Jones Rigging and Heavy Hauling v. Parker

• Decision Date: 14 February 2002
• Docket Number: No. 01-770.,01-770.
• Citation: 347 Ark. 628,66 S.W.3d 599
• Parties: JONES RIGGING AND HEAVY HAULING, INC., and Paul Kemp v. Shannon PARKER and Michael Rodney Parker.
• Court: Arkansas Supreme Court

66 S.W.3d 599

347 Ark. 628

JONES RIGGING AND HEAVY HAULING, INC., and Paul Kemp v. Shannon PARKER and Michael Rodney Parker.

No. 01-770.

Supreme Court of Arkansas.

February 14, 2002.

Friday, Eldredge & Clark, by: William Mell Griffen, III and Jason B. Hendren, Little Rock, for appellant.

Wright, Chaney, Berry, Daniel, Hughes & Moore, P.A., by: Don P. Chaney, Jr., Arkadelphia, for appellees.

DONALD L. CORBIN, Justice.

Appellants Jones Rigging and Heavy Hauling, Inc. ("Jones Rigging"), and Paul Kemp appeal the order of the Clark County Circuit Court granting Appellees Shannon Parker and Michael Rodney Parker a new trial. For reversal, Appellants argue that the trial court abused its discretion in granting a new trial on the basis of surprise, because it erroneously interpreted Ark. R. Civ. P. 59(a)(3). Appellees have filed a cross-appeal, arguing that the trial court erred during the trial in denying their motion in limine, thereby allowing Appellants to introduce extrinsic evidence to impeach a witness. This case was certified to us from the Arkansas Court of Appeals; as such, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(d). We agree with Appellants and reverse.

This case stems from an automobile accident that occurred on June 25, 1996, in Caddo Valley, while Kemp was employed as a driver for Jones Rigging. At the time of the accident, Appellees were traveling north on Highway 7 when they collided with a tractor trailer driven by Kemp. Kemp, who had been sitting at a stop sign at an exit ramp off Interstate 30, was in the process of making a left-hand turn when Appellees' vehicle collided with the truck's right rear dual tires. Appellees admitted that just prior to the accident they had gone through the drive-through of a Taco Bell restaurant and were going to eat their food while driving to Hot Springs. Appellees initially denied being injured as a result of the accident and did not seek medical attention until later that evening.

Appellees filed a personal injury complaint against Appellants on October 1, 1997, alleging that Kemp was negligent in pulling out in front of them, thereby causing the accident and their subsequent injuries. Appellees also alleged in their complaint that under the doctrine of respondeat superior, Kemp's negligence was imputed to his employer Jones Rigging. Discovery ensued between the parties, and Appellants provided Appellees with information regarding Jones Rigging's status as an ICC motor carrier. In June 2000, however, Jones Rigging was dissolved, and its assets were sold. Appellants never supplemented any of their prior discovery responses to reflect Jones Rigging's changed status. The case went to trial on January 29, 2001. During their case-in-chief, Appellees called Peter Waddell, who at the time of the accident was Director of Safety at Jones Rigging, to testify. During direct examination, Waddell testified that Jones had been dissolved and its assets sold. Waddell also testified about the creation of Sampson Heavy Hauling, d/b/a Jones Heavy Hauling. At the time this testimony was elicited, Appellees failed to object to Waddell's testimony, nor did they seek any type of curative relief. Likewise, at no time prior to the jury reaching a verdict, did Appellees notify the court that they had been surprised by the information of Jones Rigging's corporate status because of Appellants' failure to supplement their discovery responses. During closing statements, counsel for Appellees told the jurors that any negligence found on the part of Kemp would be imputed to Jones Rigging as his employer; thus, the issue of the trucking company's status was irrelevant. Moreover, the trial court instructed the jury that at the time of the accident Kemp was employed by Jones and any negligence on his part was chargeable to Jones.

The case was submitted to the jury on January 31, 2001, and they reached a unanimous verdict in favor of Appellants. Appellees subsequently filed a motion for a new trial, alleging that they were surprised by the evidence of Jones Rigging's dissolution and ordinary prudence on their part could not have prevented such surprise. Appellees further stated that they were prejudiced by this new information, because the jury was left with the belief that Kemp would be individually liable for any judgment the jury might have awarded. Appellees also argued that they were entitled to a new trial, because the trial court erred in denying their motion in limine to prevent Appellants from presenting extrinsic evidence in an attempt to discredit one of their witnesses. Appellants responded to the motion by arguing that Appellees' failure to remedy any alleged prejudice prior to the jury reaching a verdict precluded them from seeking a new trial. Appellants also argued that they were under no duty to supplement their discovery responses, because Appellees never inquired about issues related to dissolution of the corporation.

