497 S.W.3d 696
Ark. Ct. App.2016Background
- On June 26, 2007, Terri Fought’s Toyota Prius was rear-ended by a dump truck owned by James Tree and driven by Rogers Williams; impact produced a small dent (described as fist-sized, 1/4" deep). Williams fled the scene.
- Fought sought chiropractic treatment beginning the day after the accident and continued treatment over several years; she sued in 2008 for personal injuries and later added a crime-victim claim for Williams leaving the scene.
- At a seven-day jury trial in Sept. 2013, the jury found James Tree not liable for any proximately caused damages and awarded Fought $0 on all interrogatories; judgment entered Oct. 24, 2013.
- Fought moved for a new trial on four grounds (jury verdict contrary to evidence; error in awarding zero damages; prejudicial misconduct by defense counsel; other procedural grounds). The circuit court granted a new trial without specifying which ground supported the order.
- The Court of Appeals reversed, holding the trial court manifestly abused its discretion. The majority concluded counsel’s misconduct did not deprive Fought of a fair trial and that the jury’s zero-damages verdict was not clearly against the preponderance of the evidence; it reinstated the jury verdict. A dissent would have affirmed the new trial based on (a)(5)/(a)(6) and defense counsel’s apparent concession of some damages.
Issues
| Issue | Fought's Argument | James Tree's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in granting a new trial | New trial warranted because verdict was contrary to the evidence, zero damages was erroneous, and counsel misconduct denied a fair trial | Trial court substituted its view for the jury; no manifest abuse because jury could reasonably find zero damages and admonishments/contempts controlled counsel | Reversed: trial court abused discretion; new trial improperly granted, jury verdict reinstated |
| Whether defense counsel’s courtroom conduct (yawning, displaying inadmissible photos, referencing absent driver) deprived Fought of a fair trial under Ark. R. Civ. P. 59(a)(1) and (2) | Misconduct was prejudicial and prevented a fair trial | Conduct did not prevent a fair trial; court controlled proceedings, admonished counsel, and imposed contempt fines | Held not prejudicial enough to justify new trial; Suen precedent controls; reversal required if court relied on these grounds |
| Whether the jury’s zero-damage verdict was clearly against the preponderance of the evidence (Ark. R. Civ. P. 59(a)(6)) | Evidence and experts showed at least sprain/strain and six–eight weeks of treatment, so zero verdict was against the evidence | Plaintiff had preexisting conditions, delayed care, minimal collision—jury could credibly reject causation and damages | Held the zero verdict was within jury’s province; circuit court improperly substituted its view for the jury |
| Whether defense counsel’s closing argument amounted to a concession of some damages warranting a new trial | Counsel’s statements invited the jury to award at least some chiropractic bills, amounting to a concession | Statements were argument urging a minimal award if any, not an admission of liability for bills | Held not a true concession like Machost/Bruce; insufficient to support new trial |
Key Cases Cited
- Slaton v. Slaton, 330 Ark. 287 (trial court may enter general-order granting relief without specifying grounds)
- Suen v. Greene, 329 Ark. 455 (misconduct of prevailing party’s counsel does not require new trial absent prejudice)
- Razorback Cab v. Martin, 313 Ark. 445 (standard: manifest abuse of discretion to overturn new-trial grant)
- Depew v. Jackson, 330 Ark. 733 (admission of liability and medical expenses do not automatically mandate damages award)
- Kratzke v. Nestle-Beich, 307 Ark. 158 (jury may disbelieve otherwise uncontradicted evidence; plaintiff still bears causation burden)
- Young v. Honeycutt, 324 Ark. 120 (court cannot substitute its view for jury unless verdict clearly against preponderance)
- Potlatch Corp. v. Mo. Pac. R.R. Co., 321 Ark. 314 (jury as sole judge of credibility and weight of evidence)
- Machost v. Simkins, 86 Ark. App. 47 (defense concession of medical expenses can justify new trial)
- Bruce v. Hancock, 374 S.W.3d 138 (Ark. App.) (virtual concession in closing can make some damages a given and support new trial)