Dodson v. Allstate Insurance

Sevener, set out in and Applying principles supra, that the we hold chancellor erred when he inter Tweedy,supra, and number ordinance 700 as preted lant’s approved extinguishing appel to her of Brown right ingress egress by way property Drive. because is an landowner ing appellant abutting Specifically, who has established a to use Drive as a right-of-way Browning means of her to continue to use that ingress egress, right right- could not be of-way ordinance number legally extinguished by City’s adoption chancellor, As

700. the ordi interpreted by nance exceeded the of Ark. Ann. Code 14-54-104(2). scope § street, abandon or vacate the use of but it City may public may not without extinguish compensation appellant’s property right we reverse the chancellor and ingress egress. Accordingly, remand this matter further consistent with this proceedings opinion.

Reversed and remanded. DODSON, H. M.D. v. Jon

ALLSTATE INSURANCE COMPANY 00-456 Court of Arkansas

Supreme delivered Opinion June David M. for Hargis, appellant. BA., Watts; Donovan, N. and Law Watts Richard Laser by: & Brown,

Firm, for A. Brian by: appellee. Dodson, M.D., Hannah, Appellant appeals Jim Justice. Jon verdict favor finding Pulaski County jury’s Appellee on defamation and tortious claims of Allstate Insurance Company on March a contract. This court case interference with accepted 9, 2001, ten raises to Ark. Ct. R. Dodson 1-2(g). pursuant Sup. erred that hold that the in ruling We trial judge points appeal. not be used at trial Allstate’s withdrawn counterclaim could with contrac defamed or interfered Dodson’s evidence that Allstate his reverse and remand. with We tual patients. relationships

Facts 3, 1997, All- Dodson filed complaint against On September Arkansas, Bobbie Waddell and state and of its two agents John direction, Runkle, at that these Allstate’s alleging employees, and that insureds claimants defamed Dodson by representing his at treatment Dodson provided unqualified physical-therapy office that this amounted to fraud. also Dodson complained treatment, that Allstate that he for that represented overcharged his medical Dodson further these that practice illegal.1 alleged statements were with defamatory made an intent damage Waddell, Allstate, and Runkle answered on professional reputation. 5, 1997, and then filed a counterclaim on September they Novem- Allstate, Waddell, counterclaim, ber 1997. and Runkle did not Dodson state-licensed ther- alleged employ physical clinic, defraud, at his that Dodson intended to deceive and apists Act, that these acts violate the Arkansas Physical Therapy Dodson for collected unlawful and money knowingly unnecessary treatment, and that Dodson to Allstate the treatment misrepresented he Allstate further an provided patients. requested accounting five Dodson moved previous years sought punitive damages. to dismiss the counterclaim and filed his answer to the counterclaim on November 1997. 17, 1997,

On December filed his first amended com- in which he a claim for civil plaint alleged conspiracy among defendants wherein Dodson and they targeted others to them put out of business in order to their increase Dodson that profits. alleged these the defendants were as by unfair methods practices performed Allstate that competition, to induce claimants to attempted their due attention, seek forego to to medical rights process and that Allstate set out on a course to Dodson’s and destroy reputation business. Dodson further acts alleged Waddell specific performed by and Runkle in furtherance of these claims. case, Over the of the course filed various parties requests admissions, for and discovery, of documents. The production par- ties motions to exchanged motions deem to admissions compel, admitted, and to motions strike answers. Due discovery to constant the trial court bickering among entered an parties, 14, 1998, order on December that the at a noting agreed parties to resolve themselves hearing discovery without disputes among However, court intervention. because the could not resolve parties 1 Dodson filed filing subject two before that is the previous complaints complaint of this He August first filed a on seeking judgment 3, 1994, a appeal. complaint declaratory Pulaski Circuit that his Court that were not state County employment physical therapists but licensed, Dodson under medical license was On supervised 17, 1995, proper. May that case justiciable was dismissed the court because a issue had not been raised. On July 14, 1995, for defamation and tortious interference awith contract was filed complaint Pulaski Circuit August Court. This action dismissed on was Dodson This County 1, 1996. current action was then filed 1997. themselves, that certain of Dodson’s court ordered the issues for be stricken with admissions to the defendants’ answers requests The court to six time to particular requests. additional respond to strike defendants’ be the remainder of the requests that ordered the trial court found that motion to denied. On Dodson’s compel, certain the defendants were adequate, requests by certain answers by broad, that court ordered Allstate and the were overly Dodson basis, a limited Arkansas certain on providing to requests respond materials only. 30, 1998, reduce filed a motion to time December Dodson

On of the trial a motion for reconsideration for discovery responses, 1998, 14, on the motions in its order to December court’s rulings times and dates and a motion for order for discovery, setting compel of evidence. The for authentication procedures depositions 20, The defendants also 1999. defendants January responded or, alternative, in the a motion for order filed motion protective Dodson’s second set interrogatories requests to quash do with lawsuit had to nothing arguing they production asked a and were merely “fishing expedition.” responded 1, 1999, that the defense had “stonewalled” on February arguing ordered had failed to any discovery. discovery produce that the discovery sought Dodson further argued requested soft-tissue Allstate’s continued denying injury practice highlight motions, filed both additional claims. addition these parties lack thereof. motions or discovery regarding Waddell, Allstate, moved and Runkle On April counterclaim, and the court this motion that dismiss their granted later, the to a A week agreed joint stipulation same day. parties Allstate contained in thirteen volumes of documents company with for the authentic and the rules admissi- manuals were comply However, the in Arkansas. of business records stipulation bility as to whether noted that it remained an issue for the jury specifically of were in the local these records used training employees. on defendants filed a motion for judgment April The summary 16, 1999, the tort of Arkansas no longer recognized that arguing se, show which and Dodson must actual damages, defamation per Furthermore, that do. the defendants argued any he could not have been and Runkle that made Waddell by may statements no action and that took they improper were defamatory privileged, to with contractual relations. replied interfere Dodson’s to 22, 1999, and included on motion for April summary judgment well, including defense motions to various other responses, motion limine and motions exclude The trial certain witnesses. court denied the defendants’ motion for on summary judgment 7, 1999, 8, 1999, reset the trial and ordered that May September motions, no further or amendments would be pleadings, permitted without leave of court and no additional be would discovery 12, allowed. The court “froze” also the witness lists. On August however, 1999, Dodson filed a second amended complaint restating his claims in the first amended and his claim complaint increasing for damages. 8, 1999, Trial in this case on with began voir September jury trial, dire. Over course of the each numerous party presented witnesses who testified made regarding alleged representations Allstate its and as well as the claims agents, Allstate. practices defendants also evidence of the lack of presented alleged proper and treatment care Dodson and his aides in physical-therapy of the defense’s that were support theory claims denied properly trial, because of treatment At the Dodson. close inadequate Dodson dismissed his prior Runkle and Waddell and instructing jury, claims against Allstate. The trial proceeded against only court submitted the claims of defamation tortious interference with a contractual to the and the relationship found for jury, jury 24, 1999, Allstate. On court trial entered its September judg- ment decision. Dodson raises ten reflecting jury’s on points appeal.

