*1 et al. POLYESTER, BURNETT, INC. Frank NESTE 214 S.W.3d CA 04-1186 Court of of Arkansas Appeals 5, 2005 delivered October Opinion *3 LLP, Price, A. for Wright, Lindsey &Jennings by: Troy appellant. L.L.P., Garvin, Mashhurn, & Carlton Mashburn by: Agee, John III, and Alan & RobertL. for Agee; Harper, by: appellees. andJones Jones Olly Neal, This is from a verdict Judge. jury appeal Frank Burnett and Dennis awarding appellees Joslin 2000, Inc.,1 $2,500,000 in the sum of for breach of Company damages on a defective used to seal boats. Neste warranty product Appellant Inc., raises four amendment of Polyester, points concerning Viper’s the to conform to the the trial court’s of its proof, striking defenses, affirmative the trial court’s failure to submit the case to the on and the trial court’s failure to award a new interrogatories, error, trial. no we affirm. Finding original was Inc. board of directors a Boats, plaintiff Viper adopted calling assignment granting
resolution for the execution of an Burnett and Dennis Joslin right, 2000, all and interest in the lawsuit. Inc., title, ofViper’s Thereupon,Burnett Company the and Dennis were substituted as real interest. For parties Company Joslin convenience and we will refer to clarity, appellees Viper. is manufacturer recreational boats.
Viper fiberglass the Neste manufactures clear coat used to the finish Viper protect of its boats. From 1994 until all April Viper purchased June of its clear coat from Neste. In informed Neste April Viper that all coat since of its clear 1998 was defective. purchased April had manufactured 784 boats defective Viper using product and, 1999, had received Neste by May twenty-seven complaints. for the of these boats. paid replacement twenty-seven Viper thereafter determined that the only remedy way remaining defective boats was to them. Neste refused for the replace pay boats. replacement remaining 23, 2000, On October filed suit against alleging warranties, breach of and breach of express implied negligence, contract, and fraud.2 that Neste was liable for alleged all 784 boats and that its could exceed replacement $10,000,000. In both the and first amended complaint, with the clear coat Viper alleged threatened to problems its business Neste denied destroy reputation goodwill. allegations.3 conference, At a November pre-trial economist, Marsh, its disclosed Robert
attorney expert “jay” announced that was new pursing approach damages. That was to seek for its loss of business and approach loss of future Alfred then-attorney, Angulo, recognized that this announcement of the case and changed Viper’s theory notice that on placed loss seeking damages *4 of its entire business. to this Angulo object change theories, nor did he move for a continuance. conference, the November Following a order scheduling was entered that was to amend its Viper providing discovery so as the substance of Marsh’s responses provide opinion by 2004. was to disclose its February with together expert, the substance of its March testimony 2004. Neste expert’s by Schwartz, disclosed its Richard after deadline expert, order and did not Schwartz’s scheduling provide The report. originally Suit was filed in Baxter of business, and County, Viper’s place principal later transferred to Sebastian of business. County, principal place against Neste also filed of manufacturers one of the third-party complaint of coat. its clear This was later dismissed components third-party voluntarily by Neste. and witness lists that all exhibits order also scheduling provided motions, All except March 2004. to be were exchanged by with all motions limine, filed were to be by May motions in 25, 2004. in liminefiled May as to liability. moved for summary judgment partial Viper motion, entered an order was Neste failed to
After respond The as to the issue of liability. summary judgment granting Viper tried. was to be issue of damages Later, on the moved for judgment summary timely that, with as a result of of problems damages, alleging coat, until ceased business declined
Neste’s clear Viper’s affidavit Marsh’s The motion was 2003. supported operations and $6,452,259. at economic loss that he had calculated report, stating denied. This motion was was as damages After the motion for summary judgment denied, motion in limine seeking Neste filed a prevent timely Marsh had no at trial because personal Marsh from testifying he was measure of the matter and because addressing knowledge In an that Neste alleged improper inapplicable. damages brief, measure of Neste argued proper accompanying fair market value of the business was the difference in the damages the motion. the event. The court denied before and after trial, to limit made an oral motion At Neste also seeking and amended mentioned in its not the lost discussed were specifi- arguing complaint, on the issue of trial court reserved ruling cally pled by Viper. to instruct the which it was going type damages upon on the different could to evidence and noted that Neste object of damages. types addition, trial, filed an answer to
In during had new claim for asserting pled special damages, Ark. R. for lost the issue of required by profits, defenses such as also asserted other Civ. P. The answer 9(g). invoices, release, a clause in the limitation of damages pursuant a claim which and failure to state upon party plaintiff, improper as un- strike the answer can be moved to relief granted. Viper the answer stricken. The trial court ordered timely. *5 the return a verdict on to have jury special sought verdict. Neste’s while sought general
interrogatories Viper instructions were as follows: proffered find defective you
3.Do that the clearcoat sold Neste gel Boats, of the was the cause demise of Inc.? proximate Viper _YES _NO find is
4.Do the entitled to recover from the you plaintiff Boats, have defendant lost that been suffered profits may by Viper _YES _NO Inc.?
