                               Cite as 2016 Ark. App. 320

                ARKANSAS COURT OF APPEALS
                                   DIVISIONS II & III
                                    No. CV-14-585



                                                  Opinion Delivered   JUNE 8, 2016

 JAMES TREE AND CRANE SERVICE, APPEAL FROM THE PULASKI
 INC., AND ROGERS WILLIAMS      COUNTY CIRCUIT COURT,
                    APPELLANTS TWELFTH DIVISION
                                [NO. CV-08-10413]
 V.
                                HONORABLE ALICE S. GRAY,
                                JUDGE
 TERRI FOUGHT
                       APPELLEE REVERSED


                           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
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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


1
    Fought did not include in her complaint a claim for property damage to her vehicle.
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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

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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. . . .”



2
 There was a dispute as to the exact number of photographs, but the number is immaterial
for purposes of this appeal.
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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

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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. Mo. Pac. R.R. Co., 321

Ark. 214, 902 S.W.2d 217 (1995). The burden remains on the plaintiff to prove that any




3
  Furthermore, allegations of misconduct pursuant to subsection (a)(2) are required to be
accompanied by an affidavit outlining the allegations and the prejudice. Ark. R. Civ. P.
59(c). Here, Fought did not attach such an affidavit.

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damages sustained were proximately caused by the negligence of the defendant even where

the defendant admits liability. Dundee v. Horton, 2015 Ark. App. 690, 477 S.W.3d 558.

      Here, the record reveals that Fought had preexisting medical issues and stressors in

her life. Her history included prior medical complaints, stress from work and from caring

for an autistic child, a cervical spine with degenerative changes, headaches, and depression.

She had been prescribed antidepressants just prior to the accident. During seven days of trial,

the jury heard multiple competing expert opinions on the physics and force of the collision,

the state of Fought’s preexisting and postaccident medical condition(s), and whether her

alleged injuries and ensuing treatments were proximately caused by the accident. Virtually

all of Fought’s evidence was countered by competing evidence by James Tree. As in Kratzke,

the jury apparently determined that Fought did not sustain her burden of proof, as shown

in its unanimous verdict wherein it found that Fought did not sustain any proximately-

caused damages.

       In granting a motion for new trial, a circuit court cannot simply substitute its opinion

for the jury verdict unless the verdict is clearly against the preponderance of the evidence.

Young, 324 Ark. at 124, 919 S.W.2d at 218. Here, Fought sought $850,000 in compensatory

damages from a motor-vehicle accident involving a dump truck and a Toyota Prius that

caused a fist-sized dent, a quarter inch in depth. It was within the jury’s province to assess

the damages proximately caused by the negligence of the defendant. In sum, the circuit

court erred in finding that the verdict was clearly against the preponderance of the evidence.

We are of the opinion that the circuit court substituted its view of the evidence in lieu of

the jury’s, which it may not do, and a manifest abuse of discretion resulted.

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       Before closing, there is one other issue we need to address—whether the new trial

could be justified by the counsel for James Tree allegedly conceding some damages in his

closing argument. Fought argues that during closing argument James Tree’s attorney invited

the jury to award “some damages.” And that this invitation was equivalent to a concession

by James Tree that Fought sustained compensable damages to such an extent that the jury

erred in assessing zero damages. We disagree.

       During closing arguments, defense counsel argued to the jury as follows:

              Let’s get down to talking about the car wreck. Answer to Interrogatory
       Number 1, “Did she have an injury as the result of the car wreck?” You bet. Would
       I say that she didn’t? No. I wouldn’t tell you that. But when you come to that
       question, and you think about what you’ve heard in this case, and you think where
       we are six and a half years later, tap yourself behind your right ear. Come back around
       to what you’ve heard. A fist-sized dent a quarter-inch deep, and they’ve got her
       believing—and we asked her about it; we saw it—they’ve got her believing it.

After discussing the reasonableness of Fought seeking treatment from a chiropractor instead

of a medical doctor, counsel returned to the issue of how the jury should answer

Interrogatory Number 1:

              I ask you to answer Interrogatory Number 1 yes. I ask for you to look at those
       medical bills for that six to eight weeks. Or even, Ladies and Gentlemen, if you think
       that maximum medical improvement as described by Dr. Bennett [Fought’s
       chiropractor] wasn’t until June of 2009—or ‘08, excuse me—2008, then so be it.

      This is simply an argument, the import of which is—“if you are going to give her

something, give her a few weeks of chiropractor bills, not $850,000.” This is not a

concession of damages. A circuit court may consider concessions made in opening

statements or closing arguments in deciding whether to grant a new trial. See generally

Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004); accord Bruce v. Hancock, 2010



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Ark. App. 171, 374 S.W.3d 138. In those cases, however, there were clear statements by

defense counsel accepting responsibility for medical expenses.

