*1 CO., BONAR HALSEY INC. v. Chet JIM 683 S.W.2d 84-180 of Arkansas Court Supreme 4, 1985 February delivered Opinion Rehearing April Opinion on denial [Supplemental 1985.*] Newbern, *Purtle, Dudley, grant rehearing. JJ., would *3 Karr, Karr, Martin, Charles for appellant. & Vater by: Skinner, for appellee. Jack when Rick Holt, This case arose Jr., Chief Justice. Jack benefit dystrophy did not for a muscular appear Nelson Bonar, Chet in Fort promoter, Smith. concert concert Co., Halsey agent, suit Nelson’s against booking filed Jim contract, fraud, This Inc., and negligence. for breach of in favor of the promoter from the verdict jury’s appeal R. as it (c) (o) presents us under Ct. Sup. 29(1) before in the law act of the assembly about an questions general We affirm. torts. A muscular The facts summarized as follows: are in Fort Smith festival was planned association dystrophy *4 others, Bonar, an which to include arts the and was appellee, Park, fair, a Kay at and Rodgers and crafts other activities Bonar to receive concert a named was by performer. 25% sales, fees, crafts from and arts and table gate ticket gross Inc., to hire a Bonar Halsey rentals. contacted appellant, for selected for a the concert. Rick Nelson was performer $6,500.00 with fee. The fee was increased twice Bonar’s $8,500.00. until set In each instance it was at approval Inc., for was and sent to Bonar contract prepared Halsey, to Halsey Bonar returned the contract signature. signed his Inc., it for It was and was forwarded Nelson his signature. manager, Greg his never Nelson signed by personal McDonald. $3,750.00 on Inc. Halsey July
Bonar made a deposit
465 27, 1979, the concert based on began promoting The appear. assurances that Nelson would appellant’s 18, for The final concert was scheduled August 1979. 2, sent on contract was to Bonar for his signature August Inc., which again Halsey Bonar and returned who signed forwarded it to Nelson. He still did not sign again concert, contract. Two notified days before McDonald in Inc. who turn Bonar Nelson would Halsey notified at not the concert. Inc. offered perform Halsey Hank Williams, in his and Williams Jr., place, concert played $6,500.00. a fee of contract, fraud, filed
Bonar suit for breach verdict for Bonar The returned a negligence. jury $100,000.00.
The raises numerous on appellant points appeal. will address them which were We the order discussed in the briefs. parties’
The first is that it allegation the trial court erred when submitted the case to the other jury any theory on than breach of contract. The also fraud and appellee alleged in his negligence The instructed complaint. as jury these two theories in addition to breach contract. is apparently arguing that the appellee — pursue his case under two theories contract cannot tort. Inc. Halsey maintains therefore that breach contract is the since facts do not appropriate support theory, allegations argument of fraud and This negligence. without merit.
This court has held that when a defendant denies
liability,
under
two
plaintiff may proceed
consistent
151,
of recovery,
theories
Co.,
Elrod v.
Const.
G&R
275
(1982); Brown v.
Here, and consistent are concurrent remedies transaction, at prove facts same out of the same they arise theories, are positions inconsistent and no least parts taken. are negligence fraud and appellee’s allegations
The they that appellant on factual representations based The states appellee Nelson the concert. would provide Inc., were untrue knew representations that these Halsey he, and on the representations as a relied and that promoter, Halsey as result. He further maintains was damaged Inc., likelihood that Nelson him the duty had a to warn to time him seek a not in appear would sufficient The that performer. substitute and performer fully promote allegations of these offered evidence appellee support of fraud and instruct on theories jury sufficient There was no error. negligence. next court erred
The issue raised is that the trial lost profits, and exhibits of admitting testimony potential future, them as to the jury and past damages submitting conjectural. because such lost were profits speculative that, instructed in favor of the j ury they if ruled were to him an appellee, money award amount him elements of for the fairly compensate following damage: the present lost and of any profits The value
FIRST: in the to be lost reasonably certain of any profits value future. ability loss of any value The present
SECOND: in the future. earn
THIRD: The value of lost. any expenses on the basis instruction objected that there was substantial it reasonably no evidence making made, certain that or will make appellee profit. have Inc., insufficient Halsey maintains the evidence was remove the from the question speculation realm profits We conjecture. disagree.
On appeal light court views evidence most to if favorable and affirms there is appellee substantial evidence to verdict. American support jury’s Const., Fire Ins. Co. v. Fidelity Kennedy Bros. 798 (1984).
