Jessie L. Harris v. J.B. Hunt Transport, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

JESSIE L. HARRIS

APPELLANT

V.

J.B. HUNT TRANSPORT, INC.

APPELLEE

CA 03-422

October 8, 2003

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

[NO. civ-200-38]

HONORABLE DAVID G. HENRY,

JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Terry Crabtree, Judge

This is an appeal from an order of summary judgment awarding appellee $153,987.57 in damages against appellant. Appellant raises two issues on appeal. First, he contends that the trial court erred in denying his motion for a stay made pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940. Secondly, he argues that the trial court erred in granting summary judgment on the issue of damages. We affirm on the first point and reverse and remand on the second.

This case arises out of a vehicular collision that occurred on December 30, 1999, on Interstate 40 near Brinkley. Appellant, Jessie Harris, was driving west bound in a Honda Accord, which crossed over the median into east-bound traffic, striking a tractor trailer owned by appellee, J.B. Hunt Transport, Inc. Appellant had been traveling to Stuttgart from the military base in Clarksville, Tennessee. On March 30, 2000, appellee filed suit against appellant for property damages, alleging that appellant's negligence was the cause of the accident. Appellant answered the complaint with a general denial of appellee's allegations. Shortly thereafter, appellee propounded requests for admissions and interrogatories to which appellant promptly responded.

On August 3, 2000, appellee filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on both appellant's liability and the amount of damages it had sustained as a result of the accident. In support of the motion, appellee submitted appellant's answers from the requests for admissions in which appellant had admitted that the accident was his fault. Appellee also presented the affidavits of John L. Gunther and Mark Whitehead. Gunther, the driver of appellee's tractor trailer, recounted the details of the accident and averred, "My tractor caught on fire. I got it stopped and attempted to extinguish the fire, but was unable to do so. My tractor, trailer and all contents (load) were totally destroyed." Mark Whitehead, the corporate director of claims for appellee, stated in his affidavit that appellee had sustained damages totaling $153,987.57. He stated that the fair market value of the tractor was $78,000; that the fair market value of the chassis was $6,000; that the fair market value of the container was $9,000; that the fair market value of the contents of the container from Target Stores was$52,590.32; and that it had incurred charges of $8,397.25 from Brinkley Towing & Recovery, Inc.

In his response, appellant conceded liability but maintained that summary judgment on the issues of damages was not proper. Citing Clark v. Progressive Ins. Co., 64 Ark. App. 313, 984 S.W.2d 54 (1998), he argued that the affidavits expressed the opinions of interested witnesses, and he contended that the affidavits contained conclusory, rather than factual, statements regarding the damages allegedly sustained. Appellant also contended that appellee had failed to show whether there had been any mitigation of damages through salvage.

In October 2001, appellee supplemented its motion for summary judgment with the affidavits of Kenneth Weatherford, Joan Sturm, and Bill Runyan. Weatherford, the vice president and general manager of Brinkley Towing & Recovery, stated that the company provided appellee $8,397.25 in towing, clean up, storage, and "related services" after the accident. Ms. Sturm, an employee of Target Stores, stated that Target's merchandise was totally destroyed and that the value of the merchandise, at cost, was $52,590.32. Runyan, an insurance adjuster for Arkansas Claims Service, Inc., stated in his affidavit that he was contacted by appellee's safety department the morning of the accident. He stated that when he arrived at the scene the tractor and trailer were still burning and had been burned to the point that they could not be immediately identified. He stated that he had been asked by appellee to determine the fair market value of the tractor, chassis, and container, which he determined to be $78,000, $6,000, and $9,000, respectively.

On February 21, 2002, the court set a hearing on appellee's motion for summary judgment to be held on March 19, 2002. On March 15, appellant filed a motion to stay the proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act. The court scheduled a hearing on that motion for June 3, 2002.1 On January 2, 2003, the court entered an order denying appellant's request for a stay and granting appellee's motion for summary judgment on both liability and damages in the amount of $153,987.57.

Appellant's first issue is that the trial court erred in denying his request for a stay. Appellant's motion for a stay, which was not accompanied by affidavit, states simply that he was in the army and stationed at Fort Campbell, Kentucky, and that due to world events he was unable to travel more than 250 miles from the base.

The Soldiers' and Sailors' Civil Relief Act of 1940 provides:

At any stage thereof of any action or proceeding in any court in which a person in military service is involved, either as a plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall on the application to it by such person or some person on his behalf, be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.

