Benton v. Barnett

William BENTON v. Bill BARNETT

CA 95-480                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered April 24, 1996


1.   Civil procedure -- motion for new trial does not challenge
     sufficiency of evidence -- appellant's failure to move for
     directed verdict resulted in failure of his challenge to
     sufficiency of evidence. -- Where it was appellant's
     contention that there was no evidence presented by appellee to
     justify the submission of the case to the jury; however,
     appellant failed to challenge the sufficiency of the evidence
     by motion for a directed verdict, as is required under Rule
     50(e) of the Rules of Civil Procedure, instead, he raised the
     issue by motion for a new trial under Rule 59, appellant's
     challenge to the sufficiency of the evidence failed; although
     Rule 59 specifically states that a motion for a new trial may
     be granted where the verdict is clearly contrary to the
     preponderance of the evidence, such a motion does not test the
     sufficiency of the evidence to go to the jury; a party must
     test the sufficiency of the evidence by motions for directed
     verdict and judgment notwithstanding the verdict, not by a
     motion for a new trial.  

2.   Appeal & error -- issues not raised at trial will not be
     considered on appeal. -- Where appellant's arguments
     concerning the sufficiency of appellee's counterclaim and the
     verdict being tantamount to an award of attorney's fees were
     not included in his motion for a new trial, the court declined
     to address them; issues not raised in the trial court will not
     be considered for the first time on appeal.


     Appeal from Fulton Circuit Court; Stephen Choate, Judge;
affirmed.
     Larry Dean Kissee and Tom Garner, for appellant.
     Wilber Law Firm, P.A., by:  Norman C. Wilber, for appellee. 

     Judith Rogers, Judge.*ADVREP*CA6*                 DIVISION III




                                       CA 95-480
                                        
                                                   April 24, 1996      
                                          

WILLIAM BENTON                       AN APPEAL FROM THE CIRCUIT
                 APPELLANT           COURT OF FULTON COUNTY,          
                                     NO. CIV-91-27                    
VS.
                                     HONORABLE STEPHEN CHOATE,       
BILL BARNETT                         CIRCUIT JUDGE
                 APPELLEE
                                     AFFIRMED





                         Judith Rogers, Judge.
     
     The appellant, William Benton, appeals from a $5,000 judgment
in favor of appellee, Bill Barnett, which was entered upon a jury's
verdict.  For reversal, appellant contends that the trial court
erred in denying his motion for a new trial.  We affirm.
     Appellant filed a complaint in battery against appellee for
injuries he had sustained, alleging that appellee had attacked and
beaten him without provocation during an altercation at a service
station.  Appellee answered and filed a counterclaim against
appellant, contending that the allegations in appellant's complaint
were knowingly false and that the suit was brought for purposes of
"harassing, annoying, alarming, vexing, and causing financial loss"
to him.  Based on this claim, appellee sought "judgment over"
against appellant, Rule 11 sanctions, punitive damages, costs and
attorney's fees.  
     The case proceeded to trial.  In summary, appellant testified
that he and appellee exchanged words and that appellee hit him as
many as five times, knocking him backwards into a drink machine and
causing his nose and face to bleed.   Appellee, who was not injured
in the fray, admitted hitting appellant but said that he did so
only after appellant had attempted the first blow.  The jury
returned a verdict for appellee in the amount of $5,000.  
     Appellant filed a motion for a new trial pursuant to Rule 59
of the Arkansas Rules of Civil Procedure.  In this motion,
appellant contended that appellee "presented no evidence at trial
of any damages he suffered" and that the award of "damages assessed
by the jury ... was in error and clearly contrary to a preponder-
ance of the evidence."   The trial court denied the motion, stating
in its order that there had been "testimony and certainly argument
concerning the employment of counsel to defend this lawsuit."  This
appeal followed.
     For reversal, appellant contends that appellee presented no
evidence of damages in support of his claim.  He further argues
that appellee's counterclaim did not state a cause of action in
tort.  He maintains that the jury's verdict was essentially an
award of attorney's fees and argues that attorney's fees are not a
proper element of damages, since attorney's fees are not allowed
unless expressly authorized by statute.  See Elliot v. Hurst, 307
Ark. 134, 817 S.W.2d 877 (1991).  In support of his arguments,
appellant alludes to the testimony of appellee when he was asked by
his own attorney what damages he was seeking, to which appellee
replied, "Well, basically it's cost me quite a bit of money to put
up with this for four years and finally come to this conclusion." 
Appellant also points to argument made in closing by appellee's
counsel asking the jury to award appellee $5,000 for his attorney's
fees "to send a message to" the appellant.  In defense of the trial
court's decision, appellee contends that appellant's arguments were
not properly preserved for appeal.  We agree.
     It is obvious from a reading of appellant's motion for a new
trial and his supporting brief that it was, and remains, appel-
lant's contention that there was no evidence presented by appellee
to justify the submission of the case to the jury.  Appellant,
however, failed to challenge the sufficiency of the evidence by
motion for a directed verdict, as is required under Rule 50(e) of
the Rules of Civil Procedure.  Instead, he raised the issue by
motion for a new trial under Rule 59.  Although Rule 59 specifical-
ly states that a motion for a new trial may be granted where the
verdict is clearly contrary to the preponderance of the evidence, 
Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), such a
motion, however, does not test the sufficiency of the evidence to
go to the jury.  Id.  See also Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986).  A party must test the sufficiency of the
evidence by motions for directed verdict and judgment notwith-
standing the verdict, not by a motion for a new trial.  Majewski v.
Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). Therefore, appel-
lant's challenge to the sufficiency of the evidence must fail.  We
recognize that this distinction is a fine one indeed, but it is one
that has been fashioned by the supreme court.
     With regard to appellant's remaining arguments concerning the
sufficiency of appellee's counterclaim and the verdict being
tantamount to an award of attorney's fees, these matters were not
included in his motion for a new trial.  Moreover, at no time
before trial did appellant complain by appropriate motion about any
deficiencies with respect to appellee's complaint for damages. 
Neither did he raise any objection to the testimony offered by
appellee relative to his claim, nor did he object to the argument
of appellee's counsel.  Likewise, appellant raised no objection to
the jury being offered a verdict form allowing it to assess damages
in appellee's favor.  It is a well-settled rule that issues not
raised in the trial court will not be considered for the first time
on appeal.  Stacks v. Jones, 323 Ark. 643, ___ S.W.2d ___ (1996).
Since appellant did not raise these issues in his motion for a new
trial, we will not address them.  It remains to be seen whether it
would have been appropriate for appellant to have asserted these
matters in a motion for a new trial, in the absence of any prior
objection.  See Stacks v. Jones, supra., Newbern, J., concurring. 
     Affirmed.
     Jennings, C.J., and Neal, J., agree.