Joe Terrell and Archie Terrell v. Balboa Insurance et al.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION IV

JOE TERRELL and ARCHIE TERRELL

APPELLANTS

V.

BALBOA INSURANCE, BALBOA LIFE INSURANCE, and BALBOA INSURANCE COMPANY GROUP of Irvine, California

APPELLEES

CA01-319

November 28, 2001

APPEAL FROM THE MONROE COUNTY CIRCUIT COURT

[NO. CIV-97-71]

HONORABLE L.T. SIMES, II,

CIRCUIT JUDGE

AFFIRMED

Appellants bring this appeal from both the trial court's granting of a partial directed verdict and a jury verdict in favor of appellees in appellants' insurance claim against appellees. On appeal, appellants first contend that the jury's decision was arbitrary and not supported by the evidence. In their second issue they argue that the court erred in granting appellees a directed verdict on two of their claims. Third, they contend that a new trial should have been granted because of alleged misconduct by appellees' attorney during the trial and because the verdict was clearly contrary to the preponderance of the evidence. Fourth, they argue that they were denied a fair trial because appellees were represented byan attorney who also served as a prosecutor. We affirm.

Appellants filed a complaint alleging that appellant Joe Terrell had purchased a homeowner's insurance policy covering a certain residence and its contents. Appellants contended that on July 2, 1994, a thunderstorm and windstorm caused damage to the residence and its contents. Appellants alleged that lightning destroyed a number of appliances at the residence and that the high winds moved the residence from its original position on the foundation, destroying the garage door and causing water pipes to break, roof joists to separate, walls to crack and spread, and shingles and portions of the chimney to blow off the roof. In an amended complaint, appellants sought damages from appellees for the replacement value of the residence. Appellants also sought recovery for electric appliances purportedly damaged by lightning. Appellants further pleaded that

the Defendant Balboa Insurance hired adjusters to draw up erroneous blue prints of the Plaintiff's structure in an attempt to deceive and defraud the Plaintiff his rights under the policy, into believing that the damage to his house was caused by settling, which the terms of the policy did not cover, for which the erroneous blueprints were so drawn to display a raised foundation that did not exist in order to depict a false origin of the damages suffered by the Plaintiff for which the Plaintiff should be entitled to punitive damages for an additional $160,000.

At trial, after the presentation of appellants' evidence, the court granted a directed verdict in favor of appellees on appellants' claim of fraud. Further, the court granted appellees' motion for a directed verdict on appellants' claim regarding the destruction of the electric appliances in the residence. After submission of the case to the jury, the jury found by interrogatory that appellants did not suffer any damage to their real property as a result

of wind or lightning.

In their first issue on appeal, appellants argue that the jury arbitrarily disregarded "unrefuted" evidence from their witnesses that wind and lightning caused damage to the residence. In a related claim, appellants argue that they should have been granted a new trial, claiming that the verdict was clearly contrary to the preponderance of the evidence. See Ark. R. Civ. P. 59(a)(6). Appellants did not have transcribed the evidence presented by appellees, and our review of the sufficiency of the evidence is severely hampered by the absence of this testimony. Nevertheless, we note that one witness, Don Bailey, testified that he inspected the residence and prepared an estimate of the damage. He concluded that there was no electrical damage and that the residence had some wind damage for which, according to trial exhibits, appellants were compensated. Thus, appellants' claim of extensive wind and lightning damage was refuted, and "it is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony." Russell v. Colson, 326 Ark. 112, 114, 928 S.W.2d 794, 795 (1996). Therefore, we conclude that there was no arbitrary disregard of unrefuted evidence by the jury, and its verdict was not clearly contrary to the preponderance of the evidence.

For his second issue on appeal, appellants argue that the court erred in granting a directed verdict on their claim that lightning caused damage to various electric appliances. In reviewing an order granting a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was directed, and if any substantial evidence exists that tends to establish an issue in favor of that party, it is error forthe trial court to grant the motion for directed verdict. Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 297, 948 S.W.2d 388, 394 (1997).

