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Jarrett v. Brand

Court of Appeals of Arkansas, Division III

May 3, 2017

NATHAN J. JARRETT AND KEY ENERGY SERVICES, LLC APPELLANTS
v.
ANDREW J. BRAND APPELLEE

         APPEAL FROM THE PERRY COUNTY CIRCUIT COURT [NO. CV-2011-52] HONORABLE MACKIE M. PIERCE, JUDGE

          Friday, Eldredge & Clark, LLP, by: Christopher Heller and Robert S. Shafer, for appellants.

          Branscum Law Offices, by: Herby Branscum, Jr., and Elizabeth Branscum Burgess, for appellee.

          PHILLIP T. WHITEAKER, Judge

         This appeal stems from a personal-injury case. Appellee Andrew Brand sued appellants Nathan J. Jarrett and his employer, Key Energy Services, LLC, for injuries and damages resulting from a motor-vehicle accident. A Perry County jury returned a verdict for Brand, awarding damages of $750, 000. On appeal, Jarrett and Key argue that the circuit court erred in admitting evidence of Brand's alleged losses in bankruptcy as consequential damages. We affirm.

         The facts of this case are not complicated, and in order to understand the argument on appeal, we will review them briefly, along with the pretrial and trial procedures. Jarrett, acting as an employee of Key, ran a red light in Morrilton and struck the side of Brand's vehicle, causing injury to Brand and damage to Brand's truck. Brand filed a complaint against Jarrett and Key. Jarrett and Key initially denied any fault but eventually admitted liability.

         The matter proceeded to a jury trial on damages. Prior to trial, the circuit court entered a scheduling order directing that any motions in limine should be filed fifteen days prior to trial. Less than fifteen days before the scheduled trial date, Jarrett and Key (hereinafter collectively "Jarrett") filed a ten-page "motion in limine." This motion sought to exclude numerous items, such as "any reference to any pretrial motions filed by Defendants and the result of any hearing thereon" and "requesting Defendant's counsel to produce any information or documents in her file in front of the jury." The motion did not specifically address or mention nor seek to limit evidence of Brand's alleged losses in bankruptcy as consequential damages. On September 15, 2015, however, Jarrett filed an amended answer adding an additional affirmative defense, stating as follows:

Pleading further and in the alternative, . . . Defendant would show that Plaintiff is judicially estopped from asserting and/or recovering more than the maximum value stated in his bankruptcy pleadings in cause 4:12-bk-10522 in the United States Bankruptcy Court for the Eastern District of Arkansas, under which Plaintiff was discharged in bankruptcy.

         Prior to the trial on September 17, 2015, the court held a pretrial hearing, at which it was asked to consider the matter of Brand's bankruptcy and request for damages. Jarrett made the following statement:

Okay. And then one other thing, Your Honor. [Brand's counsel] has-has amended his pleadings and-and made some claims for damages related to bankruptcy that Mr. Brand filed after the date of this accident.[1] I don't believe that there's-there's an element of damages for, you know, losing property and-and bankruptcy. Certainly, not in a personal injury matter and-and I'm-I'm not sure it would be appropriate to even introduce evidence of the bankruptcy or any of the damages that he alleges were related to that.

         Brand replied that "the bankruptcy flowed from the injury that was caused from the accident, causing Mr. Brand to file bankruptcy. And by virtue thereof, the Trustee took his equipment. And any equity he lost, we have pled that as being a loss to him. And I think that's definitely an economic loss." The court took the matter under advisement. After the jury was seated, the court denied Jarrett's request, concluding that the question of whether the bankruptcy filing flowed from the automobile accident was a question of proximate cause for the jury as triers of fact.

         The matter proceeded to trial. Brand called two witnesses. Neither witness testified about his bankruptcy; rather, they spoke only about his injuries and medical treatment. After those witnesses concluded their testimony, the court called for a lunch break. During that break, the court and counsel addressed the jury instructions. The parties agreed without objection that AMI 501, defining "proximate cause, " would need to be given. The court asked about AMI 2201, the "general damages" instruction. Counsel for Jarrett replied, "Yeah, I'm good with the instruction in general. I know we'll make objections later. I have just an objection on the record to one of the damage elements." No further objection was ever made, however, either at that point or when the jury was later instructed. The court and counsel then discussed verdict forms. The court noted that no one had submitted an interrogatory or asked for specific elements; there was just a general verdict form. Jarrett's counsel replied, "Okay."

         After the parties had settled on the jury instructions and the jury returned from its lunch break, the trial resumed with the testimony of Brand's wife, Vinetta. She testified concerning Brand's injuries, his limitations, and his damages. Vinetta testified that the total amount of the charges for Brand's medical treatment was $106, 415.99.

         Vinetta subsequently testified that, as a result of the accident, Brand could no longer work at his logging job. She said that they had reached a point where they could not pay their bills, and they agreed to file for bankruptcy and did so in January 2012. She explained that, as part of the bankruptcy, they lost two rental properties (a mobile home and a wood-frame home on two parcels of real estate), rental income of $800 a month, and their logging equipment. After deducting the debt owed on the property, Vinetta stated that she and her husband lost $99, 300 in equity on the property because of the bankruptcy. ...


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