I. Misconduct Judicial Juror Dodson first on trial erred in argues court appeal his motion for new trial there denying because judicial misconduct that juror damaged fair case to ability present This court has said jury. decision whether or to grant a motion for new trial lies deny within the sound discretion trial 924, court. State v. 20 S.W.3d 354 Cherry, (2000); State, Millerv. will (1997). This court reverse a trial court’s order a motion for a new trial if granting only there is a manifest abuse discretion. A trial Id. court’s factual determination on a for a motion new trial will not be reversed State, unless erroneous. clearly Clayton 906 S.W.2d 290 (1995).

441 Misconduct A. Judicial to his that trial was biased hostile judge Dodson argues the outcome of this this claims and that “ultimately...determined trial that the on various rulings Dodson argues judge’s litigation.” trial, motions, his made and at hearings statements during discovery Dodson, and the the court’s denial instructions proffered jury all served to communications with juror judge’s prejudice alleged Dodson. review, as did

This is not for argument preserved appellant the trial nor did he move for not statements object any judge, State, 142, recusal. See v. 334 Ark. Britt judge’s he Dodson cites what believes are biased (1998). While examples or harsh remarks on of the trial abstract is devoid judge, part such, even or motion to recuse. As any objection though trial, for it has matter the motion new been aban was argued in a doned for failure to the issue preserve timely appeal manner. proper

B. Misconduct Juror in his motion new trial and on Dodson also for alleges appeal who became the foreman one jurors jury engaged with lied voir ex communications the judge, improper parte during dire and demon- about her and insurance profession experience, acts of strated outward disdain Dodson’s during closing arguments. a new under misconduct is a basis trial Jury granting State, 161, 562 Rule See v. 871 S.W.2d 59 Trimble (a)(2). Hall, 571, 32 v. Ark. S.W.2d The (1988). Hacker 296 759 (1994); a new trial under Ark. Civ. P. 59 decision whether R.. grant the trial will not be reversed with who (a)(2) discretionary judge is Louis absent abuse of discretion. Bordenv. St. Southwestern an 316, The Ark. 795 burden of (1985). 287 698 S.W.2d Ry.Co., proof is on the Id. misconduct jury moving party. establishing must show that the misconduct alleged prejudiced moving party of this after a fair trial and that he was unaware bias until chances for State, (1989); trial. Owensv. 777 S.W.2d Hendrix State, have We held that (1989). 768 S.W.2d that a reasonable bears the burden of possi appellant demonstrating contact or resulted from bility alleged improper prejudice State, conduct. See Kail v. 14 S.W.3d 878 (2000); State, S.W.2d 625 (1995). Griffin fails Dodson to show that the trial his Again, abused judge discretion in the motion for new where trial Dodson’s denying for motion new trial to affidavitsfailed indicate how supporting Dodson was the conduct. prejudiced by Dodson juror’s Certainly, himself, wife, offered affidavits his from and his daughter, along with an affidavit from David the that attorney, Hargis, alleging with acted disdain juror generally during closing Hargis’s argument. However, no was evidence submitted to indicate that these alleged antics had influence over other or the court. any jurors Further more, while Dodson that this in ex alleges juror engaged parte communications the with trial there is no evidence judge, again besides the affidavits these contacts occurred or that had they on other the any bearing jurors’s or decisions in this perceptions case. in juror Apparently question answering juror’s information sheet listed her as a housewife. occupation Dodson states learned after trial that the they owned juror’s family business and that the juror for the business’s responsible family However, Arkansas Worker’s self-insurance Compensation plan. dire, voir to Dodson’s during response stated juror question, that she was to a married she was a lawyer, state chair-person chamber-of-commerce-related committee workers’ concerning and that at a state committee compensation, legislature meeting called her a “Nazi.” not plaintiff’s lawyer Dodson did question further, cause, he did juror any not her for and he not challenge did strike her from the voir dire was jury. juror’s response during sufficient to cause Dodson further or at least to her strike inquire from the Dodson cannot jury. maintain after the trial that he was this when he had prejudiced by juror sufficient information during voir dire to strike her from the Dodson failed to jury. Basically, of from the supply any proof misconduct prejudice alleged juror.

II. Discovery In his second point appeal, argues discovery abuses occurred when Allstate “stonewalled” production documents, all, sometimes failing at produce requested discovery and the trial not court did Allstate to all compel produce but documents instead limited requested to “Arkansas” discovery materials. Allstate that the trial court did not abuse argues its discre- tion in Allstate to refusing require certain documents produce in not Dodson cannot show

and that prejudice receiving information. Procedure 26 “General

Arkansas Rule Civil provisions gov- states erning discovery” pertinent part: (b) Unless otherwise limited order of the Discovery. Scopeof rules, the court in accordance with these is as scope discovery follows: (1) In Parties obtain mat- may discovery any general. regarding

ter, not which is relevant to the issues in the privileged, pending actions, it whether relates to the claim or defense of the party or to the claim or defense of other seeking discovery any party, existence, nature, condition, the including description, custody, books, documents, and location of or other identity any tangible and the and location of who have things identity persons knowl- of discoverable or edge matter or who will be called as a any may witness at the trial of It cause. is not that any ground objection the information will at be inadmissible the trial if the sought information calculated to sought lead to the appears reasonably of admissible evidence. discovery held the This court has that trial court has wide long discretion in matters to and that a trial court’s pertaining discovery decision will not be reversed absent an abuse of discretion. Parker v. Co., 1073, Southern Farm Bureau Ins. 326 935 S.W.2d 556 Lukas, 74, Stein v. 308 Ark. 832 (1996); 823 S.W.2d (1992) (citing 227, Co., Marrow v. State Farm Ins. 264 Ark. 570 S.W.2d 607 court the (1978)). of the trial magnitude Although recognizes matters, court’s discretion in it has found an abuse of discovery discretion where there has been an undue limitation of substantial of the under the circumstances. Rickett v. rights appellant prevailing 251 Ark. A motion for (1971). Hayes, produc tion of documents must be considered in the light particular it, circumstances to and the need the which rise of movant for give Marrow, the information In cases where the requested. supra. appel documents, lant is his claim relegated having by prove papers, the of letters should be discovery kept appellee, scope broader. Id. consider this factor in whether We there has deciding been an abuse of discretion in a Id. The discovery denying request. of is to to obtain whatever informa goal discovery permit litigant tion he need to for issues that may prepare adequately may develop without an Id. onerous burden on his adversary. imposing around the causes

