*1 аnd Rita STACKS Randy JONES Jones John 916 S.W.2d 95-211 Court of Arkansas Supreme delivered Opinion *2 O.
Timothy appellant. Dudley, Donna for appellees. Wolfe, J. Glaze, Tom 20, On 1990, the July appellees, Justice. and Rita leased
Randy a feed mill Jonеs, business from Feeds, Inc., Mountaire for five The lease years. contained an to renew for an option additional five at the end of the years term. primary term, During Stacks primary appellant John entered intо the mill negotiations from purchase Mountaire, and those culminated in negotiations a sale on 14, 1992. August At that time, Mountaire lease to assigned Stacks. a wind storm had Significantly, the fertilizer and damaged seed bins on the storage leased four property only days prior of the purchase letter 30, dated October property. By 1992, Stacks told the he would not the storm repair Joneses and he was damage of the terminating leasе portion involv- the fertilizer business. Stacks further notified the Joneses in with certain noncompliance lease provisions. Stacks, about six later, weeks demanded the vacate the Joneses property. On 1993, the lawsuit, this brought Joneses Stacks had breached alleging their lease agreement, from that breach. On arising 29, 1994, September matter was tried to a which returned a in jury favor of judgment in the sum $137,797.00. The trial court entered Joneses its judgmеnt October 1994, and Stacks’s new counsel entered his and filed a appearance motion for new trial on timely October 24, 1994. That motion alleged misconduct. The juror he filed motion, but it shows on Stacks’s record reflects no ruling 9, 1994.1 December timely substantial there is no In his Stacks first argues appeal, He claims award evidence jury’s support However, fact. a matter of law and are excessive as For exam his below. Stacks failed to arguments simply he now cites the case of Burnette ple, Morgan, his contention that the (1990), support future erred in awarding damages covering Joneses losses from the lease renewal resulting periоd. five-year the Burnette law, decision, as a matter of bars the from recovering damages extending primary beyond term of the leasehold interest. While Stacks’s argument might *3 merit, have some the out never mentioned Stаcks point Joneses Burnette below, nor did he to the evidence the object Joneses addition, on this future-loss issue. In Stacks also failed presented to tender an instruction on the issue. Stacks concedes the Burnette issue was never
Although
below,
that,
raised
he claims
as a matter of fact and under the
evidence, the future losses
from the renewal
had
resulting
option
been miscalculated and
the
As a
awarded by
jury.2
cоnsequence,
he claims he
the
issue when he
duly preserved
excessive-damages
moved for a directed
at the end of
verdict
the
case and
Joneses’
after all
the evidence had been submitted. We must
rеject
Stacks’s
on this
because his directed verdict
argument
motion failed to
excessive
as a
Under
specify
damages
ground.
Ark. R.
50(a),
Civ. P.
a motion for directed
must
verdict
state
the movant’s
The
of this
specific grounds.
рurpose
requirement
is to assure the
for a directed
is
verdict
ground
specific
brought
to the trial court’s attention. See
Hot
v.
City
Standridge
of
271
(1981).3
Ark.
Stacks R. also cites Ark. Civ. P. 59 in an to attempt salvage his that rule thаt an error in the appeal, provides of the assessment amount whether too or too recovery, large small, is a a He further new trial. asserts (f) of Rule 59 that it was for him provides provision unnecessary to move for a in order new trial to error the concerning words, issue. In other of the damages suggests any Rule 59(a) (like for a new trial excessive can grounds damages) without ever those urged brought having grounds to attention of the trial court. that,
We first make observation if we accepted of Rule would 59(f), we interpretation adopting — error rule a rule this court has See plain steadfastly rejected. (1993). Second, Lynch Blagg, while Stacks that was for him to have complains impossible about excessive until after the complained returned verdict, its he the fact that he failed to to ignores object any evidence that he now claims on bearing Joneses’ are as a matter erroneous of law. For he example, allowed, without economic to tes objection, expert Joneses’ as to future tify losses he now claims violate the thoroughly in Burnеtte. Likewise, he failed holding object on lost but instead seeks testimony that evi profits, question dence for the first time And we note finally, Stacks never offered instructions on these dam any jury bearing *4 issues, or setoff matters that age he now he is any argues legally due.4 under Rule 59(f), if a has
Clearly, party already prop her preserved his or error erly the concerning any grounds listed in Rule 59(a), that is not to make a motion party required for new trial in order to Hall those on argue grounds appeal. Cf. Grimmett, 318 Ark. 885 S.W.2d 297 Nonethe- appeal, we they throughout note also reiterate their offered substan- proof, including expert testimony, tial damages by established аwarded detail, jury. We find it discuss the unnecessary agree to evidence in since we Stacks failed damage to raise these issues below. on that the should have deducted certain repre amounts senting the eаrnings,” current tonnage “substantial as well as fertilizer amounts Joneses’ provided in the lease. error, error for not less, plain any our rules do because provide court’s the trial been directed to have first must argued had an manner, so that court in some attention appropriate adhere to Our court continues the issue. to address opportunity court raised in the trial issues not rule that to the well-settled the first time be cоnsidered for will not Lynch, 33. Ark. at 847 S.W.2d at the trial reversal, Stacks contends
In his second
for
an instruction
erred in
to
regarding
court
refusing
give
refused, stat-
The trial court
to mitigate damages.
