Ellis v. Price, 98-1378

• Decision Date: 27 May 1999
• Docket Number: No. 98-1378,98-1378
• Citation: 337 Ark. 542,990 S.W.2d 543
• Parties: Lorene ELLIS, Appellant, v. Jean PRICE, Appellee.
• Court: Arkansas Supreme Court

Page 543

990 S.W.2d 543

337 Ark. 542

Lorene ELLIS, Appellant, v. Jean PRICE, Appellee.

No. 98-1378.

Supreme Court of Arkansas.

May 27, 1999.

Sandra Trotter Phillips, Pine Bluff, for appellant.

Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: Marcia Barnes, Little Rock, for appellee.

ARNOLD, Chief Justice.

This case arose when appellee Jean Price filed a complaint against appellant Lorene Ellis and a co-defendant, Henrietta Glayson, contending that they had falsely and maliciously accused the appellee of adultery and that statements made by them were defamatory per se, in that they defamed appellee's reputation to her husband.

Knowing that appellee was three months pregnant, appellant and Ms. Glayson telephoned appellee's husband on May 9, 1995, and alleged to him that appellee was having an affair with another man and that the baby appellee was carrying may be the other man's child. On May 16, 1995, appellee suffered a miscarriage. Appellee alleged in her complaint against appellant and Glayson that because of the proximate result of the statements to her husband , she suffered injury to her reputation, personal humiliation, embarrassment, weight loss, difficulty sleeping, and loss of appetite. The record is clear that appellee had already suffered complications with her pregnancy and therefore did not allege that appellant's statements were the proximate cause of her miscarriage.

A motion in limine was filed by appellant and Glayson the day before trial requesting that evidence concerning appellee's pregnancy and subsequent miscarriage be excluded from the trial because the probative value of such evidence would be greatly outweighed by the prejudice to the defendants. On the day of trial, the court ruled on the motion in limine, ordering that neither the plaintiff nor any of her witnesses could testify that statements made to her husband were the proximate cause of the miscarriage, but that the plaintiff would be allowed to discuss the pregnancy and miscarriage as to the plaintiff's state of mind.

Although motions for directed verdicts were made, the case proceeded to the jury and the jury found in favor of the appellee, awarding her damages in the amount of $40,000.00 from each of the defendants, for a total of $80,000.00. The appellee was awarded from each defendant $20,000.00 in compensatory damages and $20,000.00 in punitive damages. The trial court entered a judgment on April 30, 1998, awarding these damages with interest to be paid at 6 er annum. Appellant and Glayson filed motions for judgment notwithstanding the verdict, or alternatively for remittitur of the jury award, or a new trial. All motions were denied.

This appeal followed, in which appellant seeks to have the judgment overturned. She asserts the following two points on appeal:

1) The court erred in denying the defendants' motion in limine to exclude testimony from the plaintiff, her witnesses, and her counsel concerning her pregnancy and subsequent miscarriage, in a defamatory per se case.

2) The court erred in the following ways: by allowing the case to proceed to the jury on the evidence; by allowing the $80,000.00 jury award in compensatory and punitive damages to stand; by denying the defendants' motion for either a directed verdict, judgment notwithstanding the verdict, remittitur of the jury award, or a new trial.

We disagree.

I. Whether the court erred in denying the defendants' motion

in limine to exclude testimony from the plaintiff, her

witnesses, and her counsel concerning her pregnancy and

subsequent miscarriage, in a defamatory per se case.

A motion in limine was filed by appellant and Glayson the day before trial, requesting that evidence concerning appellee's pregnancy and subsequent miscarriage be excluded from the trial because the probative value of such evidence would be greatly outweighed by the prejudice to the defendants. On the day of trial, the court ruled on the motion in limine, ordering that neither the plaintiff nor any of her witnesses could testify that statements made to her husband were the proximate cause of the miscarriage, but that the plaintiff would be allowed to discuss the pregnancy and miscarriage as to the plaintiff's state of mind.

A trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403. The standard of review on appeal is whether the trial court committed a manifest abuse of discretion in its ruling. Id.; Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In the absence of abuse of discretion, the appellate court will not reverse. Benson v. Shuler Drilling Co., 316 Ark. 101, 871 S.W.2d 552 (1994); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).

Although appellant contends that the trial court erred in denying her motion in limine to exclude certain evidence in a defamatory per se case, appellant cites no authority in support of her argument, other than simply restating A.R.E. 403. This Court has said on numerous occasions that it will not consider an issue if the appellant has failed to cite any convincing legal authority in support of her argument. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). Appellant's failure to cite authority or make a convincing argument is sufficient reason for affirmance of the trial court's ruling on this point. Williams v. Martin, 335 Ark. 163, 169, 980 S.W.2d 248 (1998), citing Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). It is certainly not apparent without further research that appellant's argument is well-taken. Id., citing Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

In addition, appellee's counsel clarified in her opening statement that appellee was not contending that her miscarriage was a result of the phone calls made by appellant and Glayson. Appellee's counsel stated as follows:

Mrs. Price is not contending that this phone call or any action by Ms. Ellis or Ms. Glayson had anything to do with that miscarriage because there will be evidence that there was already a problem with the pregnancy and a heartbeat problem with the fetus. I wanted to clarify to you that we are not asking you to consider that as any damages or even to assume or imply that we are contending in any way that her miscarriage was a result of this phone call or why we are coming to court.

Further, the trial judge gave a cautionary instruction to the jury that this was not part of appellee's case, and no objection was made by appellant to the instruction. For the foregoing reasons, we hereby affirm the trial court on this point.

II. Whether the court erred in the following ways: by

allowing the case to proceed to the jury on the evidence;

by allowing the $80,000.00 jury award in compensatory and

punitive damages to stand; by denying the defendants'

motion for either a directed verdict, judgment

notwithstanding the verdict, remittitur of the jury award,

or a new trial.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Pettigrew v. State, 64 Ark.App. 339, 984 S.W.2d 72 (1998). When considering a motion for directed verdict made by a defendant, the plaintiff's evidence, and all reasonable inferences therefrom, are examined in the light most favorable to the plaintiff. Dodson v. Charter Behavioral Health Sys., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998); See also, Avery v. Ward, 326 Ark. 830, 934 S.W.2d 516 (1996). A directed-verdict motion should be granted only if the evidence would be so insubstantial as to require a jury verdict for that party to be set aside; evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other, or if it does not pass beyond mere suspicion or conjecture. See City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

We held in the case of United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998), that a plaintiff in a defamation case must prove reputational injury in order to recover damages. In United Ins., the doctrine of presumed damages in a defamation per se case was abolished, and all prior inconsistent decisions were overruled.

Appellant asserts that her motion for directed verdict should have been granted. However, a review of the record indicates that there was sufficient evidence in this case to proceed to the jury. In Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), we held that a plaintiff's testimony that his reputation was injured is enough to take the case to the jury in a defamation case. In Hogue, the defendant wrote a letter to Hogue's police supervisor, complaining about driving an unlicensed vehicle and yelling obscenities. The accusations were untrue. When Hogue sued, the only evidence of injury to his reputation was his testimony and that of another witness who testified "rather vaguely" that Hogue's reputation changed for the worse about the time of the investigation of the accusations. Id. at 483, 695 S.W.2d 373. The trial court granted a motion for directed verdict. We reversed and remanded the case.

A plaintiff must establish actual damage to his reputation, but the showing of harm is slight. Mitchell v. Globe International Publishing, Inc., 773 F.Supp. 1235 (W.D.Ark.1991). A plaintiff must prove that the defamatory statement(s) have been communicated to others and that the statements have detrimentally affected those relations. The law does not require proof of actual out-of-pocket expenses.

In the instant case, appellee testified that the defamation had damaged her reputation and her relationship with her husband. The testimony revealed that appellee's husband was angry. His actions indicate...