Permissible revolves discovery necessarily and from these causes action of actions alleged by plaintiff, the trial court must fashion its See Ark. R. rulings discovery. case, libel, Evid. In this three causes of action: 26. alleged tortious interference with contractual and civil con relationship, that relevant to these claims Rule 26 notes is discovery spiracy. must be produced.

To understand the relevancy requested discovery, one must understand elements and nature of causes of action First, the elements must be alleged. following proven support defamation, claim of whether it be word or spoken (slander) the written word nature of the (libel): (1) statement defamatory fact; (2) statement’s identification of or reference to the defendant; of the statement (3) (4) plaintiff; publication defendant’s fault in the the statement’s (5) falsity; publication; Tucker, (6) Brownv. 954 S.W.2d (1997); damages. Pub., Inc., Mitchellv. GlobeInt’l F. 1235 (W.D. Ark. 1991). Supp. held in the case of We UnitedIns. Co. Americav. Murphy, 364, 961 S.W.2d 752 that a a defamation case (1998), plaintiff must in order to recover prove reputational injury damages. Ins., United the doctrine of in a defamation presumed damages per abolished, se case was and all inconsistent were decisions prior also, Price, 542, overruled. See Ellis v. 337 Ark. 990 S.W.2d 543 An action for defamation turns on whether the (1999). communi cation or tends or is calculated to cause harm publication reasonably Inc., to another’s Southall v. Little Rock 332 reputation. Newspapers, 123, Ark. 964 S.W.2d 187 Little Rock (1998); Inc. Newspapers, 561, 330 Ark. 954 S.W.2d 914 Thomson Fitzhugh, (1997); Newspaper 455, 897, Inc. v. 320 Ark. 896 S.W.2d cert. Publishing, Coody, denied, 116 S. Ct. 563 (1995). Next, the elements of tortious interference that must be are: the existence of a valid contractual or (1) proved relationship a business (2) of the or expectancy; knowledge relationship expec (3) intentional interfer tancy part interfering party; ence or a breach or termination of the inducing causing relationship or resultant to the rela (4) whose expectancy; damage party Tucker, or has been Brown v. tionship 330 expectancy disrupted. 435, Ark. 954 S.W.2d 262 Cross v. Arkansas Livestock& (1997); Comm’n, 255, 328 Ark. Bilt 943 S.W.2d 230 United Poultry (1997); Homes, 47, Inc. v. 832 S.W.2d (1992). 502 Our Sampson, law the conduct be at defendants least requires and we look to factors in 767 of the RESTATEMENT “improper,” §

445 about is what Mason v. guidance improper. OF Torts (SECOND) Inc., Stores, Wal-Mart 969 160 S.W.2d (1998).2 in order to a civil Finally, conspiracy, prove must show a combination of two or more persons accomplish that is unlawful or or to some purpose oppressive accomplish pur unlawful, immoral, unlawful, not in itself or pose, oppressive means, or immoral to the of another. Mason v. oppressive Funderburk, injury 247 Such a (1969). conspir itself, is not actionable in and of but be had for acy recovery may caused acts committed to the Id. damages pursuant conspiracy. Civil is an intentional tort intent to conspiracy specific requiring 16 Am. 2d accomplish contemplated wrong. Conspiracy JUR. itself, Since a (1998). cannot with entity corporate conspire § civil is not where a and its conspiracy legally possible corporation entities, but, rather, are not stand in alleged coconspirators separate either a or with the principal-agent employer-employee relationship Id. at 56. not be held fiable for corporation. civil Corporate agents may § in the absence of evidence were conspiracy showing they for their own benefit rather than for the acting benefit of personal Id. at 68.The in a civil corporation. only proper party plaintiff § action is who has suffered Id. at 66. conspiracy person damage. § Based on these elements to Dodson’s causes of foregoing action, it is clear that because Waddell and Runkle were employees of Allstate all out directives Allstate in the presumably carrying course of their the civil claim could not employment, conspiracy have even if survived Dodson had not dismissed Waddell voluntarily And, and Runkle from the case to its submission to the prior jury. understanding To obtain a better of the term the court referred to “improperly,” (Second) (1979), the Restatement of Torts which states: § determining whether an interfering actor’s conduct with a intentionally contract or a contractual relation of another is or consideration is not, prospective improper given following to the factors: conduct,

the nature of actor’s motive, the actor’s of the other with interferes,

the interests which the actor’s conduct sought the interests to be advanced the actor, by protecting the social interests in the freedom action of the actor and the of contractual interests of the other, or to the interference remoteness the actor’s conduct proximity the relations between parties. Mason,

See 333 Ark. at 14. dismissed, the civil these individuals were once certainly, conspiracy Allstate, could to fail because as a claim had corporation, necessarily Therefore, this court must con- with itself. necessarily not conspire abuse of discretion court’s decisions based on an sider the trial in the case: the two viable theories defamation review under with a contractual tortious interference relationship. action, we cannot that the