      In Machost, defense counsel said in opening statements:

            We don’t dispute . . . that [we] should be, even though it’s a shame physical
      therapy is so expensive but they provide a valuable service, and we don’t dispute that
      we’re responsible for, for her medical bills. What we are arguing about here really is
      the degree of pain and suffering that Mrs. Machost claims to have.

86 Ark. App. at 51, 158 S.W.3d at 728. Then, during closing argument, defense counsel

stated that the plaintiff’s medical expenses were reasonable and asked the jury to award

Machost $10,000, stating: “The expense of the CAT scan, which was negative, and the

medical bills which this lady incurred, you know, [the defendant] unfortunately

acknowledges that he’s responsible for that.” Clearly, the defense attorney therein

acknowledged and accepted responsibility for medical expenses, and the client was saddled

with that responsibility. The same is not true here.

       Bruce cites Machost as authority. In Bruce, after a motor-vehicle accident, the plaintiffs

were transported to the local emergency room, were examined, and were released. The

defendant’s attorney admitted in closing argument that the plaintiffs were entitled to

damages for the costs associated with the trip to the emergency room. The jury returned a

zero verdict. The circuit court granted a new trial. On appeal, the defendant contended the

plaintiff did not meet her burden of proving damages. Our court disagreed:

       However, appellees did not fail to meet that burden of proving damages, even if only
       a modest amount. If nothing else, their trip to the emergency room immediately
       following the accident was worthy of recompense by the responsible party or parties
       in this case. Moreover, appellees’ entitlement to some damages appeared to be a given
       considering appellants’ virtual concession in opening statements and closing arguments
       that appellees incurred some damages in the accident. Bruce’s counsel even went so
       far as to tell jurors that it was not necessary for them to deliberate the established fact
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       of appellees’ injuries. A circuit court may consider concessions made in opening
       statements or closing arguments in deciding whether to grant a new trial. See generally
       Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004).

Bruce, 2010 Ark. App. 171, at 8−9, 374 S.W.3d at 142. (emphasis added).

       In the present case, there was no emergency-room bill for the jury to consider that

would have been clearly related to the accident. And, there was no virtual concession of

damages. The attorney for James Tree herein stated: “I ask for you to look at those medical

[chiropractor] bills for that six to eight weeks. Or even . . . if you think that maximum

medical improvement as described by Dr. Bennett [Fought’s chiropractor] wasn’t until June

of . . . 2008, then so be it.” That closing argument is not an admission to award medical bills

as we had in Machost, nor is it a virtual concession as we had in Bruce. Therefore, we hold

that a new trial cannot be sustained on these statements made by counsel during closing

arguments.

       Because the circuit court abused its discretion, we reverse its order granting a new

trial and reinstate the jury’s verdict.

       Reversed.4

       HARRISON, WHITEAKER, and BROWN, JJ., agree.



       4
          The parties presented voluminous addenda containing hundreds of documents,
bringing the length of the briefs and addenda to approximately 1,900 pages. We find that
this was unnecessary in light of the way the case was argued on appeal and remind counsel
that an abstract and addendum can be deficient for containing too much material, as well as
too little. See Davis v. Schneider Nat’l, Inc., 2013 Ark. App. 737, 431 S.W.3d 321; W.
Memphis Adolescent Residential, LLC v. Compton, 2010 Ark. App. 450, 374 S.W.3d 922; Am.
Transp. Corp. v. Exch. Capital Corp., 84 Ark. App. 28, 129 S.W.3d 312 (2003); Miller v.
Hometown Propane Gas, Inc., 82 Ark. App. 82, 110 S.W.3d 304 (2003). Although we decline
to order rebriefing, we caution counsel against such practices in the future.

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       ABRAMSON and GLOVER, JJ., dissent.

       DAVID M. GLOVER, Judge, dissenting.                The trial court did not abuse its

discretion in granting a new trial, and I, therefore, dissent. We should affirm the circuit

court’s grant of a new trial under Arkansas Rule of Civil Procedure 59 (a)(5) (error in the

assessment of damages) and (a)(6) (verdict clearly contrary to the preponderance of the

evidence).

       The majority accurately states our review standard, which can be summarized as

follows:

             1. When we review an order granting a new trial, our inquiry is whether the
                circuit court abused its discretion. Razorback Cab v. Martin, 313 Ark. 445, 856
                S.W.2d 2 (1993). The abuse of discretion must be “clear” or “manifest.” Bruce
                v. Hancock, 2010 Ark. App. 171, at 7–8, 374 S.W.3d 138, 141. 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. Abuse of
                discretion means a discretion improvidently exercised, i.e., exercised
                thoughtlessly or without due consideration. Id. However, the circuit court is
                not to substitute its view of the evidence for that of the jury. Razorback Cab,
                supra; Eisner v. Fields, 67 Ark. App. 238, 998 S.W.2d 421 (1999).