50 U.S.C. § 521. The Act does not mandate a stay in the proceedings on a mere showing that the defendant was engaged in military service. Boone v. Lightner, 319 U.S. 561 (1943); Glick Cleaning & Laundry Co. v. Wade, 206 Ark. 8, 172 S.W.2d 929 (1943). Instead, the Act plainly provides that a court can proceed so long as the presentation of the soldier's case is not "materially affected by reason of his military service." Boone v. Lightner, supra. The determination of whether a soldier's ability to conduct his defense is impaired by his military service lies within the discretion of the trial court. Id. A determination on a stay request under the Act depends on the facts and circumstances of each case. Louis v. Superior Court of San Diego, 103 Cal. App. 4th 711, 127 Cal. Rptr. 2d 26 (2002). When we examine a discretionary decision by a trial judge, the question is not what we would have done, but whether as a matter of law discretion was abused. The question for us as an appellate court is: was the judge's judgment call arbitrary or groundless? Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000).

Our supreme court has recognized that there should be some showing of actual unavailability, as well as good faith and diligence in seeking a stay under the Act. See Potts v. Rader, 215 Ark. 160, 219 S.W.2d 769 (1949); Glick Cleaning & Laundry Co. v. Wade, supra. Accord Ensley v. Carter, 538 S.E.2d 98 (Ga. Ct. App. 2000); Bowman v. May, 678 So. 2d 1135 (Ala. Ct. Civ. App. 1996); Judkins v. Judkins, 441 S.E.2d 139 (N.C. Ct. App.1994); Foster v. Alexander, 431 S.E.2d 415 (Ga. Ct. App. 1993). In addition, the supreme court has considered the value of the soldier's appearance in court when evaluating the issue. Potts v. Rader, supra. See also McAllister v. Samuels, 857 S.W.2d 768 (Tex. Ct. App. 1993); Guzman v. Warenda, 557 N.Y.S.2d 588 (Sup. Ct. App. Div. 1990). From our review of this record, there is no evidence that appellant's military service materially impaired appellant's ability to conduct his defense. Appellant's responses to pleadings and discovery requests were prompt, and there is no indication in the record that he had any difficulties communicating or consulting with his attorney. The record also does not indicate that appellant had sought, but had been denied permission for leave. In addition, this case had been pending for two years before appellant requested a stay, and the motion was filed within days of the summary-judgment hearing. Under these particular circumstances, we can find no abuse of discretion in the trial court's decision not to halt the proceedings at this juncture and to go forward with the motion for summary judgment.

Appellant's second point questions the trial court's grant of summary judgment on the issue of damages. Our standards governing the review of summary judgment are familiar. We have ceased referring to summary judgment as a drastic remedy. Bank of Arkansas v. Mana Corp., 346 Ark. 469, 58 S.W.3d 366 (2001). We now regard it simply as one of the tools in a trial court's efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the non-moving party is not entitled to a day in court, i.e. where there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law Id. The burden for sustaining a motion for summary judgment is on the moving party. Srebalus v. Rose Care, Inc., 69 Ark. App. 143, 10 S.W.3d 112 (2000). The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). When the moving party fails to make a prima facie showing of entitlement to summary judgment, the burden of going forward to meet proof with proof does not shift to the opposing party. Id. On appeal, we view the evidence in a light most favorable to the non-moving party and resolve any doubt against the moving party. Id. Our task is to determine whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. White v. J.H. Hamlen & Son Co., 67 Ark. App. 390, 1 S.W.3d 464 (1999).

We must agree with appellant that summary judgment was improvidently granted on the question of damages. In Sartor v. Ark. Natural Gas Corp., 321 U.S. 724 (1944), the Supreme Court enunciated the principle that summary judgment on the issue of damages should not be granted based on opinion evidence concerning value that a jury might choose to disbelieve. The court observed that opinion evidence, even if entitled to some weight or uncontradicted, could not be given conclusive effect because opinions should be submitted to cross examination and credibility evaluation, which is a matter that is traditionally committed to the province of a jury in the exercise of its own independent judgment. We echoed this basic principle in Clark v. Progressive Ins. Co., supra, where we reversed the grant of summary judgment that was grounded on evidence offered by a witness whose interest in the suit was such that his credibility might reasonably be called into question. Accord, Thomas v. Sessions, supra. Here, summary judgment was based on the opinions of witnesses who were also not disinterested. One was appellee's employee; another was its truck driver. Two were employed by companies with whom appellee did business, and the other was hired by appellee to give an estimate of the property's value. Their opinions, as to value, cannot be given conclusive effect, and thus appellee failed to show that it was entitled to judgment as a matter of law as to the amount of damages it had sustained. Therefore, we hold that the trial court erred in granting summary judgment. The question of appellee's damages should be determined by a trier of fact.

Since we are remanding this case for trial, and because the circumstances of appellant's military service may have changed in the interim, we note that appellant may reassert his motion for a stay should he wish to do so. We express no opinion in the matter; we only point out that appellant is at liberty to ask the court to revisit the issue in light of present circumstances.

Affirmed in part; reversed and remanded in part.

Roaf, J., agrees.

Hart, J., concurs.

1 Although the record reflects the settings for the hearings on the motion for summary judgment and the request for a stay, the record does not contain a transcript of those hearings, although appellant designated the entire record in his notice of appeal.