*1 Hall, and toward unfair prejudice prejudice although trial concluded it was the result of an “oversight.”
The facts of this case show that a heinous and revolting crime cannot, however, was committed. I condone the conclusion that we can overlook the serious violation of rights Hall’s because of the nature of the or solely crime because the against evidence him strong or even “overwhelming.” Any defendant is entitled to Rules, fair treatment as it is out in spelled our regardless of strength the evidence him or against her.
If we begin disregard our Rules which we explicit purport individuals, to establish protect rights the erosion of liberties will personal longer escalate. We will no be able to claim with degree of be honesty “government of laws.” Hall should given a new trial rights which his are respected regardless of the nature the crime with which he charged regardless of the strength evidence him. That will be a small for the price pay liberties we as a enjoy result of fairness in the courtroom.
I respectfully dissent.
C.J.,
J.,
join
in this dissent.
Holt,
Dudley,
RLI INSURANCE
COMPANY
Jackie Sue COE
90-331
Supreme of Arkansas Opinion July delivered [Rehearing September denied 1991.*] [*] Brown, J., not participating.
Hubbard, Patton, Peek, Roberts, & Haltom William G. by: Greer, Bullock and John B. for appellant. Patton,
Nicholas H. for appellee. Corbin, Donald L. Justice. RLI Appellant, Insurance $8,002,178.15 seeks to set Company, aside an judgment entered 11, 1989, in the Circuit Court of LaFayette County favor of appellee, Jackie Sue Coe. from the trial Appealing court’s denial of its Motion for Relief from Judgment and its of error. rial, assignments four makes T for New
Motion and affirm. arguments presented no merit We find other and two 12,1987, Beaty, appellee, Brad On December Lewisville, Arkansas, to traveling Taylor, from were passengers Arkansas, a half before was an hour and truck. It in Beaty’s on their the four were to take place wedding appellee’s was to ceremony performed. where the church to the way hit a center line and crossed the The truck driving. Beaty 1,1988, On April the three injuring passengers. bridge, in the Beaty filed suit other passengers and the two the wreck was alleging County, of Lafayette Circuit Court and one of the Beaty and omissions. negligent his acts caused other and the residents. Appellee were Oklahoma passengers sister, residents. Appellee were both Arkansas her passenger, ex- and future medical damages past alleged she suffered anguish, and mental suffering past and future pain, past penses, in the amount disfigurement, earnings, loss of and future $725,000.00. insurance liability was covered aby policy
Brad Beaty Inc., re- (hereinafter Insurance Company, issued Farmers $250,000.00 per limits “Farmers”) having ferred to as issued insured on a separate policy was also a named He person. father, which provided William R. his Beaty, by appellant *4 dollars. an additional one million for coverage up “umbrella” carrier, Laven- Farmers, G. William as primary employed made was notified of the suit and defend the suit. Appellant der to to it Lavender would forward with Farmers that agreement an to the loss. On relating correspondence of all and pleadings copies 15, 1988, rights” of forwarded a “reservation August appellant 20,1989, filed appellant William R. On Beaty. January letter to a declara- seeking William R. Beaty, in Oklahoma against suit for policy it was entitled to rescind tory judgment made in the application. material misreprentations relevant to the case all correspondence Lavender forwarded going determined that no answer was until he appellant William R. action filed to the declaratory of interest due to a conflict He then notified Farmers that Beaty. The with appellant. be able to communicate longer he would no Lavender to appellant last forwarded correspondence 31, dated 1989. January 1989, 23,
On March a trial was held at and which evidence 20, 1989, testimony were received On court. a April along filed with of fact and findings conclusions 10, law. an Following August 1989 Motion for of Final Entry court, filed Judgment by appellee, to Ark. R. Civ. P. pursuant 54, judgment. entered such a It was filed August 1989. 25, 1989,
On filed Motion to Intervene appellant for limited a Motion filing for Relief from purpose Trial; and New Judgement for same day filed Motion for 3,1989, Relief from and New Judgment Trial. On November filed a appellant Supplemental Motion to Intervene Motion for Supplemental Judgment. Relief from On November 6, 1989, a hearing at following which appellant presented testimony and motions, evidence in support its the trial court intervene, entered an order allowing denying appel- lant’s Motion for Relief from Judgment, making various legal factual and findings of its It is support rulings. from the adverse rulings included in the November 1989 order this appeal comes.