5. What amount of lost profits, you if do determine the past any, should of the plaintiff defendant to the because demise of pay Boats, $_ Inc.? Viper What 6. amount of future lost if do determine you profits, any, the defendant should to because demise of pay plaintiff Boats, $_ Inc.? The trial decided court without to the case submit to the explanation on a verdict trial form. The court instructed the jury general also jury that it should consider two elements of the amount of lost damage: loss, or economic from decline sales and the profit, any business; cessation of its amount and the of in value of loss due to business assets its of business. cessation returned a verdict of favor general $2,500,000. awarded of was entered on the Judgment verdict on jury’s 2004. filed motion for timely June trial, the verdict or a judgment new that notwithstanding alleging failed sufficient evidence to present legally support or to award show a causal link damage between Neste’s actions and or demise its business. motion Although for the verdict was deemed denied judgment as of notwithstanding the trial court an July entered order the motion denying on 2004. This followed. August appeal Neste raises four issues on that the trial (1) court appeal: erred in not with Ark. R. Civ. P. requiring Viper 9(g) and in permitting Viper present concerning had not been raised (2) trial pleadings; court erred in motion to amend the granting Viper’s pleadings conform to the and in Neste’s answer to the claim proof striking had special damages special damages been raised amendment to the trial court complaint; (3) erred in Neste’s verdict form overruling general verdict on refusing requested special interrogatories;
419 to erred refusing grant cumulatively trial court (4) the the error in instructing jury, on the new trial based Neste a and the irregular- the amount recovery, in error assessing jury’s amendment theories without from change Viper’s resulting ity to the complaint. erred in the trial court Neste argues
In its first point, lost profits evidence to be concerning Viper’s presented permitting because lost Ark. P. which R. Civ. 9(g) are damages profits special with that did not to be pled specifically requires We disagree. requirement. were or lost
The
whether Viper’s
profits
dispute
parties
However,
answer the
we need not
were not
damages.
special
or whether
are
damages
of whether
profits
special
questions
because,
to
damages
was sufficient
special
plead
the
we hold that
are
damages,
that lost
special
assuming
profits
and, thus, the
the
without
tried
issue
parties
so as to
to conform to
allege
amended
proof
properly
to be
requiring special
damages.
purpose
La.
Co. v.
at trial. Arkansas Gas
is to avoid surprise
specifically pled
1083,
Bros.,
We
to conform to
were amended
proof
pleadings
and trial testi-
affidavit
Marsh’s summary-judgment
presenting
Greenbrier,
Ark.
561
In
mony. Harrington City of
decide,
assumed, without
court
having
302 (1978),
supreme
in his
a new cause of action
summary-
that a
could assert
plaintiff
affidavit,
Bondsv.
his
See
without amending
complaint.
judgment
Littrell,
Fire &
National Sec.
(1969);
247 Ark.
446 S.W.2d
Shaver,
Neste failed to testimony any object its lost had failed to the basis that plead specifically motion on dam- summary-judgment response issue was not indicate that the properly lost-profits ages When Neste Marsh’s trial sought pled. prohibit testimony limine, a motion its motion did brief not through supporting Instead, raise the of the lost being properly pled. It Marsh’s was not until Neste’s merely qualifications. questioned at oral motion trial to limit men- seeking *7 its and tioned in amended that the issue of lost not was raised. How- profits being specifically pled Viper ever, trial court allowed Marsh to that Neste noted testify could to on the different of The object types damages. result the trial of court’s was to Neste to make a ruling require to at Marsh’s trial. See Casteelv. State objection specific testimony Co., Farm Mut. Auto. 66 Ins. Ark. 989 547 App. (1999). trial,
At
Neste
Marsh
when
was tendered as
objected
an
witness on the basis that he lacked the
to
expert
qualifications
to
as
issue in
case. The trial court overruled the
testify
any
Later,
Marsh as an
as Marsh was
objection
qualified
expert.
