Georgia-Pacific Corporation v. Richard Amerson

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

GEORGIA-PACIFIC CORPORATION

APPELLANT

V.

RICHARD AMERSON

APPELLEE

CA 04-15

September 22, 2004

APPEAL FROM THE ASHLEY

COUNTY CIRCUIT COURT

[CV 02-262-5]

HONORABLE F. RUSSELL ROGERS, SPECIAL CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

This is a tort case in which appellee, Richard Amerson, filed suit against appellant, Georgia-Pacific Corporation. Appellee also happens to be employed by appellant. The basis for the lawsuit lies in appellee's claim that emissions from appellant's facility caused damage to the paint on his truck. He sought damages in the amount of $3,300, plus interest, costs, and attorney's fees. The case was tried to a jury, which found in favor of appellee and awarded him $4,529. Appellant moved for directed verdicts at trial, which were denied. In addition, appellant filed a motion for judgment notwithstanding the verdict and/or a new trial, contending that the verdict was not supported by substantial evidence. The posttrial motions were not ruled upon, and were therefore deemed denied. Judgment was entered on May 19, 2003, and with costs, the amount of judgment came to $5,064, accruing interest at ten percent per annum. Appellant raises two points of appeal: 1) that the trial court erred in denying its motions for directed verdict, for judgment notwithstanding the verdict, and,

alternatively, for a new trial on the asserted ground that the verdict was clearly contrary to the preponderance of the evidence; 2) that the trial court erred in allowing testimony at trial regarding an additional possible source of damage and previous emissions or damages. Finding no error, we affirm.

In Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 739, 120 S.W.3d 61, 66-67 (2003), our supreme court explained the appellate standard of review with respect to the denial of motions for directed verdict, judgment notwithstanding the verdict, and new trial based upon the ground that the verdict was clearly contrary to the preponderance of the evidence:

In order to clear up any possible confusion that may exist with regard to our appellate standard of review, we take this opportunity to explain that while a trial court evaluates a motion for directed verdict and a motion for judgment notwithstanding the verdict differently than a motion for new trial, an appellate court reviews a denial of any of those motions under the same standard. A trial court is to evaluate a motion for directed verdict or a motion for judgment notwithstanding the verdict by deciding whether the evidence is sufficient for the case to be submitted to the jury; that is, whether the case constitutes a prima facie case for relief. In making that evaluation, the trial court does not weigh the evidence; rather, the trial court is to view the evidence in a light most favorable to the party opposing the motion. To the contrary, in evaluating the motion for new trial under Rule 59(a)(6), the trial court must determine whether the verdict or decision is clearly contrary to the preponderance of the evidence. In examining that motion, the trial court is permitted to weigh the evidence. On appeal from the denial of any of these motions, the appellate court affirms the verdict if it is supported by substantial evidence.

(Citations omitted.) Accordingly, in reviewing the denial of the motions at issue here, we will affirm the verdict if it is supported by substantial evidence. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Dovers v. Stephenson Oil Co., Inc., 354 Ark. 695, 128 S.W.3d 805 (2003). It is only where there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded persons can only draw a contrary conclusion that a jury verdict should be disturbed. Id.

Here, appellee testified that he purchased a used Ford truck on September 6, 2001, and that when he took the truck to work on September 11, 2001, there were no problems with the paint job on the truck. He stated that he parked the truck away from other vehicles because it was new, that he went to Monroe to pick up a load of crude tar oil, and that when he returned there were little white specks embedded all over his truck. He said that he took the truck to the security guard and showed it to him and that he then took it to the office to show Steve Sanders, the human-relations manager. He said that Sanders told him that he would have an adjuster look at it, and that an adjuster later did so. He acknowledged, however, that no one from Georgia-Pacific agreed to fix his vehicle.

Appellee explained that he has had three other vehicles painted by appellant in the eighteen years that he has worked there and that the damage was similar to the damage at issue here. He said that he was alleging that appellant damaged his vehicle because he has "seen the stuff coming out of the cooling tower"; that his truck has been covered with a fine dust from the plywood mill; that it is white, foamy-looking "stuff" that comes out of the cooling towers; that something like that got on his vehicle; that he did not see it fall on the truck; that the foam eventually dried up; and that when you tried to pick it off, paint would come off as well. He stated that there was no doubt in his mind that the particles that damaged his truck came from the cooling towers.