             2. When an order granting a new trial is expressed in general terms, as in this
                case, without a specification of grounds, it must be affirmed if it can be
                supported on any ground alleged in the motion. Slaton v. Slaton, 330 Ark.
                287, 294, 956 S.W.2d 150, 153 (1997); Gen. Motors Corp. v. Tate, 257 Ark.
                347, 349, 516 S.W.2d 602, 604 (1974). Accord, J - McDaniel Constr. Co., Inc.
                v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (applying
                same rule to order granting summary judgment in general terms).




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          3. The mere fact that a plaintiff has incurred medical expenses and the defendant
             has admitted liability does not automatically translate into a damage 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. Mo. Pac.
             R.R. Co., 321 Ark. 214, 902 S.W.2d 217 (1995).


       Fought, in her motion for new trial, argued she was entitled to a new trial because

James Tree’s attorney and one of its experts, Dr. Harry Smith, both admitted she suffered at

least some damages proximately caused by James Tree, yet the jury found Fought sustained

no damages proximately caused by James Tree. Fought further argued the jury’s assessment

of $0 in damages was against the preponderance of the evidence.

       To counter Fought’s argument, James Tree relies on the following facts: (1) the

impact or collision was minimal; (2) she did not complain of injuries at the scene; (3) she

drove her vehicle while chasing Williams after he fled from the scene of the accident; (4)

she did not immediately seek treatment for her alleged injuries, instead electing to receive

treatment from a chiropractor the day after the accident; (5) her medical records indicated

that, before the accident, she had received treatment for similar complaints (depression and

headaches) that she attributed to the accident; and (6) she was involved in a fall at work in

2011 and another automobile accident in 2010 and sought treatment in both instances.




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       These facts may explain an award of minimal damages, but they do not adequately

explain an award of zero damages. Fought’s doctors all agreed she sustained at least a sprain

or strain proximately caused by the automobile accident. The nature, severity, and

permanency of her injuries were sharply contested, but all experts agreed her injuries would

not have subsided any earlier than six to eight weeks after the accident. The specific basis

for this dissent is that Fought’s entitlement to some damages appeared to be a given when

James Tree’s defense counsel virtually conceded in closing arguments that Fought had

incurred some damages in the accident. For emphasis, I repeat the majority’s recitation of

defense counsel’s closing arguments, during which defense counsel argued to the jury:

Let’s get down to talking about the car wreck. Answer to Interrogatory Number 1, “Did
she have an injury as the result of the car wreck?” You bet. Would I say that she didn’t?
No. I wouldn’t tell you that. But when you come to that question, and you think about
what you’ve heard in this case, and you think where we are six and a half years later, tap
yourself behind your right ear. Come back around to what you’ve heard. A fist-sized dent
a quarter-inch deep, and they’ve got her believing—and we asked her about it; we saw it—
they’ve got her believing it.

Shortly thereafter, when discussing the reasonableness of Fought seeking treatment from a

chiropractor instead of a medical doctor, defense counsel returned a second time to the

matter of how the jury should answer Interrogatory Number 1:

I ask you to answer Interrogatory Number 1 yes. I ask for you to look at those medical bills
for that six to eight weeks. Or even, Ladies and Gentlemen, if you think that maximum
medical improvement as described by Dr. Bennett [Fought’s chiropractor] wasn’t until June
of 2009—or ‘08, excuse me—2008, then so be it.




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       The majority correctly states a circuit court may consider concessions made in

opening statements or closing arguments in deciding whether to grant a new trial. See

generally Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004); accord Bruce v. Hancock,

supra. I disagree with the majority that defense counsel’s statements here did not constitute

a concession. Defense counsel twice asked and answered for the jury the direct-injury

interrogatory.

       An appellant shoulders a burdensome task demonstrating the circuit court abused its

discretion. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). I do not believe James

Tree has shown the circuit court abused its discretion in granting Fought a new trial on the

basis that the jury erred in its assessment of her damages or that the jury’s verdict was against

the preponderance of the evidence, given defense counsel’s statements in closing argument.

As our case law holds, it is harder for James Tree to show prejudice from the grant of a new

trial because James Tree will still have the opportunity to prevail at the new trial. Bruce,

supra. The trial court did not abuse its discretion.

       I am authorized to state that Judge Abramson joins in this dissent.

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.




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