Tri-County Farmers, Inc. et al. v. Emmitt Larry and Irene Larry

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

TRI-COUNTY FARMERS, INC., ET AL.

APPELLANTS

V.

EMMITT LARRY and IRENE LARRY

APPELLEES

CA 01-381

February 6, 2002

APPEAL FROM THE LEE

COUNTY CIRCUIT COURT

[CIV-98-33]

HONORABLE HARVEY LEE YATES, CIRCUIT JUDGE

AFFIRMED

The appellants are appealing a jury verdict awarding damages of $25,000 each to the appellees, Reverend Emmitt Larry and his wife, Irene Larry. The facts giving rise to these awards are as follows. On March 25, 1998, one of Tri-County Farmers, Inc.'s tanker trucks attempted to turn around in appellees' driveway and became stuck. In attempting to remove the tanker, a small amount of the truck's load, which was identified as liquid fertilizer by Robert Wooten, the manager of the Tri-County Co-op, spilled onto appellees' yard, causing the grass to die in an area approximately eight feet wide. The truck also left ruts in the appellees' yard; Reverend Larry testified that it would cost approximately $1,073 to fix the damage.

As a result of the spill, appellees became concerned that the liquid fertilizer, which they simply classified as "chemical" and which they believed to be toxic, might possibly have seeped into the ground and infiltrated their water pipes, thus contaminating their water. Both appellees testified that this concern has caused them great mental and emotional suffering; however, they suffered no physical problems as a result of using the water. Reverend Larry stated that he did not have any proof that his water was contaminated. Although not contained in the abstract, there was testimony that appellees purchased and hauled water for their use for a period of one or two months. However, they resumed using the water from the water line, and they reported no adverse effects from this use.

Wooten testified that the composition of the liquid fertilizer was thirty-two percent urea and sixty-eight percent water and that exposure to the liquid fertilizer was not harmful. Jack Beecham, the assistant manager of the Lee County Water Association, testified that appellees' water line was in good standing and met specifications and that it would be more likely for a foreign substance to be pushed out rather than allowed through the pipe. Beecham said that he did not think that liquid fertilizer would pass through the pipe.

The jury returned a verdict in favor of the Larrys in the amount of $25,000 each. Appellants filed a motion for judgment notwithstanding the verdict and, in the alternative, a motion for new trial and request for remittitur. After the denial of these motions, appellants filed this appeal, arguing (1) that appellees' argument at trial was based on the tort of negligent infliction of emotional distress, which is a tort that is not recognized under Arkansas law; (2) that the tort of mental anguish requires physical damages, and there wereno physical damages in this case; and (3) that the trial court erred in denying their motion for new trial and, in the alternative, request for remittitur.

Appellants first contend that appellees' argument at trial was based upon the tort of negligent infliction of emotional distress, and such a tort is not recognized under Arkansas law. In support of this argument, appellants cite Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988), which does hold that a claim of negligent infliction of emotional distress is not recognized in Arkansas. However, this argument was never made to the trial court. It is well settled that an argument that was never raised below will not be considered for the first time on appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001).

Appellants' next argument is that the tort of mental anguish requires physical damages, and there were no physical damages in this case. However, this argument was also never made to the trial court, and we cannot now address it for the first time on appeal. Ghegan & Ghegan, supra.

Appellants' last argument is that the trial court erred in denying their motion for new trial and, in the alternative, request for remittitur. However, appellants did not abstract this motion; therefore, we do not know what was alleged in the motion for new trial without going to the record. In Boatmen's Trust Co. v. Housing Auth., 346 Ark. 192, 195, 57 S.W.3d 132, 134 (2001) (citations omitted), our supreme court held:

It is well established that the abstract is the record for purposes of appeal, and the burden is on the appealing party to provide both a sufficient record and abstract for appellate review. Our review on appeal is limited to the record as abstracted, and wewill not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted.

Because the motion for new trial and, in the alternative, request for remittitur was not abstracted, we are unable to reach the merits of this issue. For the reasons explained above, we must affirm the jury's awards of $25,000 each to appellees.

Affirmed.

Jennings and Crabtree, JJ., agree.