Pursuant to these causes say trial court abused its discretion in to Arkansas limiting discovery nationwide materials or to Allstate to docu failing compel produce two causes of action a direct ments because these necessarily require Defamation, for act Dodson. example, requires against defendants make slanderous or libelous directly specific publication to Dodson in order for those statements be actionable. against well, with a contractual Tortious interference relationship, that the know of the existence of a valid con defendants requires tractual or a business and intentional inter expectancy

relationship termination of the ference or a breach or relation inducing causing or The for documents about which ship expectancy. requests not, however, do to Dodson appears complain appear provide information “which is relevant to the issues actions” pending calculated lead or is admissible discovery “reasonably evidence.” Dodson that he did not receive For example, complains however, “Do You Need letter he Lawyer” through discovery; fails to show how this letter defamed him or interfered with his addition, contractual with his clients. Dodson relationships that Allstate failed to the “scratch used argues produce pads” by Dodson Runkle and his office claims which treating abstract, however, contains evidence these physician. “scratch used Allstate in its evaluation of these claims. by pads” that the trial limited to “Arkan Dodson judge discovery complains materials; however, he sas” fails to show how materials and matters Allstate outside of Arkansas defamed him or interfered employed with his contractual with his clients. This would be relationship action, if this were a class but it is not a class proper discovery Instead, action. at the time of the trial court’s rulings discovery, it and two of was a suit Dodson Allstate its against agents defamation, interference with his contractual tortious relationship clients, Overall, with his and civil based on the viable conspiracy. trial, at claims presented rulings limiting discovery for the causes of action in this case did not amount to an abuse of discretion.

447 III. The Counterclaim In his third on that the trial point appeal, argues court erred in that Allstate’s withdrawn counterclaim could ruling not be used at trial as evidence that Allstate defamed or interfered Dodson’s contractual with his Allstate relationships patients. .with that the trial court did not abuse its discretion in responds denying the use of this evidence because the counterclaim contained legal assertions and issues for the and did not evidence jury comprise Allstate’s of the claims the case. On we will position not appeal, reverse a trial court’s on admission of evidence ruling absent an O’Fallon, abuse 138, of discretion. O’Fallon v. 341 Ark. 14 S.W.3d O’Donnell, 460, 506 In re Estate (2000); 304 Ark. (1991). Nor will we reverse trial court’s ruling evidentiary Buchman, matters absent a showing 338 Ark. prejudice. Jackson 467, 996 S.W.2d 447, 30 Grummerv. (1999); 336 Ark. Cummings, Stills, 986 470, S.W.2d 91 Edwardsv. (1999); 984 S.W.2d 366 (1998).

The case law on this issue has over the into two diverged years schools of Some Arkansas thought. cases hold that the admission of as evidence is not pleadings allowed as a generally admission party 330, in a case. See Sutter v. Payne, 989 S.W.2d 887 (1999); Miller, Co., 149, Tri-State Transit Inc. v. Ark. 65 S.W.2d 9 (1933); Clark, Little Rock & Ft. Smith Co. v. Ry. 25 S.W. 504 cases, (1894). In these this court noted that a withdrawn answer could not be introduced at trial as a admission. In party Miller court discussion of the use of a provided thorough party’s case, as evidence in a pleadings stating:

The only assignment of error which we deem to be well taken evidence, is the introduction in over appellant’s objections, of its substituted answer hereinabove set out and which was withdrawn answer,” replaced by “second substituted on which the case went to trial. Said answer was filed particular was purpose, the nature of a demurrer and an It offer of admitted compromise. allegations of for the complaint purpose contending was an appellee to the employee subject Louisiana Work- men’s It Act. offered to confess Compensation for the judgment maximum amount allowed under he said act if were an employee.

Its introduction in evidence was manifestly if errone- prejudicial, done, true, for the reason ously that it admitted to be “for the answer,” of this all the purpose as to allegations complaint verified, how the occurred. injury Said answer was not but was In the “second substituted by attorney. signed only appellant’s answer,” Under was the answer withdrawn. previous specifically and to admit in it was erroneous prejudicial such circumstances Clark, Co. v. 58 Ark. Railway the withdrawn answer. evidence 504, 490, the held that it was error to permit 25 this court S.W. as an admission to read the answer original appellant appellee 251, withdrawn, 33 Ark. had been and Holland v.Rogers, after same This cited in of the support holding. and other authorities were Co., L., with in v. St. I. M. & S. R. Murphy case was cited approval held, headnote, 159, 636, 122 where it was a quote 92 Ark. S.W. counsel and submitted prepared by plaintiffs that: “Interrogatories counsel, to defendant’s but abandoned subsequently by plaintiff witness, are not to the intended admis being without propounded sible, or as admissions of counsel.” plaintiffs either as testimony Co. v. Clark to be appears' against The rule announced Railway it the for in 14 A.L.R. 65 is stated: weight authority,- great admitted, other conditions “With but few are exceptions pleadings filed, in the in which being proper, against pleader proceeding * * * therein contained.” as evidence of admissions interest against Arkansas, California, there noted are Mississippi, exceptions Missouri, own case of Holland v. and Nebraska. Our Washington Clark, are cited in of the Co. v. Rogers Railway supra, support Wise, 1, rule. In Co. v. 123 S.W. minority ValleyPlanting 768, 403, (N.S.) 26 L.R.A. it is held that “a statement contained in filed a in another action between the same pleading party him, be but such admission is not against parties may proved That referred to a conclusive and is subject explanation.” plead which the case went to trial between the same in the parties ing 640, 564, Evans, other action. In v. 145 S.W. where Taylor error was for the refusal of trial court assigned permit to read in evidence the and where complaint, defendant original what were had testified that he did not know allegations plaintiff court said: “The evidence com being made in complaint, admission, for the an or as estab only showing petent purpose statement of the it is not admissi lishing contradictory plaintiff, ble, it knew of the where does not appear plaintiff least of the or at where it affirma allegations original complaint, that he the contents of the com was not aware of tively appears force, It would be without either as an admission probative plaint. statement, unless it was shown that contradictory plaintiff or as In the recent of Greer was aware of contents'of case paper.” Davis, it was held that defendant’s v. S.W.2d admission, is whether verified or not. But answer an competent went to trial was an this was an answer on which the case se. It was his own pleading upon answer filed appellant pro trial, himself, which the case went to signed by was certainly Here, however, in the trial competent of that case. as was the case Clark, Co. v. Railway pleading withdrawn and a second substituted answer filed. It no remained a longer part record case, in the and was as evidence incompetent thereafter. The hold- Clark, Co. v. Railway ing broad, be a little too may for the authorities to hold generally that if a appear is verified pleading filed, in whose interest it is party it becomes a admis- judicial sion and remains competent evidence where a sub- superseded by stituted pleading. Miller, 188 Ark. at 152-153. In MissouriPac. Co., R.R. Thompson 559, 209 Ark. 191 Zolliecoffer, S.W.2d 587 this court (1946), again disallowed the introduction of a filed defendant in complaint defendant, lawsuit because the previous who recovered in the lawsuit, verified, had authorized, not previous or adopted However, the court pleading. noted that existed for intro authority duction of such evidence “to an admission...and prove also for the him, of purpose evidence, read the impeaching in or- complaint him, cross-examination, prove by that he had made allegation in the original inconsistent with his complaint contention.” present 209 at Ark. 563. Zolliecoffer,