I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE PROCEEDINGS UPON WHICH JUDGMENT WERE HAD DENIED APPELLANT DUE PROCESS OF LAW. cites the Fourteenth Amendment to the United
States Constitution and
Davis University Arkansas Medical
Serv.,
Center
Inc.,
Collection
There us, however, are certain bench marks to guide *5 Mullane Co., 306, v. Central Hanover Trust 339 U.S. 70 652, S. Ct. L. 94 Ed. (1950), 865 case by often invoked later said opinions, that have ‘[m]any raged controversies about the cryptic abstract words of Due the Process Clause but there can be no doubt that at a they minimum 342 life, liberty by property that deprivation
require for notice opportunity adjudication preceded case.’ to the nature of the hearing appropriate Davis, S.W.2d at 161. Ark. at 559 Mullane it can be language asserts that from the Appellant in the state courts litigation in the context of civil seen that Arkansas, adjudi- notice of due of law process requires prior both hearing, being appropriate cation and prior opportunity that, light contends the nature of the case. Appellant case, notice nor the required of this neither the required nature was afforded. hearing the time of the March argues that at
Appellant an interest adverse hearing, having it was “the only party was hearing, Coe” and as it had no notice of the Jackie Sue due of law. relies on Ideal Mutual Ins. denied process McMillian, (1982), 631 S.W.2d Co. case, that Ideal Insurance making argument. Mutual crashed, killing insured an that airplane pilot Company McMillian, After the estate was injuring passenger. pilot’s closed, McMillian negligence action was filed estate of the A statute of nonclaims barred action pilot. was The to the extent that insurance available. except liability sheriff was administrator. He at- county appointed special notice of the suit to Ideal Mutual Insurance give tempted letters to both the for the owner of by mailing attorney Company and Ideal Mutuel’s The received issuing agent. attorney plane However, the letter addressed to him. the letter addressed to the issuing issuing agent was addressed and the agent incorrectly receiving denied ever it. The trial court found the notice to the and, insurance was sufficient as the was never company complaint answered, judgment against entered a default the estate of After default the insurance learning judgment, pilot. 24(a). filed a Motion to Intervene under Ark. R. Civ. P. company The motion denied. It then filed a Motion to Set Aside the Default insufficient notice of the Judgment alleging proceeding. The trial court denied motion also. On this court that appeal, statute, under the finding although reversed and remanded defendant, the estate was the named the insurance company the case interested in the outcome of only party financially *6 to 24(a) Ark. R. Civ. P. could have intervened as a pursuant right. matter of We held that because the insurance did company suit, notice Aside not receive the Motion to Set the Default should and the insurance should Judgment granted be company be allowed to intervene. ' Mutual,
In Ideal the insurance was not company bar, the been at given notice action had filed. the case appellant action; knew of of pending complains the it not admittedly trial, notice of the March what it receiving refers as Although “the had a financial in adjudication.” interest appellant case, outcome not have may given been notice the trial, case had been set for it had notice of the in that proceedings it knew the lawsuit was Like the insurance pending. company Mutual, it Ideal also could have intervened a matter right, as intervened, Ark. R. Civ. P. Had it 24(a). it so could been have own present protect its interests. received
Appellant from Mr. Lavender until correspondence and even after time filed the judgment action in declaratory Oklahoma, placed which it itself adverse position Brad Beaty. Among the forwarded to correspondence suit regarding pending was a letter from counsel to appellee’s Lavender, letter, Mr. mailed late in 1988. In the offered $1,250,000.00. to settle the lawsuit for letter Accompanying the “a copy videotape, the life of Jackie Coe.” day Sue Notice that the lawsuit is the notice pending required due Mutual, satisfy process requirement. See Ideal supra. had not notice the lawsuit only pending, but also notice primary coverage be would exhausted. probably
II. THE TRIAL COURT ABUSED ITS DISCRE- IN TION DENYING APPELLANT’S FOR MOTION RELIEF FROM JUDGMENT BECAUSE THE RE- LIEF REQUESTED WAS NECESSARY TO PRE- VENT THE MISCARRIAGE OF JUSTICE. Order,
Ark. R. Civ. P. Relief Judgment, from Decree or states in part:
(b) Limitation. correct error Ninety-Day To a decree miscarriage justice, mistake or to prevent or circuit, or chancery may order of a probate *7 the court or any party, or set aside on motion of modified within ninety days without notice to any party, with or with the clerk. been filed having its hearing that at the March maintains Appellant between the before parties was no justiciable controversy there and, thus, used of the court as machinery system the court for later extortion a It against non-party. an instrumentality was the of the trial is obvious object maintains that such extortion in the of a following: acquiesced entry from the the parties damages for more than ten times the judgment pleaded; appellant notified of the of the at the time it was entry judgment was not entered; and after of the exactly thirty days entry almost for over dollars judgment, eight sued million assignment rights on the basis of an she received from Brad miscarriage claims these events resulted in a Beaty. Appellant which have been the trial court’s justice should prevented granting relief to Rule 60. pursuant
