Lafont v. Mixon

• Decision Date: 06 January 2011
• Docket Number: No. 10–259.,10–259.
• Parties: Christopher LaFONT and Erin LaFont, individually and as Guardians of Tyler LaFont, a Minor, Appellants v. Jana C. MOONEY MIXON, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 450

374 S.W.3d 668

Christopher LaFONT and Erin LaFont, individually and as Guardians of Tyler LaFont, a Minor, Appellants

v.Jana C. MOONEY MIXON, Appellee.

No. 10–259.

Supreme Court of Arkansas.

Nov. 18, 2010.

Rehearing Denied Jan. 6, 2011.

Chaney Law Firm, P.A., by: Don P. Chaney, Nathan P. Chaney, and S. Taylor Chaney, Arkadelphia, for appellants.

Huckabay, Munson, Rowlett & Moore, P.A., Little Rock, by: D. Michael Huckabay, Jr., and Shane Strabala, for appellee.

DONALD L. CORBIN, Justice.

Appellants, Christopher and Erin LaFont, individually and as guardians for a minor, Tyler LaFont, appeal from the judgment of the Clark County Circuit Court entered pursuant to a jury verdict in their favor but awarding costs to Appellee, Jana C. Mooney Mixon, pursuant to Rule 68 of the Arkansas Rules of Civil Procedure. Appellants also appeal from the separate orders denying their motion for new trial and motion for reconsideration of the award of costs. Appellants present three arguments on appeal, one of which is a question of first impression challenging Rule 68 under both the United States and Arkansas Constitutions. Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1–2(a)(1), (b)(1), (b)(3), and (b)(6) (2010). We find no merit to the appeal and affirm.

This case arises from an automobile collision involving five vehicles that occurred near the intersection of Arkansas Highways 7 and 84 in Bismarck, Arkansas. It is undisputed that the collision occurred when Appellee impacted the rearmost of four vehicles stopped in the southbound lane of Highway 7. The first of the four stopped vehicles was yielding to oncoming traffic while waiting to turn left into a private driveway. Appellee admitted to striking the rearmost of the four vehicles. This impact, in turn, caused further impacts down the line of stopped vehicles. Appellants occupied the third vehicle in the line of four stopped vehicles. Their automobile sustained damage from the rear-end impact with the fourth vehicle, as well as the corresponding front-end impact with the second vehicle.

Appellants filed a complaint for negligence against Appellee, claiming damages for physical injuries suffered in the collision. In her answer, Appellee admitted striking the vehicle in front of hers. Approximately fifteen months after the complaint was filed, Appellee made three separate offers of judgment to Appellants. Appellee offered $12,000 to Christopher LaFont, $14,000 to Erin LaFont, and $4,500 to Tyler LaFont.

Approximately eighteen months after the offers of judgment, with Appellee having admitted liability, the sole issue tried to the jury was Appellants' damages. Evidence of Appellants' injuries was disputed at trial. Appellants presented testimony from their chiropractor, Patrick Clary, D.C., that separate Appellants Mr. and Mrs. LaFont suffered injuries to their neck and spine that were due to the accident in question. Appellee presented testimony from Earl Peeples, M.D., who acknowledged some injuries, but disputed that the injuries were due to the accident in question. Family members and co-workers testified that Appellants had little or no interruption in their work and home life. Pursuant to separate, itemized verdict forms, the jury awarded total damages of $3,197.50 to Christopher LaFont, including $2,782.50 for medical expenses and $415 for lost wages. Also pursuant to separate, itemized verdict forms, the jury awarded $2,447.50 to Erin LaFont for medical expenses, and $231.50 to Tyler LaFont for medical expenses. With respect to all three Appellants, the jury awarded $0 for future lost earnings, $0 for pain and suffering, and $0 for the nature, extent, and duration of any injury.

Following trial but prior to entry of the judgment, Appellee filed a motion for costs totaling $6,480.81, based on Rule 68 of the Arkansas Rules of Civil Procedure and her prior offers of judgment to all three Appellants. Appellants responded to the motion for costs, arguing among other things not relevant to this appeal, that Rule 68 violated the equal protection provisions of both the United States and Arkansas Constitutions and their right to a jury trial provided in the Arkansas Constitution.

