Harris v. J.B. Hunt Transport, Inc.

• Decision Date: 08 October 2003
• Docket Number: CA 03-422.
• Parties: JESSIE L. HARRIS, APPELLANT v. J.B. HUNT TRANSPORT, INC., APPELLEE.
• Court: Arkansas Court of Appeals

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JESSIE L. HARRIS, APPELLANT v. J.B. HUNT TRANSPORT, INC., APPELLEE.

CA 03-422.

Court of Appeals of Arkansas, Division III.

October 8, 2003.

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, [NO. civ-200-38], HONORABLE DAVID G. HENRY, JUDGE.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

TERRY CRABTREE, Judge

This is an appeal from an order of summary judgment awarding appellee $153,987.57 in damages against appellant. Appellant raises two issues on appeal. First, he contends that the trial court erred in denying his motion for a stay made pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940. Secondly, he argues that the trial court erred in granting summary judgment on the issue of damages. We affirm on the first point and reverse and remand on the second.

This case arises out of a vehicular collision that occurred on December 30, 1999, on Interstate 40 near Brinkley. Appellant, Jessie Harris, was driving west bound in a Honda Accord, which crossed over the median into east-bound traffic, striking a tractor trailer owned by appellee, J.B. Hunt Transport, Inc. Appellant had been traveling to Stuttgart from the military base in Clarksville, Tennessee. On March 30, 2000, appellee filed suit against appellant for property damages, alleging that appellant's negligence was the cause of the accident. Appellant answered the complaint with a general denial of appellee's allegations. Shortly thereafter, appellee propounded requests for admissions and interrogatories to which appellant promptly responded.

On August 3, 2000, appellee filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on both appellant's liability and the amount of damages it had sustained as a result of the accident. In support of the motion, appellee submitted appellant's answers from the requests for admissions in which appellant had admitted that the accident was his fault. Appellee also presented the affidavits of John L. Gunther and Mark Whitehead. Gunther, the driver of appellee's tractor trailer, recounted the details of the accident and averred, "My tractor caught on fire. I got it stopped and attempted to extinguish the fire, but was unable to do so. My tractor, trailer and all contents (load) were totally destroyed." Mark Whitehead, the corporate director of claims for appellee, stated in his affidavit that appellee had sustained damages totaling $153,987.57. He stated that the fair market value of the tractor was $78,000; that the fair market value of the chassis was $6,000; that the fair market value of the container was $9,000; that the fair market value of the contents of the container from Target Stores was$52,590.32; and that it had incurred charges of $8,397.25 from Brinkley Towing & Recovery, Inc.

In his response, appellant conceded liability but maintained that summary judgment on the issues of damages was not proper. Citing Clark v. Progressive Ins. Co., 64 Ark. App. 313, 984 S.W.2d 54 (1998), he argued that the affidavits expressed the opinions of interested witnesses, and he contended that the affidavits contained conclusory, rather than factual, statements regarding the damages allegedly sustained. Appellant also contended that appellee had failed to show whether there had been any mitigation of damages through salvage.

In October 2001, appellee supplemented its motion for summary judgment with the affidavits of Kenneth Weatherford, Joan Sturm, and Bill Runyan. Weatherford, the vice president and general manager of Brinkley Towing & Recovery, stated that the company provided appellee $8,397.25 in towing, clean up, storage, and "related services" after the accident. Ms. Sturm, an employee of Target Stores, stated that Target's merchandise was totally destroyed and that the value of the merchandise, at cost, was $52,590.32. Runyan, an insurance adjuster for Arkansas Claims Service, Inc., stated in his affidavit that he was contacted by appellee's safety department the morning of the accident. He stated that when he arrived at the scene the tractor and trailer were still burning and had been burned to the point that they could not be immediately identified. He stated that he had been asked by appellee to determine the fair market value of the tractor, chassis, and container, which he determined to be $78,000, $6,000, and $9,000, respectively.

On February 21, 2002, the court set a hearing on appellee's motion for summary judgment to be held on March 19, 2002. On March 15, appellant filed a motion to stay the proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act. The court scheduled a hearing on that motion for June 3, 2002.¹ On January 2, 2003, the court entered an order denying appellant's request for a stay and granting appellee's motion for summary judgment on both liability and damages in the amount of $153,987.57.

Appellant's first issue is that the trial court erred in denying his request for a stay. Appellant's motion for a stay, which was not accompanied by affidavit, states simply that he was in the army and stationed at Fort Campbell, Kentucky, and that due to world events he was unable to travel more than 250 miles from the base.

The Soldiers' and Sailors' Civil Relief Act of 1940 provides:

At any stage thereof of any action or proceeding in any court in which a person in military service is involved, either as a plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall on the application to it by such person or some person on his behalf, be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.

50 U.S.C. § 521. The Act does not mandate a stay in the proceedings on a mere showing that the defendant was engaged in military service. Boone v. Lightner, 319 U.S. 561 (1943); Glick Cleaning & Laundry Co. v. Wade, 206 Ark. 8, 172 S.W.2d 929 (1943). Instead, the Act plainly provides that a court can proceed so long as the presentation of the soldier's case is not "materially affected by reason of his military service." Boone v. Lightner, supra. The determination of whether a soldier's ability to conduct his defense is impaired by his military service lies within the discretion of the trial court. Id. A determination on a stay request under the Act depends on the facts and circumstances of each case. Louis v. Superior Court of San Diego, 103 Cal. App. 4^th 711, 127 Cal. Rptr. 2d 26 (2002). When we examine a discretionary decision by a trial judge, the question is not what we would have done, but whether as a matter of law discretion was abused. The question for us as an appellate court is: was the judge's judgment call arbitrary or groundless? Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000).

Our supreme court has recognized that there should be some showing of actual unavailability, as well as good faith and diligence in seeking a stay under the Act. See Potts v. Rader, 215 Ark. 160, 219 S.W.2d 769 (1949); Glick Cleaning & Laundry Co. v. Wade, supra. Accord Ensley v. Carter, 538 S.E.2d 98 (Ga. Ct. App. 2000); Bowman v. May, 678 So.2d 1135 (Ala. Ct. Civ. App. 1996); Judkins v. Judkins, 441 S.E.2d 139 (N.C. Ct. App.1994); Foster v. Alexander, 431 S.E.2d 415 (Ga. Ct. App. 1993). In addition, the supreme court has considered the value of the soldier's appearance in court when evaluating the issue. Potts v. Rader, supra. See also McAllister v. Samuels, 857 S.W.2d 768 (Tex. Ct. App. 1993); Guzman v. Warenda, 557 N.Y.S.2d 588 (Sup. Ct. App. Div. 1990). From our review of this record, there is no evidence that appellant's military service materially impaired appellant's ability to conduct his defense. Appellant's...