The limitation on the exercise of the to set only power judgment aside the to Rule 60 is addressed to the sound pursuant Johnson, 269, 599 discretion court. 269 Ark. Massengale S.W.2d 743 (1980). finding maintains the trial court’s that it failed to
Appellant make a facie case cause showing any original defense prima of action as Rule Rule 60(d) 60(d) required inapplicable. as follows: provides
(d) judgment Valid Defense to Be Shown. No defendant, a unless it was rendered before the trial, action stood for shall be set aside under this rule unless the defendant in his motion asserts a valid defense to and, the action makes a facie upon hearing, prima showing of such defense. contends “the action” in this case includes what
Appellant entered, were at the judgment time the claims of pending therefore, the other two hearing of March passengers, of the action. maintains comprised only part Appellant that as the meritorious defense is establishing a requirement where the from which inapplicable relief is sought “was stood rendered before the action for trial” and the trial,” case at bar was rendered before “the action stood for of a facie requirement prima showing of valid cause of action is inapplicable. fails, however, support contention
with convincing either we argument authority. As have said times, of error which many assignments are unsupported by convincing argument or will authority, not be considered on unless it is appeal without further research apparent they are Harrison, 474, 780 well taken. Goodwin v. S.W.2d 518 (1989).
Alternatively, appellant contends the requirement *8 establishment of a facie case of a prima meritorious defense was met. It contends that in its Motion for Supplemental Relief from Judgment it that Brad pleaded had a valid to Beaty defense the claim of in that appellee she was a participant along with Beaty in joint a within the enterprise of such contemplation Arkansas Co., 86, 115 cases as Lewis v. Chitwood Motor 196 Ark. S.W.2d 1072 (1938).
This Johnson, 61, court in Tucker v. 275 Ark. 628 S.W.2d 281 (1982), defined “meritorious defense” as:' (not allegations) sufficient to the justify refusal
[E]vidence grant a to directed verdict the to party required show the words, meritorious defense. other is not defense, necessary a prove merely but present sufficient defense evidence to a determination the justify of issue aby trier of fact.
Tucker,
66,
In Neal 97, v. J.B. Hunt 305 Ark. Transp. 805 S.W.2d (1991), 643 this court considered whether the trial a giving court’s on jury instruction joint was error. In enterprise Neal, both the driver of a car and the passenger brought a negligence action against a trucking one of the company, alleging trucks ran off company’s them the The jury road. found in favor of the trucking On company. the driver and appeal, passenger argued it give was error to a joint venture instruction absent a of showing some business common to relationship purpose 346 of a finding enterprise requires a joint We stated that
them both. the govern to direct and movements right “an showing equal of object to the common respect of each other and conduct Neal, at S.W.2d undertaking.” of the purpose the instruction joint enterprise found basis for at 645. We the said would have turned the driver. She she testimony if had asked. We stated over to the he back driving passenger issue negligence to raise an the evidence is sufficient assuming on vehicle it remains the same of the driver of the on the part vehicle, the of an giving control right matter error; the essential ques- not joint instruction on enterprise to have can be found parties by implication tion whether vehicle, and in management in the to an voice agreed equal for jury. is an issue of fact the normal and usual case bar, joint case asserted the defense of In the at its Motion Supplemental November enterprise However, the record is devoid of Judgment. Relief from to direct and right govern evidence that had an equal and conduct of Brad “in the common Beaty respect movements no Because there is object undertaking.” purpose issue, we say a determination cannot justify evidence trial its to set aside the by refusing court abused discretion Judgment. Final III. *9 ITS
THE TRIAL COURT ABUSED DISCRE- FOR TION IN DENYING APPELLANT’S MOTION BECAUSE RELIEF FROM JUDGMENT UNCON- WAS PRACTICED BY SCIONABLE FRAUD JACKIE COE IN OBTAINING THE SUE JUDGMENT. to Ark. Civ. P. R.
Appellant argues pursuant trial should have aside the 60(c)(4), judgment court set her The through fraud counsel. by practiced appellee, of relevant Rule 60 as follows: portion provides Other (c) Setting Judgment, Grounds for Aside Default After The court in Judgment, Ninety Days. Than . has judgment, judgment.. a other than a default which made after power, been rendered or order shall have
347 ninety (90) of after the of expiration days filing said court, with the clerk of the to vacate or judgment modify or such order: judgment
(4) For fraud the successful practiced by party obtaining judgment. Davis, 473, relies on Davis 291 Ark.