Subsequently, the circuit court entered a written judgment in which it acknowledged the jury verdicts but then granted in part Appellee's motion for costs in the amount of $6,091.72. The judgment then accordingly decreed that Appellants take $0 on their complaint against Appellee and that Appellee take $215.22 on her motion for costs against Appellants. On the same day it entered judgment, the circuit court also entered a twenty-page memorandum opinion detailing the court's reasoning for granting Appellee's motion for Rule 68 costs.

Appellants timely filed a motion for new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure. In addition to claiming that the verdict was too low and not supported by substantial evidence, Appellants claimed that the jury committed misconduct by ignoring the court's instructions and by rendering an inconsistent verdict. Appellants also claimed that Appellee's counsel made improper and prejudicial remarks during closing argument. The circuit court timely entered an order summarily denying Appellants' motion for new trial.

Appellants then filed a motion for reconsideration of their motion for new trial. On the same day, Appellants filed a separate motion for reconsideration of the award of Rule 68 costs. In this motion, Appellants challenged the constitutionality of Rule 68 on grounds of equal protection, due process, right to jury trial, and the “without purchase” clause of the Arkansas Constitution in article 2, section 13. Appellants also claimed the rule was void for vagueness. The circuit court entered an order summarily denying the motion for reconsideration of Rule 68 costs. Appellants timely appealed each of these rulings, and we now consider their three arguments for reversal.

I. New Trial—Jury Failed to Follow Court's Instructions

Appellants' first argument for reversal is that the circuit court erred in denying their motion for new trial because the jury did not award all elements of damages consistent with the court's instructions. The court instructed the jury on four distinct elements of damage for Appellants Erin and Tyler LaFont and on five distinct elements of damage for Christopher LaFont. However, the jury awarded damages based on only one element of damages, medical expenses, for Appellants Erin and Tyler LaFont, and on only two elements of damages for Appellant Christopher LaFont, medical expenses and lost wages. Specifically, Appellants contend on appeal that because the jury awarded some damages for medical expenses, that necessarily means that the jury determined Appellants suffered some injury, which in turn necessarily means that the jury failed to follow the court's instructions to award damages for the nature and extent of the injuries and the pain and suffering they claimed accompanied those injuries. In short, Appellants claim that the jury's award of some but not all of the elements of damages itemized on the verdict form was caused by the jury's failure to follow instructions that resulted in an inconsistent verdict and, therefore, warrants a new trial.

The record reveals that after the verdict was read in open court, Appellants' counsel requested that the jury be polled; each juror responded that the verdict as read was his or hers. The record also reflects that Appellants made no further objection or argument to the circuit court that the verdict was inconsistent or contrary to the court's instructions. The argument now presented on appeal was not presented to the circuit court until Appellants filed their motion for new trial.

Our law is well settled that the time to object to an irregularity or inconsistency in the verdict or to correct or clarify the verdict is before the jury is discharged, and any failure to so object operates as a waiver of the irregularity or inconsistency. SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000); P.A.M. Transp., Inc. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988); Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912). The purpose of this rule is to allow the trial court to resubmit an inconsistent verdict to the jury. P.A.M. Transp., Inc., 315 Ark. 234, 868 S.W.2d 33. This court has explained as follows:

The verdicts of a jury should in any and all cases reflect the true and correct and final conclusions of the jury, and if before discharging the jury it was made known to the court that the jury had misunderstood the instructions, no error is committed in permitting the jury to further consider their verdict, after the instructions have been explained.

Clift v. Jordan, 207 Ark. 66, 69–70, 178 S.W.2d 1009, 1011 (1944) (citing Street v. Stuart, 38 Ark. 159 (1881)). Because Appellants did not bring their argument concerning the failure to follow instructions and inconsistent verdict to the trial court's attention before the jury was discharged, they have waived the matter. We therefore express no opinion on whether the verdict as rendered in this case amounts to a failure to follow instructions or an inconsistent verdict, or whether, as Appellee responds, it amounts to the jury's rejection of Appellants' evidence and acceptance of Appellee's theory that Appellants did not suffer any injury proximately caused by the accident on trial, but did act reasonably in seeking medical attention soon thereafter.

II. New Trial—Improper Closing Argument

For their second point for reversal, Appellants contend that the circuit court erred in denying their motion for new trial based on remarks of Appellee's counsel during closing argument. Appellants contend that the challenged remarks were an improper comment on counsel's own observations and...