The trial court initially denied the motion for a new trial, but Appellees then filed an amended motion, supplementing their previous motion with documentation from the Arkansas Secretary of State's office regarding Jones Rigging's dissolution. The trial court then granted the motion, finding that Appellees had been prejudiced by Appellants' failure to notify them of the dissolution of Jones Rigging. Although the trial court's order does not specifically recite the basis for granting the new trial, the language of the court's order indicates that the new trial was granted pursuant to Rule 59(a)(3), which allows for a new trial when a party's rights have been substantially affected due to surprise. The trial court did not address Appellees' argument regarding the motion in limine. From this order, comes the instant appeal.

The sole issue on appeal is whether the trial court manifestly abused its discretion in granting Appellees' motion for a new trial under Rule 59(a)(3). Appellants argue that the trial court did abuse such discretion, as it erroneously applied the provisions of Rule 59(a)(3) to the facts of this case. Appellants contend that Appellees' failure to seek curative relief prior to the jury reaching a verdict precluded them from seeking the remedy of a new trial. We agree.

Upon review of a trial court's grant of a new trial, this court must determine whether the trial court abused its discretion. Sunrise Enters., Inc. v. Mid-South Rd. Builders, Inc., 337 Ark. 6, 987 S.W.2d 674 (1999); Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). Where a new trial has been granted, it is more difficult to prove that the trial court abused its discretion, as the party opposing the motion will have another opportunity to prevail. Id.; Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). This court has held that a manifest abuse of discretion is one exercised improvidently or thoughtlessly and without due consideration. Martin, 313 Ark. 445, 856 S.W.2d 2; Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973). Even in light of this rigorous standard, the trial court in the present case clearly abused its discretion in granting Appellees a new trial.

Rule 59(a)(3) provides that a new trial may be granted where a party's substantial rights are materially affected by "accident or surprise which ordinary prudence could not have prevented." In Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993), this court reaffirmed the long-standing principle that both an objection and a request for a continuance are prerequisites to appellate review of a claim of surprise in civil cases. See, e.g., Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Arkansas Power & Light Co. v. Jennings, 258 Ark. 908, 529 S.W.2d 866 (1975); National Cash Register Co. v. Holt, 193 Ark. 617, 101 S.W.2d 441 (1937). This principle was also recognized by the court of appeals in Thorne v. Magness, 34 Ark.App. 39, 805 S.W.2d 95 (1991). There, the court of appeals affirmed a trial court's denial of a new trial where the appellant failed to request a continuance and also failed to object to the testimony he claimed was a surprise. In so holding, the court of appeals stated that a person who is surprised by his adversary's testimony is not entitled to a new trial on that ground if, rather than asking for a postponement to secure necessary evidence, he reserves his plea of surprise as a "masked battery in the effort for a new trial." Id. at 44, 805 S.W.2d at 98 (quoting Sellers v. Harvey, 220 Ark. 541, 545, 249 S.W.2d 120, 122 (1952)).

In the present case, Appellees chose to call Waddell as a witness after noticing that he was present in the courtroom. Thereupon, the following colloquy took place between counsel and Waddell:

XVII. Okay, in 1999, how long had you worked for Jones?

I. A little over six years.

XVII. And at that time, did you and the owner of the company, Mr. Dale Vinzant, jointly manage the company?

I. That's correct.

XVII. And you would supervise the truck drivers for Jones Trucking?

I. Yes, sir.

XVII. And at that time, you told me you thought you were going to be the corporate representative for Jones Trucking at this trial?

I. Yes, sir.

XVII. But apparently your jobs have changed?

I. Yes, sir, Jones has sold.

XVII. Okay. Is there still a Jones Trucking?

I. Kind of. It's Samson Heavy Hauling d/b/a Jones Heavy Hauling. So there is no more Jones Rigging Heavy Hauling.

XVII. But there's a corporation that has bought that—

I. It's dissolved.

XVII. The corporate entity?

I. Yes.

XVII. Okay. The assets of the corporation were sold to another company?

I. Yes.

At no point during this exchange did Appellees object to Waddell's testimony. They also did not request a continuance or seek any type of curative relief, such as a cautionary instruction from the court.

Moreover, Appellees were also responsible for introducing the offending testimony. It is well settled that a party who invites...