Appellant 725 (1987), S.W.2d we which construed Rule 60 and held that “fraud” sufficient to of setting aside a is: compel which, of duty breach or legal equitable of irrespective
[A]
feasor,
the moral
of
guilt
the fraud
the law declared
fraudulent because
its tendency
to deceive others . . .
Neither actual dishonesty of
nor intent to deceive
purpose
is an essential element of
fraud.
constructive
Davis,
at
Ark.
725 S.W.2d at
Lane v.
(quoting
Rachel,
patent, counsel, and the actions her appellee, by through evidence this breach of The duty. alleged actions of appellee upon which bases its argument 1) hastily contriving are: hearing on a case knowing only with an appellant, party Coe, interest adverse to had not been given notice of the hearing defend; and thus 2) would not have opportunity misrepresent- ing to the trial court at the commencement the trial that there agreement,when was no settlement in fact the entire controversy Coe, between Brad Beaty, Farmers was settled and Beaty agreed had to assign to Coe all he had rights against appellant; and 3) with to induce the trial conspiring Beaty enter an excessive in reliance on and other reports material therefore, which were never introduced into evidence and were not a part the record.
We cannot say action of and any appellee, by through her attorney, in any deceived way light appellant. were time, attorney of appellee’s the actions at
circumstances and medical expenses had past interest. Appellee in her best taken medical expenses. additional substantial incur certainly would going Her interest in her career. to pursue not able She was had notice is apparent. with the lawsuit forward exceeded the sought damages that the amount and lawsuit that say appellee’s We cannot coverage. of primary amount deceived appellant. the lawsuit actions expediting concerning to the court alleged misrepresentation As for the on hearing at the November agreement, settlement motions, attorneys from the testimony court heard appellant’s testified 23,1989 attorney trial. Appellee’s involved in the March between 23,1989, agreement was an oral March there that on that, writing to been reduced He said it had hot parties. being subject that day, the proceedings on depending had “an oral testified the attorney parties changed. Beaty’s Brad to the subject writing be consummated agreement continued by saying client.” He my of this clients and approval before, but, binding we had a that “we had one principle that the trial testified attorneys the trial.” Both agreement after We cannot say agreement. was aware of the tentative a fraud the court. upon actions these any party by practiced with Beaty conspired contention that appellee Appellant’s is without merit. to enter the induce the trial court to be was introduced into evidence not all the evidence Although record, before the court. In its the evidence was made a part Law, the court referred of Facts and Conclusions Findings of the different items of evidence and the testimonies the various circumstances, was no need for there witnesses. Under failure We cannot her say to establish a detailed record. enter an to induce the court to to do so was of a part conspiracy excessive judgment.
IV. DISCRE- TRIAL ABUSED ITS THE COURT MOTION TION IN ALLOWING APPELLANT’S 59(a)(1) (a)(4) FOR NEW TRIAL UNDER RULE DEEMED DENIED. TO BE from 25,1989, a Motion for Relief filed On *11 349 24, 1989, Judgment and for New Trial. On October Record, a Notice filed of of Appeal Designation which it by sought “from effectual deemed denial appeal any trial court of its for a new trial pursuant Rule of the request Arkansas Rules of Civil Procedure.” of
The bases Motion for New appellant’s Trial are Ark. R. Civ. P. 59(a)(1) (a)(4), which as follows: provide hew
(a) Grounds. A trial or may granted all any of the on or parties and all of the part issues on of the of application party aggrieved, for any following grounds materially affecting rights substantial of such (1) any irregularity in the party: or order proceedings of court or of abuse discretion which the party trial; having from a fair prevented (4) ... excessive damages to have been under appearing given the influence of or passion prejudice^] argues that
Appellant “irregularities in the proceedings” occurred the trial court which of a new compelled ordering trial. The alleged irregularities include both the entry of a judgment in excess ten times the amount of damages pleaded, where said judgment was based on the obvious collusion between defendant, and Brad Beaty, the named and the induce- ment of the trial court to enter based not upon matters introduced into evidence or made a of the record. part also $8,002,178.15 contends the excessive and to have appears given been under the influence passion prejudice. Appellant contends the used in the language Findings Facts and Conclusions of Law indicates the award of damages was affected by The passion. specific language appellant refers to is the use of the word “grotesque” by describing ankle; the tissue grafting on appellee’s the court’s stating that “certainly understands the plaintiffs testimony the embarrassment regarding theses and disfiguring scars areas her;” cause and the court’s that it was stating with” “impressed testimonies her and her fiance. appellee, family, review,
On the test appellate of denial a motion for new trial is whether the verdict is by substantial supported evidence, the verdict the giving benefit of all reasonable infer- Schuster’s, Whitehead, Inc. proof. under
enees permissible
(1987).