670 S.W.2d The offered the appellee following evidence as to lost profits. He maintained that he have profit received a $15,193.75 $15,193.75 if Nelson Rick had appeared. stadium, was figure based on 85% at the with half of capacity to tickets sold adults for and half to children for $7.00 Half of the $4.00. partial was then multi- capacity seating plied by the other $4.00 half These two gross $7.00. 25%, revenues were then added. That total was multiplied by Bonar’s contractual share of the ticket sale. The total $15,193.75. equalled
Bonar’s evidence of loss of reputation supported his own testimony about the he good reputation previously Baker, and the enjoyed of Fred testimony another local Jr., promoter. Baker and other concert also testified sponsors would not hire Bonar again because what with happened the Nelson concert.
Baker testified as to the amount of income the appellee will lose as a result of the his damage to reputation. witness stated that a can promoter to on at least expect put one concert a He year. then figured reasonable income from that concert based on a formula which included the stadium, number seats at the local ticket typical price, and reasonable ticket sales based on an vacancy rate. average He subtracted concert expenses arrived at a new yearly $31,880.00. income the promoter of A second witness testified as to the value present three, five, calculation of that annual income periods over and ten years.
This court has held that:
The rule that damages which are uncertain contin- recovered, can gent not be does not uncertainty apply derived from of the benefits to the value as whether any uncertainty as but performance, certain reasonably If it derived at all. would be benefit the contract been had resulted would have that profits out, is entitled party then the complaining carried recover. *7 121, 195 Russell, (1956), Ark. S.W.2d v. 289
Crow 226 178, S.W. 439 Ark. v. 145 224 Hogsett, Black (quoting (1920)). he damages the amount of
The fact that a can state party sufficient reason is not a only suffered approximately estimates a if from the disallowing damages approximate v. Black be reached. Williams conclusion can satisfactory Here, Co., 144, (1982). Ark. 13 Lumber 628 S.W.2d 275 realized that he would have offered sufficient proof appellee of what that profit and an estimate approximate a profit have been. “must present party profits, In proving anticipated to the jury not leave figures, set reasonably complete any have been profits.” to could whether there as speculate Const., Bros. v. Kennedy Fire Ins. Co. Fidelity American Woodson, 199 Ark. Sumlin v. 211 supra (quoting offered proof Here (1947)). again, appellee 936 the formula with along of lost future profits, the amount to not error It therefore the amount. compute used damages. lost as profits jury submit court is that the trial argument The third appellant’s and fraud in dismissing appellee’s negligence erred not the statute were barred of action because causes limitations. were raised allegations
The
fraud
negligence
to his original complaint.
amendments
appellee
has broad discretion
permit
trial
amendments
court
discretion
and we
exercise of that
sustain the
pleadings
Ark.
it
v. Page,
abused.
278
manifestly
Wingfield
unless
276,
R.
P.
Civ.
15.
(1983);
Since the amendment relates there can be no statute limitations to the amendment objection without See, Brill, undue proof delay or prejudice. Ozark supra; Kenworth, Neidecker, Inc. v. 672 S.W.2d No such proof was offered here. next contends that the trial court erred not dismissing appellee’s cause of action based fraud upon because the complaint and amendments failed to state with particularity the circumstances of fraud. *8 R. 9(b)
Ark. Civ. P. provides: Fraud, Mistake, (b) Condition of Mind. the In all fraud, mistake, duress, of averments or undue influ- ence, the fraud, mistake, circumstances constituting or duress undue influence shall be with stated particu- larity.
The appellee’s amended complaint stated that defendant (the appellant here) made factual reapresen- tations that they had an agreement with and Rick Nelson would him provide for the concert and that representa- “[t]hese tions were untrue and known to be by untrue the Defen- dant.” Bonar the alleged reliance on the represen- factual tations and resulting damages. When the appellant objected to the fraud, at trial proof offered as to the judge ruled that of allegation misrepresentation in the com- original was stated “with plaint notice enough particularity give .. . the and subsequent amendments relate back.”
This court has held that must fraud be specifically that, and alleged facts and constituting circumstances “[t]he the fraud should be set forth. There should some concealment, misrepresentation (emphasis added), ...
