Wallis v. Keller

• Decision Date: 27 May 2015
• Docket Number: No. CV–14–853,CV–14–853
• Parties: Mary Wallis, Appellant v. Katherine Keller, Appellee
• Court: Arkansas Court of Appeals

2015 Ark. App. 343

464 S.W.3d 128

Mary Wallis, Appellant

v.Katherine Keller, Appellee

No. CV–14–853

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered May 27, 2015

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks ; and Bailey & Oliver Law Firm, by: Frank H. Bailey, Mountain Home, Sach D. Oliver, Bentonville; and T. Ryan Scott, Rogers, for appellant.

Roy, Lambert, Lovelace, Bingham & Wood, LLP, Springdale, by: Robert J. Lambert, Jr. and James H. Bingham, for appellee.

Opinion

BART F. VIRDEN, Judge

On February 20, 2013, motorist Katherine Keller rear-ended the vehicle driven by Mary Wallis in stop-and-go traffic on I–49 (formerly I–540). Keller eventually admitted fault. Wallis filed a claim against Keller seeking damages for pain and suffering and mental anguish. The jury found in favor of Wallis, but returned a verdict of zero damages. Wallis filed a motion for a new trial based on Arkansas Rule of Civil Procedure 59(a)(5) and (6), which was deemed denied. Wallis appeals, asserting that zero damages was not a verdict the jury could deliver. We affirm.

I. Facts

At trial, Keller's attorney stated in opening statements that, “it's not, folks, that they are not entitled to anything. It's not that she's not entitled to anything, it's that they've got to prove that they're entitled to $25,000 at minimum or $100,000 at maximum.”

Wallis's family members testified about her reduced capacity since the accident. Wallis's son, Todd, testified that she was no longer able to attend his three children's numerous sporting events, which she had done regularly before the accident. He testified that she was a very active, busy person before the accident and that the accident “really slowed her down. It's kind of made it where she's constantly in back pain. Not constantly, but it's regular. Migraines from it. It slowed her down.”

Wallis's youngest son, Trent, also testified that his mother no longer participated in bowling, playing catch with him, gardening, cleaning, cooking, and playing with their dogs. He also testified that Wallis had back surgery in 2002.

Wallis's husband, Richard, testified about her inability to maintain the level of activity she enjoyed prior to the accident and that he and the children and grandchildren had begun helping out with the housework. He described his wife's physical state immediately after the accident, testifying that she “couldn't hardly get up. I mean she's real tender. She basically just laid down.” He testified that basically nothing relieved her pain, that she just had good days and bad days, and was not “the same dynamo she was before[.]” On cross-examination, Richard stated that she went back to work a week after the accident. He testified that his wife has worked full-time and has at times taken a second job while he was being treated for colon cancer

. He also stated that, apart from the initial visit to the doctor a week after the accident, Wallis had seen a physician for back pain only once about a year later.

Wallis testified that immediately after the accident, she was able to get up and walk around and did not realize the extent of her injuries. Within half an hour, she was having back spasms and allowed the EMT to place her in a collar and on a back board and transport her to the hospital via ambulance. After she was x-rayed, she was instructed to take a week off of work, and she was given pain medications. Wallis went to her regular physician for a follow-up visit a week after the accident, and he prescribed anti-inflammatory medicine, Naproxen

, and adjusted her pain medications. He diagnosed her with lumbar strain due to a motor-vehicle accident. Wallis also testified that she underwent back surgery in 2002 to address ruptured disks in the L4/L5 region of her spine. She stated that the surgery, combined with physical therapy, was successful and that after the surgery (but prior to the accident) she had felt mild back pain from time to time that could be managed with Tylenol or Motrin, but that it “wasn't enough to put me down to where I couldn't do anything.” Wallis described her job history, and said that she had worked full-time since the accident, occasionally having two jobs and other times only having one job.

Wallis testified how her life had changed since the accident. She stated that she no longer cleaned the house as before, and that “I just don't live my life like I have prior to the wreck.” She testified that nothing relieved the pain and that sitting, standing, walking, lying down, and basically all daily activities aggravated the sharp pain in her back.

Keller also testified about how the accident happened and that Wallis seemed okay immediately afterward and was walking around.

In closing arguments the defense argued that “The only thing they are asking for is pain and suffering. Have they met that burden of proof? Is that the kind of proof you would want if you had a friend or a loved one sitting where Kate is today? I submit to you that it is not.” Then, the defense went on to say, “Now I think the case is worth some money ... I'd start at the $1000 range, or the $3000 range” and asked the jury to “return a verdict that's reasonable[.]”

The jury returned a verdict finding in favor of Wallis, but awarded no damages for pain and suffering and mental anguish. Wallis filed a motion seeking a new trial, arguing that the jury was in error in awarding nothing. The circuit court did not act on the motion within thirty days, and it was deemed denied. This appeal follows.

II. Standard of Review

When the primary issue is the alleged inadequacy of the damage award, we will affirm the denial of a motion for a new trial absent a clear and manifest abuse of discretion. Fritz v. Baptist Mem'l Health Care Corp., 92 Ark. App. 181, 184, 211 S.W.3d 593, 595 (2005). An important consideration is whether a fair-minded jury could have reasonably fixed the award at the challenged amount. Depew v. Jackson, 330 Ark. 733, 740, 957 S.W.2d 177, 181 (1997). When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, we will likewise affirm the denial of the motion if the jury's verdict is supported by substantial evidence. Barringer v. Hall, 89 Ark. App. 293, 300, 202 S.W.3d 568, 573 (2005).

The jury is the sole judge of the credibility of the witnesses and of the weight and value of their evidence. Kempner v. Schulte, 318 Ark. 433, 436, 885 S.W.2d 892, 893 (1994). It may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence is uncontradicted and unimpeached. Id.

III. Arkansas Code Annotated § 16–64–119(b)

Keller argues that Wallis waived any objection to the jury's verdict under Arkansas Code Annotated section 16–64–119 when she failed to poll the jury before they were dismissed. Declining to poll the jury does not bar an appeal under Rule 59. Keller's argument concerning the statute is misapplied under the present circumstances.

Arkansas Code Annotated section 16–64–119(b) sets forth that after the verdict has been read by the foreman, “either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his or her verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.” Subsection (d)(2) dictates that when there is no disagreement and neither party polls the jury, “the verdict is complete and the jury discharged from the case.” Before the discharge of the jury, the parties have a right to have jurors polled and to call for corrective measures to cure any apparent confusion. Smith v. Perkins, 246 Ark. 427, 429, 439 S.W.2d 275, 276 (1969). The purpose of the statute is to isolate any irregularity or inconsistency in the verdict, such as the jury's misunderstanding of jury instructions, for example. See Spears v. Mills, 347 Ark. 932, 69 S.W.3d 407 (2002). We have not held that a party's claim under Rule 59(a)(5) or (6) can arise only under circumstances involving jury confusion or an inconsistency in the verdict, creating a situation in which it would be helpful to poll the jury. The necessity of polling the jury, or lack thereof, is not at issue here. We find no merit to this argument on appeal and do not discuss it further.

IV. Rule 59(a)(5) and (6)

We now turn to Wallis's assertion that the zero verdict awarded by the jury was in error. Wallis divides her argument into two points: (1) error exists in the amount of recovery; and (2) the award is clearly against the preponderance of the evidence. Because the two points are so closely related, we shall address them together.

Wallis contends that Keller's attorney's statements in opening and closing argument that the case was worth “some money” amounted to a concession, and therefore the jury was obliged to award damages for pain and suffering. Therefore, s...