Ark.
In the of Fact and Conclusions 11,1989, the court sated that it “further is of the opinion that the cause of far exceeds amount in this action the proof plead for and should to the be deemed amended to conform pleadings the in this was in Although evidence offered case.” the excess the amount of there is substantial damages pleaded, evidence the as it did. We entering judgment court’s support were say alleged cannot that the such that irregularities having used prevented Finally, language from fair trial. the the Law is by Findings court in its of Fact and Conclusions of and, testimony of the evidence and simply light descriptive court, infer before the is not We cannot certainly inappropriate. from that based on language entry Therefore, allowing we trial cannot court erred passion. say 59(a) for New under Ark. Civ. P. appellant’s Motion Trial R. deemed denied. Affirmed.
Hays JJ., Glaze, concur.
Brown, J., not participating. Justice, me, Glaze, I concur. For concurring. Tom difficult issue in the due raised appeal process question RLI. As out pointed RLI had notice of majority, lawsuit, but relied pending upon insured’s and the primary (Farmers Lavender, Insurance’s) attorney, carrier’s G. William RLI as of the case. The keep apprised progress majority details the opinion correctly leading facts to Lavender’s failure to inform RLI of the insured’s and Farmer’s settlement with the Jackie Coe. Nor did plaintiff, Lavender inform RLI of the March 23, 1989, trial that resulted in eight million dollar judgment *13 20, Coe, entered on 1989. Farmers and April the insured were aware that RLI had the excess in case and coverage therefore Nevertheless, had a stake in its personal outcome. as already noted, Coe, RLI was never notified of the March 23 trial by Farmers, insured, or Lavender even though RLI’s excess coverage If unquestionably jeopardy. these were the only occurred, events that had I would whether question adequate notice had been provided RLI.
The record is not as clear to when RLI became aware of the April judgment, 1989 but it is clear RLI was aware that 7,1989. judgment by date, June On that RLI wrote the trial judge him notifying that RLI had been sued in federal court Coe based upon rights certain she obtained under the 20 April judgment. RLI also asked the court not to take further action in the Coe lawsuit without notice being given RLI. letter dated By 13, 1989, June the judge advised RLI’s counsel that he knew of nothing lawsuit, pending Coe’s but the portion other two claims plaintiffs’ would be tried in the future. He further advised that, claims, if RLI intended defend against those RLI should enter its appearance the proceedings. time,
At this point in RLI was that Coe’sclaim fully apprised lawsuit, one three involved in the same that Coe’s claim had been reduced to judgment and that two claims were parties’ however, still pending. one, Coe’sjudgment, was not a final as can 54(b), Rule which as provides ARCP by reading discerned follows: Involving Claims or Judgment Upon Multiple
(b) relief one claim for When more than Parties. Multiple counterclaim, action, claim, as a in an whether presented claim, when multiple parties or or third-party cross-claim involved, of a final may entry direct are than all of the claims as to or more but fewer one that there is an determination only express or upon parties an direction for express delay no reason for just upon In the of such determina- absence judgment. the entry decision, direction, order or other form of any tion and all designated, which fewer than adjudicates however of fewer than all the or the and liabilities rights claims not as to of the claims any shall terminate action parties or decision is the order other parties, form of any entry to revision at time judg- subject before all the claims and the rights ment adjudicating added.) the parties. (Emphasis liabilities all Here, finding no in its April the trial court made express Coe’s should be made final because there claim As a the trial court’s just consequence, was no reason its delay. at time to the other subject prior decision was to revision sum, acted if RLI had being adjudicated. claims parties’ lawsuit in June intervene in Coe’s and the other parties’ objections could raised the it later raise timely attempted have — the date the trial court entered a after *14 in Coe’s behalf that with the requisites complied sum, 11th, final Rule 54. Coe’s was not until In not 20th. April duty litigant has that it is the of a
This court
emphasized
his
Midwest
informed of the
case.
keep
progress
himself
Co.,
872,
STATE of
C.
Arkansas v. Jesse
Jr. and
Nadine C. Martinez
CR 91-75
Supreme Court of Arkansas delivered Opinion July