470 detriment; misled, . . these . and to his another which Beam omitted). (citations and alleged proved.” must be 253, 532 Co., Ark. S.W.2d v. Monsanto Contractors 259 Bros. in stated had been action We found a cause that 175 its and representation alleged Beam where the complaint contract; on the reliance to the which was material falsity, resulting damages. so and rely; right representation; — Here, that misrepresentation was offered of a proof — contract; was material to which Nelson appear began promoting since Bonar on the representation reliance concert; on Inc.’s Halsey rely, so based right Nelson; with agreement hadan representation was therefore of fraud allegation resulting damages. particularity. stated with sufficient to permit is that it was error The fifth issue raised over areas adjacent appel- courtroom cameras objection. lant’s Ass’n, 609 In Petition Ark. Bar 271 of the Code this court Canon 3 (1980), adopted Judicial and photo- broadcasting Conduct and decided permit also, of trial See proceedings.
graphing Modification Conduct, Code 628 S.W.2d Judicial written consent requirement prior (1982) (removing rule, The final version witnesses). from all parties reads: pertinent part, attorney An made (b) objection timely party *9 . .of the and shall preclude broadcasting. proceedings; been witness who has by an made objection timely to shall informed of the refuse such right exposure, preclude broadcasting. the to make right
The rule also vests in the trial judge fitting to it would be and the final decision as “whether trial of recording permit proper photographing Ark. at 361. proceedings.” 271 to the of cameras he use Appellant argues that objected have and the should therefore proceedings activity these been prohibited. The is correct in his appellant contention an of is by parties that one the sufficient to objection prevent any broadcasting Therefore it was error for photography. the trial judge disregard Canon 3 and the permit broadcasting. When the appellant offered his at objection trial, the beginning of the ruled that he would judge in, stated, allow the cameras but he “If it becomes distracting anyone, should they raise an that time I’ll obj ection at care it take of at that time.” did Subsequently appellant not object. appellant the trial acquiesced judge’s ruling to make
failing further objections course of during instance, In trial. the error was harmless. The rendered bench and bar should be on notice however that this court will closely scrutinize further any violation this rule.
The sixth assignment of error trial court’s denial motion appellant’s for mistrial when it was that revealed two watched jurors television news accounts of the trial to the contrary court’s instructions.
The trial judge has wide discretion in with a dealing motion for mistrial we not do reverse absent manifest Finch, abuse discretion. Garner v.
S.W.2d 304(1981).
We find no such abuse discretion here. The two jurors who watched the news account testified that all they saw was a picture Rick they Nelson and heard that trial was taking place after four The court ad- years. monished the jurors what saw disregard and decide only case on what presented in court. failed to demonstrate any as a result of the prejudice juror’s actions.
The seventh in this issue the trial concerns appeal court’s failure to dismiss cause of action because appellee’s he failed to register with the as a secretary state profes- sional fund raiser and because he contracted allegedly more for his charge than law. This services allowed is also argument without merit. *10 the failure appellee’s is contending
The appellant the contract illegal with statute made to comply is an affirma- of a contract Illegality unenforceable. therefore must be Civ. P. 8(c) under R. which tive defense this issue in a raised The instead pled. appellant specifically for a verdict. motion directed The require- also must fail.
Substantively, argument Ann. in Ark. Stat. are contained by cited the appellant ments — 1980). These statutes require (Repl. 64-1608 64-1615 §§ any fund raiser for as a acting “any person professional Secretary of with the organization register charitable State”, 64-1609; the fund all contracts between require § 64-1610; writing, to be organization raiser § the fund raiser shall allow that no such contract provide These are collected. Id. more of the money receive than 25% violated. the appellee claims the provisions appellant 64- however A fund raiser defined professional § or other any who “any compensation 1608 as person in this state or manages consideration conducts plans, charit- any or on behalf of contributions solicitation contri- soliciting was not The appellee able organization.” tickets, butions, selling he a concert and was promoting organization. charitable benefiting with proceeds to him. is therefore inapplicable act the trial court’s of error concerns The next assignment for summary judgment. motion failure grant appellant’s which written contract was based on the The motion claim, controversy arising that any dispute, provided international the contract shall be arbitrated under of Musicians. Federation board of the American executive where case as a Louisiana authority cites disagreement for a concert and Nelson failed appear d/b/a/ Hodges, court order. submitted to arbitration by was al, Nelson, (M.D. # et South v. Rick 79-605-B Old Jamboree distinguishable 1981). That situation Aug. La. however, Louisiana, written signed in that in there was a had the who to be resolved concerned and the issues contract Here, an merely there was for Nelson. authority sign
473 written contract and an oral contract between the unsigned and the which breached. appellant appellee, appellant sued for oral appellee agreement whereby breach of the Nelson appellant promised Rick for the concert. provide It written contract which contained the provision for arbitration. That calling therefore provision inappli- Furthermore, cable. of case the law presents questions torts which are not to written arbi- subject agreements trate. See Ark. Stat. 34-511 Ann. (Supp. 1983). §
The ninth issue is whether the trial court erred in admitting video of tape the muscular promotions association dystrophy because it was so irrelevant and as to prejudicial its value. outweigh probative festival, The evidence consisted of interviews about the news stories and public service announcements. The judge admitted the evidence for the of purpose proving promotion efforts appellee.
