages under Ark. R. Civ. P. 59(a)(5); and that she was denied a fair trial because of the prejudicial misconduct of James Tree's attorneys under Ark. R. Civ. P. 59(a)(1) and (a)(2). The circuit court entered its order granting the motion on the last day prior to the motion being deemed denied. The order, as is allowed by the Arkansas Rules of Civil Procedure, did not include any explanation, reasoning, or indication of which of the four grounds upon which the court relied. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).

         The threshold for reversing a grant of a new trial is the circuit court's having committed a "manifest abuse of discretion, " meaning discretion improvidently exercised or exercised thoughtlessly and without due consideration. Razorback Cab v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id. However, the circuit court is not to substitute its view of the evidence for that of the jury. Id.; Eisner v. Fields, 67 Ark.App. 238, 998 S.W.2d 421 (1999). Our court must affirm if any of the alleged grounds in the motion would sustain the grant of the order. See Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996).

         Since the circuit court did not provide its reasoning for granting a new trial, we must analyze all four grounds contended by Fought in her motion. We begin with the discussion of Fought's grounds under Rule 59(a)(1) and (a)(2). They are generally the same allegations and relate to the conduct of one of James Tree's attorneys, Jim Tilley. The alleged improper conduct included several comments Tilley made within the jury's hearing, starting with opening statements. For example, Tilley said, "game on" during Fought's opening statement after the court overruled Tilley's objection that opposing counsel was engaging in character assassination of one of James Tree's expert witnesses. The court also admonished defense counsel for yawning and making facial gestures indicating that counsel was bored while one of Fought's witnesses was testifying.

         Tilley was also charged with contempt arising out of two additional incidents. The first incident relates to photographs depicting the damage to Fought's Prius after the accident, i.e., the "fist-sized, quarter-inch deep dent." Apparently fourteen photographs were taken by James Tree's representatives.[2] For some reason that is not clear from the record, only four of the fourteen photographs were shared with Fought during discovery. At trial, James Tree attempted to introduce some or all of the ten photographs not shared with Fought, and her attorney objected. The court ultimately ruled that all fourteen of the photographs depicting the damage to Fought's Prius were inadmissible. After counsel for James Tree had been warned by the circuit court not to pick up the photographs or use them for any purpose, Tilley carried the inadmissible photographs toward the witness stand, allegedly in clear view of the jury so that the jury could see the "fist-sized" dent. At a subsequent hearing outside the presence of the jury, Tilley denied the court's allegations that he was "parading around the courtroom" with the photographs. After hearing arguments presented by the attorneys, the court found Tilley in contempt and fined him $800.

         The second contemptuous incident occurred during closing argument when Tilley made the statement that "Mr. Williams [the truck driver] is not here today because. . . ." which drew an objection from Fought. The circuit judge instructed Tilley not to mention Williams. Following the court's admonition, Tilley continued with his closing argument and told the jury: "Mr. Williams is not here today because I told him he did not have to be here." Again, out of the presence of the jury, the circuit court held Tilley in contempt for disobeying the court's instruction, fining him $1, 000 for this incident.

         Arkansas Rule of Civil Procedure 59(a) provides that a new trial may be granted (1) for any irregularity in the proceedings which prevented a party from having a fair trial or (2) for misconduct of the prevailing party. James Tree contends that the alleged misconduct of its counsel did not constitute an irregularity or misconduct to such an extent to justify the granting of a new trial. Our supreme court has held that the misconduct of the prevailing party includes the misconduct of the prevailing party's attorney. Suen v. Greene, 329 Ark. 455, 462, 947 S.W.2d 791, 795 (1997); Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). The question becomes whether this conduct by James Tree's counsel constituted "misconduct" or an "irregularity in the proceeding" within the meaning of Rule 59(a)(1) or (2). We hold it was not. In Suen, our supreme court reversed the grant of a new trial, stating:

[C]ounsel for the plaintiff and defendant were vigorously and professionally advocating the interests of their clients. The circuit court maintained firm control over the proceedings and we are unable to find any reasonable possibility of prejudice against the appellee's right to a fair trial resulting from the actions of the appellant's attorney. Absent any showing that counsel's conduct prevented appellee from having a fair trial, the court's action in ordering a new trial for that reason was a manifest abuse of discretion.

329 Ark. at 462, 947 S.W.2d at 795. While we do not condone the conduct of James Tree's counsel, we believe that the circuit court here maintained firm control over the proceedings as evidenced by the admonishments to counsel and the entry of contempt orders, and there is no evidence that counsel's conduct prevented Fought from receiving a fair trial. If the circuit court relied upon these two subsections of Rule 59(a) to grant the new trial, we are persuaded that Suen compels us to hold that the circuit court manifestly abused its discretion and reverse the granting of a new trial based on Rule 59(a)(1) or (2).[3]

         We now turn to whether the circuit court abused its discretion in awarding a new trial based on Ark. R. Civ. P. 59(a)(6), which requires that the jury's verdict be contrary to the evidence; or under Ark. R. Civ. P. 59(a)(5), which requires that the jury erred in assessing zero damages. These two contentions are closely related and are discussed together. James Tree admitted liability, but the mere fact that a plaintiff has incurred medical expenses and the defendant has admitted liability does not automatically translate into a damages award equivalent to those expenses. See Depew v. Jackson, 330 Ark. 733, 740, 957 S.W.2d 177, 181 (1997); Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991); James v. Bill C. Harris Constr. Co., Inc., 297 Ark. 435, 763 S.W.2d 640 (1989). The jury is the sole judge of the credibility of the witnesses and of the weight and value of the evidence, and it may believe or disbelieve the testimony of one or all of the plaintiff's witnesses, even though the evidence is uncontradicted and unimpeached. Potlatch Corp. v. ...


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