More this court has recently, discussed the introduction of as evidence in a State, case. As pleadings Ark. noted in Greenleev. 318 191, 884 S.W.2d 947 (1994), court set out the evidentiary law the admission of regarding in Razorback Cab complaints Fort Smith, 323, 325, Inc. v. 444, 304 Ark. Lingo, 802 S.W.2d 445 (1991), stating: defendants, Over the objection were plaintiffs per-

mitted to introduce the in evidence. complaint Razorback charges the trial court with reversible error on this count and we sustain the argument. Complaints, normally in the most phrased partisan in are no language, conceivable sense That evidentiary. seems par- case, true in a ticularly personal and one in which injury punitive are damages sought. introduction of the as an complaint exhibit which the is jury told it should consider Civ. 3d [AMI and 101(d)] room, which it may take into the jury strikes us as arrant error. rule,

While the cases no hard bespeak and fast pleadings, especially are complaints, treated as inadmissible. generally v. Wright Hullett, 152, 245 Ark. 431 (1968) (“Statement S.W.2d 486 or in a allegation such as a bill in pleading, or a equity, petition 450 the action pleader, inadmissible in behalf of ... is complaint Mutual StateFarm filed, .”); . . against opponent.

in which it is Cates, 129, v. (1977); InsuranceCo. 546 S.W.2d 423 261 Bank Los Angeles, v. National Security-First Matsuuchi Fumiko 103 214, when has an (1951) (“Since allegation P.2d 376 229 Cal.2d an as evidence against opposing ever been regarded a pleading Kroger law.”); history is never at all in the The answer party? Warren, Abram v. Company 1966); 194 Civ. (Tex. App. 410 S.W.2d Raines, Felderbaum, v. Toney v. sky (1963); 194 A.2d (1955). 275 S.W.2d 771 Ark. at Greenlee, 325). Ark. at 194-195 Lingo, (quoting defendants all deal with a However, cited here these cases as evidence of to admit its own pleading attempting party Here, however, Dodson at trial. therein and contained allegations the defendants’ own counterclaim they to submit attempted time that Dodson was show that at one they alleged withdrew to is some acts. There support improper performing illegal in Arkansas law. submission for this purpose to be court has allowed transcripts This previous pleadings evidence of inconsistent prior admitted against opposing parties State, under Ark. R. Evid. 613. McDaniel statements that a from the court found (1987), transcript the defendant was admissible hearing impeach prior plea also allowed a The court of complaint Rule 37 appeals proceeding. the defendant as evidence to to be used from case prior State, in v. the criminal App. complainant Jernigan impeach In the trial court allowed S.W.2d 864 (1992). Jernigan, with a case to defendant in a shooting impeach complainant that the civil she filed alleging shooting complaint previous stated: In to the court of accidental. citing Lingo, appeals and this one is that in Lingo that The distinction between case his own as himself to introduce sought complaint the plaintiff bar, In the case at the defendant sought substantive evidence. with the latter’s filed in complaint witness impeach prosecuting Under circumstances complaint qualifies a civil action. these under Ark. R. Evid. 613. See inconsistent statement a prior State, McDaniel (1987). in line with McDaniel and This case falls more Jernigan own to admit his that Dodson was not attempting pleading claims, filed to admit a and dis bolster his but instead attempted defendants. This all of the pleading missed pleading adopted that Dodson was clearly alleges fraudulent acts. performing illegal, such, As it for use as evidence to show that qualifies impeachment Allstate’s stance at trial that it never despite asserted that Dodson had done Allstate’s own indicated anything wrong, that pleadings believed Dodson was they The trial acting court fraudulently. abused its discretion and committed error in not allowing defendants withdrawn counterclaim to be used as impeachment evidence.

IV Admission Evidence Results in Other Cases In his fourth on Dodson that the point trial appeal, argues court erred in the admission of evidence allowing results regarding in other cases different where Dodson involving was the parties treating issue in the other physician. cases was whether Dod- son’s medical treatment (the were physical therapy) charges reasonable and necessary. the trial argues although court admitted, ordered that these originally “results” would not be the trial court then overruled Dodson’s to cross-examina- objection tion those He regarding results. that it is very basic law that a argues entered in a judgment case between different is inadmissible parties and is not to that case. Allstate binding strangers responds nature of this case very evidence of the requires outcomes in other cases in which Dodson treated one of the Allstate parties. that admission of such argues evidence is with the trial discretionary court, and that Dodson the door to such opened evidence by witnesses who testified calling about Allstate’s of their handling claims cases where Dodson was the treating physician. at the citations to the abstract looking noted by Dodson, he in his brief that the trial although court argues specifi excluded cases, the evidence of the cally results in other such is not the case. For Dodson cites the reader example, 193 of the page abstract, where the trial court stated:

The COURT: All right. Let’s do it this You can way. get evidence that have tried these they and that various they’ve got results and use that for the they claims. purpose evaluating By, token, now, look, Allstate, the same can’t you go say, you them, tried ten of these and lost nine of didn’t you you?