Rulings on the are relevancy evidence discretionary with the trial court and we do not reverse absent an abuse State, discretion. v. Kellensworth Ark. 644 278 (1983). 933
No abúse discretion is demonstrated. The final argument presented is that the trial court should have his granted motion for judgment notwithstanding verdict because (n.o.v.) the verdict was for excessive damages and was apparently influenced by passion and prejudice.
We uphold the denial of a motion judgment n.o.v. “if is any there substantial evidence to support jury’s verdict.” Adcock, Arkansas & Light Power Co. v.
104, 661 (1983). S.W.2d 392 judge trial is to set aside a verdict jury if he it only finds to be against clear preponderance evidence. v. Pilkington Riley Paving Co., S.W.2d 570
We have on previously commented several aspects 473-A
evidence, based admissibility damages on the particularly find that there therefore future. We on lost past profits, the verdict. evidence to support was substantial Affirmed. Rehearing on denial Opinion
Supplemental 15, 1985 April delivered *12 Holt, Jr., Chief The trial court com- Jack Justice. mitted error of broadcasting portion a certain permitting trial in violation of Code proceedings Canon Conduct. When an was made at the objection Judicial trial, he allow the beginning ruled that judge in, stated, cameras but he “if it becomes distracting time I’ll anyone, they should raise an at that objection of it at time.” were take care there Subsequently
473-B objections. no We held that unanimously in the trial acquiesced court’s to make ruling by failing further objections during the course of trial and that in instance, the error was rendered harmless. We further advised bench bar that should on notice that this court will closely scrutinize any further violations this rule.
On some of rehearing our members have their changed now minds and think that violation this rule mandates error, reversible without exception. majority deeply concerned over the trial court’s
obvious violation of Canon 3 which reads pertinent part: an “(b) objection made timely shall by party attorney preclude broadcasting ... and an proceedings; objection made timely by a witness who has been informed right to refuse such shall exposure, preclude broadcasting.” the rule
Although also vests in the trial the right judge *13 to the make final decision as to “whether it would be fitting and to proper permit and of photographing the recording 361, trial proceedings,” Ark. 271 the trial court is without discretion when instance, timely is In objection made. this the made timely objection.
It is the opinion that the majority warning State, contained in Ford v. Ark. 663 (1982), 276 3 S.W.2d where we said: would, willful disobedience of this Canon no
[a] doubt, be dealt with in an manner which appropriate could sogo far as to cause a retrial the case or result in other action by this court
does not mandate automatic reversal. Had the record this case hinted of to any prejudice appellant by presence courtroom, of cameras within the reversal would be in order. Absent any prejudice, to reverse and punishment remand as to the trial court would not time expense and justify all parties and court system to this matter. relitigate
473-C is a drastic a mistrial said that repeatedly have
We exists. remedy no other when granted to be remedy, only Hickman, Son, 665 Inc. & v. 282 L. Cole L. to our decision. apply That is a fair standard (1984). A litigant to be prejudicial. is error presumed No longer — State, v. one. Berna trial not perfect to a fair entitled Here, been done. 563, 670 has justice S. W.2d bar on the bench and placed initial we opinion In our violations scrutinize further closely notice that we would court, we of the attitude light present In this rule. shall opinion is safe to say supplemental think it not of this rule will violation notice that further constitute may reversal well be any degree, be tolerated automatic, possible scrutiny than a matter rather prejudice. denied.
Rehearing Dudley Newbern, Purtle, grant. JJ., Hays Hickman, concur. JJ., a hard Before we take Hays, concurring. Justice, Steele to cameras pertaining on of the rule line the enforcement itself, courtroom, now in examine the rule we ought A is in order. rule that if relaxation its fifth see some year, no rule is almost litigants approval opposing requires all, ain lawsuit teaches that adversaries at experience as on rarely agree anything. left sensibly of states have
An number overwhelming be, subject where it should the decision cameras regarding National (See of the trial judge. the discretion Journal *14 1, 5, 9, Courts, list of for a p. for No. Center State Volume the six coverage some states media forty permitting to We ought of both parties.) states requiring approval to civil with respect at least joining majority, consider trials.