duty
such an instruction.
no evidence existed tо support
is the instruction on
AMI 2229 which
Stacks proffered
to real and
personal property.
mitigation
damages
the instruction should
on use
AMI 2229
note
to
explains
that a
when there is evidence
claiming property
party
given only
This court in Twin
has failed
City
damage
mitigate
(1984), stated
127,
For the reasons we affirm.
Newbern, concurs. J., Arkansas Rules of Newbern,
David concurring. Justice, “A motion for a new trial shall 59(f) Civil Procedure provides: not be an error which could necessary added to thе basis for trial.” That was new provision the rule in 1984 to restore to Arkansas practice provision in Ark. Stat. Ann. 27-2127.5 found previously superseded § Rules, not to be found 1962). Prior to 1984 was (Repl. 1979. which became effective in Grimmett, In Hall v. which rеsulted in
(1994), the that a appellants argued judgment no in an automobile to them as negligence plaintiffs *5 case should because the verdict of the was be overturned jury 59(a)(6) Rule of the evidence. against preрonderance pro- or vides that a trial be because “the verdict new may granted decision is to the of the evi- clearly contrary preponderance dence.” No motion for a new trial had bеen made. We wrote:
Mr. and Mrs. Hall’s sole
is that the
verdict was
against
“great weight
preponder-
ance of the evidence.” The Halls did not move for a new
trial and this is not an
from the denial of a motion
See ARCP Rule
It is not neces-
for a new trial.
59(a)(6).
to move
a new trial to
sary
preserve
appeal any
for
for
error which could be the basis
a new trial.
for
ARCP
59(f).
Rule
Rule 59
states a motion for
specifically
new trial
reasоns, one of
may
granted
eight
is where the verdict is
to the
clearly contrary
preponder-
ance of the evidence. [Emphasis supplied.]
that Rule
majority opinion
59(f)
suggests
obviates
only
the need to move for a
trial
new
an error which could
be the basis of one of the
and that an error consti-
eight grounds
one of the
tuting
must have been
eight grounds
preserved by
in some
objection
other context in order to be considered on
If
case,
that is the
Rule 59(f) has no
or
utility meaning.
We
no such
in the Hall case
posed
requirement
or in cases
decided under the
Southern National Ins.
statute. In
predecessor
Williams,
Co. v.
Ark.
As a
matter
is contended
preliminary
is not entitled
appellant
the amount of the
question
ver-
dict, for the reason that the
of the award was
liberality
in the trial court.
challenged
This
would
have been meritorious.
formerly
Civil Code exces-
By
siveness of the
was a
for a new
trial. Ark.
Stats.,
27-1901, and the error was waived if not
§
L.,
in the
a new trial. St.
motion for
I.M. & S.
assigned
Branch,
v.
Lake,
Desрite is no State, there good in this error rule” to the “plain exception motion trial court apprised by that the reason not to require an as a for a new trial prerequisite of a ground as the 59(f) as Rule strictly I сannot trial. While interpret a new as to it in such does, way I would interpret opinion majority could which a mask objections it from becoming preclude at the trial. not, made been, have but were a new trial entitlеment case, In this the Stackses argue seems to fit While that due to an excessive award (5), or 59(a)(4) argu- in Rule supporting stated admitted to evidence was prove damages ment is that irrelevant as a matter law. Wе been recoverable which should have of Rule issue under the should not review that guise evidentiary or 59(a)(4)
Subsection should be excised from Rule 59. Until (f) courts, limit the we, thereafter the trial should grant- occurs the new trial of relief under Rule 59 to instances which not a cover for errors motion or is alleged not, to the trial court’s been, but were called should have that extent I concur with the attention in other To major- ways. it reaches. and I concur in the result ity opinion, fully Arkansas Carnell GUY v. STATE of Courtney 95-1148 Court of Arkansas
Supreme delivered Opinion