Mr. HARGIS: Wasn’t to. planning Now, that out. that’ll level Okay. The Court: Sounds good. Mr. Donovan: to talk about it but way, That both of you get Court: be correct. into which would not specifics don’t you get discussion is that the trial court The most obvious this point in, come of outcomes in trials could ruled that evidence prior fact, he did not to this Dodson’s attorney object ruling. acqui- esced, However, now Dodson asks this as did Allstate’s attorney. that there was error where his own witnesses testified court to find rate decreased on cases where Dodson that their settlement success because was the of Allstate’s allegedly injurious treating physician acts, but that ruled in favor of Allstate at without showing juries of evidence is at the discretion of trial in those cases. The admission court, an abuse of that the trial and this court will not reverse absent O’Fallon, discretion or absent a Jackson, showing prejudice. supra; Here, that the trial court did not abuse its discretion we hold supra. in Furthermore, we hold that this evidence. Dodson admitting he, he evidence that made no himself, that by showing prejudiced forth and to which he did not

brought object upon the trial court. ruling by

V.Allstate’sRelianceon a Counsel Legal Opinion by on that the trial court In his fifth point appeal, argues erred in witnesses to about a secured allowing testify legal opinion Allstate Dodson’s clinic and its lawful- regarding physical therapy ness under the Arkansas Act. Dodson Physical Therapy argues at trial defense of reliance on he was “blind-sided” Allstate’s legal defense, and that an affirmative Allstate should have opinion, pled it in the answer. Allstate that it did not submit this replies legal- defense, trial, letter at it did not it as a and the rely jury opinion that the was a defense to the was never instructed legal-opinion However, defamation claim. when it came out testimony Allstate, was obtained the trial court legal properly opinion the defend- admitted the because evidence showed testimony intent, and also showed that Dodson’s ants’ motive opinion from the State Medical Board was controverted. this is an issue the admission of Again, regarding

evidence, which is reviewed this court under an abuse of discre by O’Fallon, tion standard of review. Allstate did not supra. Clearly, assert that it relied on a as a defense to and no legal opinion liability, instructions were to the such a defense. given jury regarding Instead, it that Allstate offered the evidence that it appears sought counsel to counter the legal obtained opinion by legal opinion Dodson from the State Medical Board of his regarding legality issue, as in the it that physical-therapy practice. Dodson previous appears Just to claim the benefit of attempts obtaining legal opinion, but does not want to allow Allstate to claim the same benefit with circumstances, its own under we cannot opinion. Again, say that evidence, the trial court abused its discretion in this admitting and Dodson fails to show that he was the admission prejudiced by Furthermore, of this evidence. Dodson fails to offer sufficient any that such evidence be legal authority must admitted as necessarily an affirmative defense rather than as another of evidence. just piece This court will not consider the merits of an if the argument cite fails to appellant that any convincing legal authority support and it is otherwise argument, not without further apparent Quachita research that the is well taken. Trek argument Development Rowe, 17 S.W.3d 491 Company (2000); Matthewsv. Ass’n, Hospital (2000). Jefferson VI. Sid McMath’s Exclusion Testimony In his sixth that the trial point court appeal, argues excluded Sid McMath’s improperly testimony regarding summary of Allstate’s voluminous records submitted at trial. Allstate argues that the trial court did not err in excluding testimony McMath law, on various issues conclusions as to issues of involving matters not within his realm of matters had expertise, been various other already witnesses. presented through While Dodson characterizes this as an exclusion of McMath’s Dodson is trial testimony, actuality court erred arguing to admit the fading summary prepared by Attorney Hargis reveals, and verified McMath. As Dodson’s abstract adopted court, trial after the defense that McMath objections was hearing not as an on issues of insurance claims qualified expert handling, overruled the McMath as an in objection designated expert such, area. As tbe trial court did not “exclude” McMath’s testi- However, when McMath mony. Hargis attempted question 6,000 about a he and on over summary Hargis, prepared pages manuals, defense claims objected, argu- in Allstate’s documents it was because by Hargis that the summary hearsay prepared ing of McMath. McMath acknowledged Hargis prepared instead McMath, he, the “verified” summary but that the summary however, court, sustained the defense’s objec- it. The trial adopted tion as to be admit- ruled that the could not summary hearsay McMath could not about its ted into evidence and that testify 6,000 that the over of docu- trial court noted contents. The pages that the documents had were the record and already ments of part been testified about. the admission of evidence is at the discretion of Again, court, court will not reverse absent an abuse of that

trial and this O’Fallon, a of discretion or absent showing supra;Jackson, prejudice. Evidence, the Arkansas Rules of summaries, which controls Rule 1006 of supra. the of admissibility provides: of voluminous or writings, recordings, photographs

The contents be be which cannot examined court conveniently may presented chart, a or calculation. The or summary, originals, in the form of shall be made available for examination or or copying, duplicates, both, at a time and The court other reasonable parties place. be in court. order that may they produced indicates, but As this rule the court a is not summary, “may” accept under the rule. This court has addressed Rule 1006 in bound to Inc., Prince, Const., E. two cases. In Wardv. Gerald 293 732 163 the court the trial court’s of S.W.2d (1987), upheld for acceptance costs offered the of an construction summary accounting in its claim to recover costs for a On construction company project. claimed it was error to This accept summary. appeal, appellant court stated: that while no Arkansas case has addressed argues Appellant Rule other and Arkansas decisions ren yet, jurisdictions rule dered to the conclusion prior adoption support (1) documents of a must be summary original underlying (2) to be admissible and made available in court in order to shown of the and to allow for effective cross- accuracy summary

assure further this court to urges adopt procedure examination. He state, Missouri, that, which in order to introduce our sister requires records, must notice of such intention summary give party See summary. within a reasonable time to actual use prior Co., 494 S.W.2d Union ElectricCo. v. Mansion House Redevelopment (Mo. 1973). Rule 1006 does not that a an require party notify opposing Instead, that he intends to introduce a it party summary. merely mandates the or which are docu originals, duplicates, underlying ments of a be made available for examination or summary, copying both, or other at a reasonable time and parties See place. Square Chisum, Liner v. (8th Inc. 691 F.2d 362 Cir. 360-Degrees, 1982). addition, the rule allows trial court discretion to order those documents be court. Our court ordered produced production State, such documents in Mhoon There, state, (1982). trial, the trial court directed the during documents located in the produce collector’s Washington county office, after an auditor to permitting his sum testify concerning mary of extracted from findings those documents. Although trial court offered defendant’s counsel a continuance to afford him documents, an to examine the opportunity counsel declined the offer. This court volunteered of the manner in which the approval trial court handled the matter.

Ward, Ward, 293 Ark. at 61. As noted in court in Mhoon v. State also allowed an auditor to his of docu- testify regarding summary ments from the collector’s office. In these two Washington County cases, the Here, of the testified as to its contents. preparer summary however, McMath did not but instead testi- prepare summary, fied that he “verified” Hargis’s summary against original records. The evidence, trial court determined that this was hearsay that the evidence, and, documents had been admitted into already further, that Dodson’s had testified about the docu- expert already ments. We and hold that the trial court did not agree abuse its discretion in to allow McMath to refusing testify regarding contents of a that he did not himself summary prepare being and, further, cumulative that Dodson has not shown that he was the exclusion of the prejudiced by summary.