Hickman, J., agrees.
473-D Newbern, Justice, should dissenting. Rehearing David I was uncomfortable form the outset with the granted. approach by point taken our decision on the of courtroom television. The of our essence was that it was not opinion reversible error to allow television in the photography courtroom after timely a but that it should objection never again be allowed. While I can an which appreciate opinion rule, warns we I may someday a cannot an change appreciate we opinion saying may a someday rule. enforce The petition made me I rehearing wish had dissented to the opinion. petition points out correctly a lawyer ought not be to required object more than once rule, to a prospective clear of violation a when the especially rule says timely objection all that is I required. am troubled fact that the between colloquy counsel and the court which was entire of basis the appellant’s However, argument on this point was not abstracted. as the objection and court’s are ruling recounted briefs, arguments in both parties’ as well as in our I opinion, will not be dissuaded from by that lapse expressing my concern. to
According the briefs of both counsel for parties, on the objected the trial morning began to having the trial televised. Rather keep than trial from being televised, the judge invited counsel again if the object cameras became distracting.
The original modification of
Canon
the Code
3(A)(7)
Conduct permitted broadcasting
photo
Judicial
certain
graphing
court
proceedings upon written consent
all participating
Re:
attorneys, parties and witnesses.
Association,
Petition
Arkansas Bar
(1980).
S.W.2d 28
The Canon was modified
again
permit
these activities unless there is
objection timely
"an
made
party
...”
attorney.
given
sole reason
modification was
it
that was "too
burdensome
the trial
court and to the interested
written
people
require
consent.” Re:
the Code
Conduct
Judicial
Modification
Relating
6-
Pro
Broadcasting
Photographing Court
ceedings,
As this
change
was made mentioned, previous of the spirit to alter the it nothing did very was protective which subject order on curiam per the rights to secure while also attempting participants trial public. needs of press our that with fact seems satisfied The majority not that we will warning judges to trial gives opinion objection over cameras to admit television them permit In warning? that give must we many How times the future. criminal State, (1982), v. Ford said, case, we prevents Conduct of the Code of 3(A)(7)
Canon Judicial the consent in the courtroom without cameras relaxed since somewhat . . Our rule has been accused.. effect into The rule was not placed of this trial. date the courts. ignored by to be doubt, would, no willful this Canon A disobedience which could go manner be dealt with an appropriate in other case or result to cause a retrial of the so far as 111-112; at Ark. at 663 S.W.2d by this court. (276 action 11) feelings our expressing
We went trouble until the no was made in a in which objection case strongly be should for We except sentencing phase. trial was over indeed concerned here where the objection much more warning. is issue another but all we do timely, out points of the majority The supplemental opinion which we and a result reached that the has been tried case “time all expense should not overturn because unjustified. system” and the court parties If we in this assessment. position appellant’s ignored considerations, the need to reverse because of those refused would vanish. this court counsel the appellant’s In our we said original opinion 473-F *16 in the court. The next sentence had the acquiesced ruling said this instance the error was rendered harmless.” In “[i]n saying seems be supplemental opinion majority must in demonstrate shift “prejudice.” rationale is subtle but needs to be with. dealt
A denied a trial need show no litigant public prejudice State, 47, 398 for reversal. Sirratt v. Ark. 63 (1966). 240 State, 103, 679 See also v. Taylor S. W.2d 797 Neither should a who has in the litigant objected cameras Counsel, courtroom have to show made prejudice. having an objection, should not put be in the position having constantly observe for jurors, distractions caused to witnesses and the court by the of television presence cameras. Counsel should allowed to devote his her entire effort to the presentation of the client’s case. The record here showed jurors watched news of the trial. reports We cannot know what prejudice have been caused. The may is that point the rule requires automatic exclusion upon so objection that counsel will in not later be placed position finding which is so urging “prejudice” elusive obviously context.
In KARK-TV Channel Inc. v. Lofton, (1982), S.W.2d 798 we the balance struck expressed Court, us, U.S. Supreme an followed between the protection litigants and the system vis a vis judicial protection rights press and public information generated by trials. I believe has been path charted, well I and do not believe we should from it. If vary do, we it should be by taking a new direction consciously and not through the process odious of erosion which will violations, result from and then more violations warnings and more warnings.
I dissent from respectfully the refusal rehear- grant I would ing. grant for new trial. rehearing remand
Dudley Purtle, JJ., join this dissent.