A plaintiff must present proof that would enable the jury to fix damages in dollars and cents. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 522, 780 S.W.2d 543, 545 (1989). "Although recovery will not be denied merely because the amount of damages is hard to determine, damages must not be left to speculation and conjecture." Dawson v. Temps Plus, Inc. 337 Ark. 247, 258, 987 S.W.2d 722, 728 (1999). Here, appellants failed to present any evidence with regard to a dollar amount for damages. Appellants suggest that the jury could have estimated the value of the appliances because these items are regularly purchased by the general public. Appellants' list of damaged items included an electric water heater, a twenty-five-inch color television, a twenty-six-inch color television, a nineteen-inch color television, a thirteen-inch color television, a Sony compact-disc player, a videocassette recorder, a chandelier, a dishwasher, a freezer, two overhead ceiling fans, a microwave oven, a grandfather clock, a stereo system, and a copy machine. We conclude that without more evidence regarding the value of these items, the jury would have had to resort to speculation and conjecture to determine damages. Thus, the court did not err in granting a directed verdict on this issue.

Further, appellants argue that the court erred in granting a directed verdict on appellants' claim of fraud. As we noted, in appellants' amended complaint, appellants contended that appellees drafted erroneous blueprints displaying a raised foundation that did not exist in order to depict a false origin of the damages suffered by appellants. "Toestablish fraud, a party must show as an element justifiable reliance on [a] false representation." SEECO, Inc. v. Hales, 341 Ark. 972, 996, 22 S.W.3d 157, 172 (2000). Here, there was no evidence presented by appellants that they relied on the blueprints or would have been justified in doing so. And more generally, there is no evidence that appellants relied on appellees' assertion that appellants did not suffer wind or lightning damage. Thus, we conclude that the court did not err in granting a directed verdict on appellants' claim of fraud.

Appellants also argue that the court erred in refusing to grant a judgment notwithstanding the verdict because the attorney for appellees "lied" to the jury during opening argument and to the judge during a discussion with the judge in the court's chambers. Rule 59(a) of the Arkansas Rules of Civil Procedure provides:

A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: ... (2) misconduct of the jury or prevailing party[.]

The party moving for a new trial under Rule 59(a)(2) "must show that his rights have been materially affected by demonstrating that a reasonable possibility of prejudice resulted from the misconduct." Suen v. Greene, 329 Ark. 455, 459, 947 S.W.2d 791, 793 (1997). "The matter of granting or denying a new trial lies within the sound judicial discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant." Kristie's Katering, Inc. v. Ameri, 72 Ark. App. 102, 106, 35 S.W.3d 807, 809 (2000).

With regard to this allegation, we note that after appellants objected to appellees' counsel's remarks to the jury, appellees' counsel immediately remedied any confusion created by his remarks. Further, the remarks made in chambers were also discussed at length by the court and parties, and any confusion was clarified. Given that these remarks were discussed and clarified, we cannot say that the court abused its discretion in denying the motion.

Finally, appellants argue for the first time on appeal that they had no reasonable expectation of a fair trial because appellees were represented by the local prosecuting attorney. We, however, do not address an issue that is raised for the first time on appeal. See, e.g., Dillard v. Wade, 74 Ark. App. 38, 43, 45 S.W.3d 848, 852 (2001).

As a final matter, we note that appellants single-spaced the testimony contained in their abstract, and the individual judges on this court had great difficulty reading the testimony. We remind appellants' attorney that Rule 4-1(a) of the Rules of the Supreme Court and Court of Appeals requires that briefs be double-spaced. While appellants' brief escaped such scrutiny this time, in the future any single-spaced brief will not be accepted by the Clerk. See Ark. Sup. Ct. R. 4-1(d).

Affirmed.

Vaught and Baker, JJ., agree.