VII. Non-physician’sTestimonyRegarding Standards

Physician’s In his next issue on Dodson that the trial court appeal, argues erred in a Ph.D. in Dr. Wilham allowing physical therapy, Bandy, treatment in Dr. testify regarding Dod- provided by therapists son’s clinic. Dodson cites this court to several cases and a model instruction who jury doctor’s regarding may testify regarding treatment. The defense that Dodson the door to responds opened this fine of Dr. had because Dodson testified questioning Bandy he, himself, trained his and that the State Medical therapists aides under of unlicensed sanctioned the use physical-therapy Board that Dr. did doctor. The defense notes Bandy of a supervision modalities, Dodson’s treatment but evaluate or comment on not commented on the aides’s inadequate training instead therapy treatment of patients. issue, this court reviews the this is an

Because evidentiary discretion, we hold that the for an abuse of trial court’s ruling discretion in Dr. trial court did not abuse its allowing Bandy it is clear that he was Dr. Bandy’s testimony, testify. reading aides lacked train whether the his giving regarding therapy opinion certain based on treatment of ing inadequate patients provided reviewed, he and that as an records expert physical therapy, to render such an he retained the knowledge requisite opinion at Dodson’s clinic. See R. Evid. the physical therapy provided correct that Dr. never commented on Dod 702. Allstate is Bandy Instead, to train aides. Dr. son’s or licensing ability physical-therapy about the sufficiency patients’s physi Bandy gave opinion than the medical treatment treatment rather cal-therapy provided Dodson.

VIII. Use Other Given by Depositions Dodson in PreviousCases that the trial In his next issue on Dodson court appeal, argues erred in Allstate to read into the record testimony allowing given cases legal depositions prior not read of his Dodson that Allstate could into objected patients. the without the record this testimony being proper procedure, allow to comment cross-examination or during the Allstate regarding deposition testimony. responds impeachment 32 of the Arkansas Rules of Procedure allows the Rule Civil a in admission of this because Dodson is testimony party deposition the case.

This issue revolves around the unclear of language the Rule 32 and the for which Allstate purpose presented deposi tion evidence. Rule 32 states pertinent part: the a (a) hearing Use At the trial or of Depositions. upon of an or all of a interlocutory any deposi- motion or proceeding, part tion, so far as admissible under the rules of evidence applied be the witness were then used though testifying, may present who against any or party present at the represented of taking thereof, or who had deposition reasonable notice in accordance with of the any following provisions: (1) Any be deposition may used for the by any party purpose of or contradicting impeaching a testimony deponent as witness or for other any purpose permitted by Arkansas Rules of Evidence. (2) who, The of a or deposition party at the time anyone officer, director,

taking was an deposition or managing agent, or a under person designated Rule 30(b)(6) 31(a) or to testify on behalf of a or public private corporation, or partnership association or governmental which a agency is be party, may used an adverse for party any purpose.

(3) witness, of a deposition whether or not a party, may be used by any party any if the court purpose (A) finds: that the dead; witness is (B) or that the witness is at a greater distance than 100 miles state, from the of trial place or isor out of this hearing, it unless that the appears absence of a witness was by the procured party offering or that the deposition; (C) witness is unable to illness, attend or because of testify age, or infirmity, imprisonment; or (D) the party offering has been unable deposition to procure the attendance of the witness by (E) or subpoena; upon application notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due to the regard importance of presenting of witnesses testimony orally open court, to allow the deposition to be used. A taken deposition without leave of court to a notice pursuant under Rule 30(b)(2) shall that, not' be used a against who party demonstrates when notice, served with the it was unable through exercise of to obtain diligence counsel to it at the represent taking who, nor shall a deposition; be used deposition against party received less than 11 having notice days has deposition, promptly upon such notice filed a receiving motion for a protective order under 26(c)(2) Rule that the requesting not be deposition held or be held at a different time or and such motion is place at the pending time the is held. deposition (4) If of a is only part offered evidence deposition an party, adverse him party may to introduce other require any part introduced) which in fairness be ought to considered with the part and any may introduce other party any parts.

458. rule, witness’s a use a may prior Under section (a)(1) party testi- contradict that witness’s to or testimony impeach deposition the use of this rule does the case. The mony not.limit present witnesses, allows a but deposi- rule to presumably party’s non-party or her in a case in be used him in a action to against tion prior Furthermore, 613 of the Arkan- a Rule is which party. person statements can when a witness’s Rules of Evidence prior sas governs him. This rule states: at trial be used against In examining Witness PriorStatement. (a) Concerning Examining him, whether a statement made by a concerning prior witness not, be shown nor its contents the statement need not written or time, be but on the same shall to him at that request disclosed counsel. to opposing shown or disclosed Statement Witness. Evidence Prior Inconsistent (b) Extrinsic statement a witness is by evidence of a inconsistent prior Extrinsic an to opportunity not admissible unless witness is afforded and the is afforded an party or same explain deny opposite and the is deny opposite party to or same explain opportunity thereon, him or the interests affordedan to interrogate opportunity does not apply otherwise This justice require. provision (d)(2). as defined in Rule 801 admissionsof a party-opponent rule, are to be when inconsistent statements to this According prior must the witness an used opportunity by party, party provide Flowever, as noted in section this rule does not (b), to respond. under Rule 801 (d)(2). to admissions by apply party-opponent to the trial court’s of this evidence is subject Again, admission discretion, did not abuse its discre- and we find that trial court Allstate to read into evidence testimony tion in deposition allowing Dodson. given previously Instructions

IX & X. Errors Jury Alleged at Trial Given Refused errors in the final Dodson raises alleged appeal, points He and refused the trial court. recites instructions jury given refused, out his instruc- fist of instructions that were why pointing and then also were over those jury, tions given preferable “rea- notes that two instructions were jury regarding given cases. Allstate sonable medical injury responds expenses” personal the trial court instructions refused first that Dodson’s by noting were, unclear, law or either contained erroneous statements of

