JAMES TREE AND CRANE SERVICE, INC., AND ROGERS WILLIAMS APPELLANTS
TERRI FOUGHT APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
CV-08-10413] HONORABLE ALICE S. GRAY, JUDGE
Donovan & Tilley, P.A., by: Michael McCarty Harrison and
Jim W. Tilley, for appellants.
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
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.
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
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. 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.
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.
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).
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).
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.
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. 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
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.
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
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).
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. ...