about to
his
on
give
lost
on
profits,
opinion Viper’s
objected
of
the basis
“the same
we made before the court before
objection
as to the
of this
and the measure of
appropriateness
testimony
The trial court overruled the
and Marsh
damages.”
objection,
to
his
as to
lost
proceed
give
opinion
objection
profits.
that
raised went
to Marsh’s
as an
and the
qualifications
expert
i.e.,
measure of
whether the measure of
appropriate
damages,
value,
is the
difference
fair market
not
that
lost
Therefore,
had not been
profits
without
specifically pled.
now
have,
on
trial
court could
being urged
appeal,
under Ark. R. Civ. P. 15(b),
considered the
properly
pleadings
Moreover,
amended to conform the
to
there
claim
is no
of
proof.
fact,
Neste. In
Neste conceded at oral
that
it
surprise
argument
could
claim
not
based on
statements at the
surprise,
Angulo’s
2003
November
conference.
the introduction
pre-trial
Permitting
of
on an issue
raised
proof
constitutes an
pleadings
Wood,
consent to trial
on
issue. Ison
implied
LLC v.
Props.,
Ark.
Neste next that it was because the argues prejudiced trial refused court to allow to submit its affirmative defenses to above, As noted lost evidence concerning profits. a November at lost that it was seeking disclosed at that or seek a continuance object hearing. pretrial 6, 2004, to move for Rather, until Neste waited May time. until the day defenses not file its affirmative and did continuance from its own failure Neste comes trial. Any prejudice and not from and deadlines order court’s scheduling with the trial it was seeking failure properly plead by Viper any of a the striking pleading decision A trial court’s regarding Ison of discretion. of an abuse in the absence not be reversed will abused its discretion that the trial court cannot We say supra. Props., raised on the morning defenses first Neste’s affirmative by striking of trial. erred in the trial court issue is whether
The third on the verdict interrogatories to submit rejecting request whether the trial court’s discretion It is within to the jury. verdict or on interrogatories. on a a case to the jury general submit *8 275 Ark. P. v. Continental 49(a); LeasingCorp., Ark. R. Civ. Hough should show 340, 19 (1982). party 630 S.W.2d complaining submit the in abused its discretion failing how the trial court Williams, Co. v. National Sec.Fire & Cas. interrogatories. proposed 182, The form of the 811 (1985). special 16 Ark. 698 S.W.2d App. the trial court’s is also within submitted to the verdicts jury P. 49(b). SeeArk. R. Civ. discretion. in did not abuse its discretion
The trial court
“The essential
Neste’s
interrogatories.
rejecting
proffered
is to test the correctness
be served
by interrogatories
purpose
of the
from the
its assessment
verdict by eliciting
jury
a general
in the
controversy
determinative issues
given
presented
Coli
at trial.” Cincinnati
context of evidence presented
Riverfront
Co.,
415,
see
418
seum,
(Ohio 1986);
504 N.E.2d
Inc. v. McNulty
Blackshear,
David
(1967);
Ark.
770 N.E.2d
(Ohio
2001).
App.
interrogatories
submitted omitted some
elements of
claimed by
damage
instructions,
Like
should accu-
Viper.
special interrogatories
reflect the evidence and the
claimed. McDaniel Bros.
rately
Co.,
v.
Const. Co. Mid-State
252 Ark.
S.W.2d
Const.
482
825
Farms,
also
Harvestore,
see
Pineview
Inc. v. Smith
298 Ark.
(1972);
78,
Affirmed.
Vaught, J., agrees.
Hart, J., concurs.
Josephine Linker Hart, I that this Judge, agree concurring. affirmed, case must be but write I because separately respect- with the fully disagree majority’s analysis concerning Polyes- ter’s that the trial court erred argument con- admitting cerning Viper’s profits theory recovery *9 are failed damages,” with “special Rule Rules of Arkansas Civil Procedure that its 9(g) damage be I cannot theory specifically agree pled. Viper’s pleadings with Rule or that “substantially 9(g), this complied” point barred he somehow failed to object expert testify- about lost ing fails because has argument simply long been settled law that the to be purpose requiring special is to and where no is and no pled prevent surprise, surprise pleaded issue, time to meet the there is no error. Arkansas requested prepare Gas Bros., Louisiana Co. v. 250 Ark. McGaughey Neste stated unequivocally At oral 754 (1971). arguments, therefore, is there damage theory; it was not surprised reversible error. no
I concur.
Rebecca CHANDLER
LICENSING
ARKANSAS APPRAISERS
BOARD
and CERTIFICATION