459 and instructions clearer proper the court offered legally that trial read the court by that the instructions also argues instead. Allstate issues in case. the this of law to statements applicable were proper that a is entitled held party This court has consistently law, of the and when it is a correct statement to a instruction jury of the to is in the evidence giving there some basis support 666, Ark. 945 v. Co. instruction. Coca-Cola Bottling Priddy, 180, State, Yocumv. S.W.2d 355 (1997); Holder, 436 (1993). 867 S.W.2d v. Parker (1996); to However, not a trial court’s refusal give we will reverse prof discretion. unless was an abuse of Coca-Cola fered there instruction Furthermore, for the trial court to it is not error Co., Bottling supra. matter cor when the stated is instruction refuse jury proffered WildernessInst. v. Ouachita other instructions. covered recdy by 780 (1997). 947 S.W.2d Mergen, that the first Dodson acknowledges In his argument, claims contained an instruction on multiple explanatory provision notes, However, as Allstate that the court. was by rejected and were the court on this issue standard instructions given, to include in Dodson to the jury attempted explained provision instructions, his Dodson’s defamation his instruction. On proffered defama instruction contained regarding initial language proposed which, notes, se, was in UnitedIns. Co. as Allstate abolished tion per such, instruction was an As that America v. Murphy, supra. Furthermore, Dodson’s of the law. instruction statement improper court, the trial a fact not as clear as offered by was privilege Therefore, we at the instruction hearing. admitted in its different cannot the trial court abused discretion using say On the last refused those Dodson. instructions than instruction, proffered Dodson waived the record whether it is unclear from Furthermore, it. or whether he to objected despite this instruction not submitted to the that this instruction was Dodson’s argument submitted, and was in a modified version jury jury, actuality instruction. instructed on most provisions instructions offered by two Dodson objected Finally, and necessary about reasonable Allstate that instructed jury cases, that the in those jury medical personal-injury expenses such are reasonable necessary. cases decides whether expenses over to the Dodson’s read these instructions jury The trial court in the court trial these instructions resulted that using objections However, Dodson’s the case. argument Allstate’stheory adopting fails to offer any court because Dodson cannot be considered stated legal' We have on numer- authority argument. support ous occasions that we will not consider merits of an if argument fails cite any appellant convincing legal authority support of that it is argument, otherwise not without further apparent research that the is well taken. Matthews argument Hospital Jefferson Ass’n, supra. merits,

On the the Arkansas of Civil Rules Procedure set out the a requirement properly preserving jury-instruction on as objection follows: appeal

No as the party may assign error or the failure an giving to give instruction unless he thereto objects before or at the the time instruction is the matter to he given, stating distinctly which objects and the objection, of his and no grounds as party may assign error the failure to instruct on any issue unless such has party submitted a instruction on that proposed issue. rule,

Ark. R. Civ. P. Under 51. must be made any objections before at Farms, or the time the instructions are Fisher Valeo given. 945 S.W.2d 369 (1997). While Dodson timely instructions, to the of these objected giving had no objection Rather, basis for of Allstate’s support. defense was the part reasona- Dodson, bleness of medical treatment and these provided by instructions addressed issue. Again, is entitled ato party jury law, instruction when it is a correct statement of the and there is some basis in the evidence to of the instruction. support giving Co., Yocum, Coca-Cola Parker, hold Bottling supra; We supra; supra. that the trial did court not abuse its discretion these giving instructions.

Reversed and remanded. Spl. Phillips, J., joins.

James Spl. Kinard, Thornton, Mike and J., concur in and J., part dissent in part. and not Imber, JJ., participating. GLAZE

Mike Kinard, Special Justice, dissent- concurring part; While I ing concur with part. the majority opinion on all other on I must points dissent appeal, with respectfully Thus, of the sixth majority’s on disposition I write point appeal. it I believe only say was error for the court trial to disallow

461 6,000 of of concerning summary McMath’s testimony pages Sid and into evidence. been introduced received records that had witness, an As a Mr. McMath expert accepted records, 6,000 him about the of trial court allowed to testify pages he had to utilize the summaries him denying only right was error for several I believe that this adopted. acknowledged reasons.

First, Mr. McMath’s violates the not allowing testimony pur 1006 of the Arkansas Rules of Evidence. Rule Rule 1006 pose controls the of summaries. The Rule admissibility purpose to better understand admissible is to allow the trier facts E. Wardv. evidence otherwise made available the court. Gerald Inc., Construction, (1987). Prince S.W.2d 6,000 met when of business of Wardwere pages requirements made before the records had been record jury part contents. had been allowed their testimony regarding Second, and data made known to an facts rely expert may him at the trial. 703 the Arkansas Rules of or before Rule Evidence relevant states: in part in an on data the case which bases expert

The facts particular upon an be those or madeknown to or inference may perceived opinion the him at or hearing before We held that lack of knowl

Id. have the added). personal (emphasis the it exclusion of does not edge testimony, merely presents require State, as to the Scottv. jury question weight testimony. also Ark. 747, see v. 888 S.W.2d 628 Comm. (1994); Highway Schell, 683 S.W.2d 618 (1985). App. trial has broad court discretion determining Finally, However, the trial court whether should be admitted. summaries remain mindful the fact this discretion should exercising there is in the rule it be to examine no impossible requirement used and the records before summaries be require- underlying ment for the rule to may be “volu- is that “writings” apply underlying be convenient. United minous” and that in-court examination not Scales, v. 594 F.2d 558 Ohio (S.D. 1979). Sates 6,000 us, the case now before jury pages presented their of documents and the trial court allowed testimony regarding and contents. Mr. McMath was eminently qualified appropriately in the and he summaries could have grounded provided jury- assistance in we evidence. note understanding Additionally, that if Mr. McMath had been to testify permitted testimony examination, would have been to cross and his subjected opinions would have been to the evaluation subjected jury’s validity credibility. voluminous and technical nature of the Considering documents, the to examine jury’s ability evi- appreciate dence was without Mr. McMath’s throughly hampered testimony. Thus, I would hold that withhold Mr. McMath’s testimony constituted an abuse of discretion. I would reverse Accordingly, the trial court on this and I would remand with instructions point to allow Mr. McMath about contents testify summaries. I am authorized to state that THORNTON joins Justice

opinion. Brad TELEVISION, BUTLER INC.; HEARST-ARGYLE Television, Inc.;

Arkansas Hearst-Argyle Rhonda Justice 01-126 Court of Arkansas

Supreme delivered Opinion July

Case Details

Case Name: Dodson v. Allstate Insurance

Court Name: Supreme Court of Arkansas

Date Published: Jun 28, 2001

Citation: 47 S.W.3d 866

Docket Number: 00-456

Court Abbreviation: Ark.