Cedric Tucker testified that he had worked at Georgia-Pacific for eight years; that he had experienced problems with his vehicle while working there; that he had had his vehicle painted by appellant in the past; and that one morning, when he got off graveyard shift, there was a lot of foam on his truck from the cooling tower. Tucker testified that on September 11, 2001, he, appellee, and Frankie Williams were parked together; that he also got "stuff" on his truck, but that he never said anything about it; and that he just went on and had his truck painted. He said that he had property damage before September 11, 2001, and that it reoccurred on September 11, 2001. He described the "stuff" as "little fine things on the vehicle"; that he washed it off, but it still had a film on it; and that appellee asked him if anything had gotten on his truck and he told him it had. He recounted that it was little specks that had dried; that they were "little bitty tiny specks"; and that holes started developing. He said that the earlier incident involved foamy "stuff" that was hard to get off after it dried. He stated that most of the time, you saw foam in the air from the cooling towers, but that he had not seen foam in the air lately. He said that it did not happen all of the time, and that he did not see the foam coming out of the towers in September. He said that the damage in September was different than what had occurred in the past; that he did not file a claim in September; and that he did wash it off.

Mark Higginbotham testified that he was employed at the Georgia-Pacific chemical plant; that he had seen white foam in the air at Georgia-Pacific; and that it just vaporized out of the cooling towers. Higginbotham testified that the foam occasionally came out of the cooling towers; that they had to watch for it in the mornings; that you didn't want to be drinking coffee; that you looked to see which way the wind was blowing; that you didn't want to get any on you; that he had seen it land on cars and run off of cars; that nearly everything he had driven out there had been damaged because of it; and that he had been paid twice to have vehicles painted. He said that it was common. He explained that some days, when the clouds were low, they could see foam flying through the air from the cooling tower, depending on which way the wind was blowing. He said that it had always been a problem, and that he had actually seen it land on a car. He said that it looked like soap suds, that if ithit on an angle it would slide down as the little bubbles burst, and that it would dry as a white hazy film. He said that you could wash it off, but that after a little while there would be specks where the paint was chipped or shrunken and then you would see a crack. He said that down inside the specks, it was rust, and that the body shop said they have to sand down to the metal. He said that it ate through paint. He said that he was an operator for ten years and that now he was a maintenance technician; that he had installed the pumps; that he had been around these things for a long time; and that he saw them on a daily basis. He said that it seemed like the specks would eat into the paint whether you washed it off or not; that it would start off as white specks, dull-white in color; and that you could rub it off and it would be white on your finger, kind of chalky.

Greg Murphy, who owns Murphy's Auto Body and Frame, testified that he repairs and paints cars. He said that appellee brought a truck to him and was concerned about overspray, which was something that fell out of the air and landed on his truck. He said that he looked at the truck in preparing the estimate; that it was some kind of chemical fallout; that the reason he believed it was chemical was that he paints overspray all the time and it won't hurt because it will sit on top of the paint; that the matter on appellee's truck ate into the paint; that there was nothing to do but take it off because it ate through the paint and got in the metal. He said that he did not know what it was, so he didn't know how to neutralize it; that the only way to get rid of it was to remove all of it with an air sander, sanding it down to the metal and starting back up. He explained that that process was what appellee's truck needed. He said that at the time of trial, it would cost about $4,000 to repair. He said that he had seen a lot of this type of damage in Ashley County and that it was just around Georgia-Pacific. He said that to some extent he had to rely on what his customers told him; that he had not actually been at Georgia-Pacific to see any of this occur; that there were other substances that could show up as white specks; that while he could not say that the damage to appellee's truck was caused by Georgia-Pacific, he could say that it was caused by a mill; that the only place he has seen substances that would eat through paint was at a mill; and that the only other thing that would eat into it was acid rain, which he said looked completely different because it was caustic and made a circle.

Frankie Williams, who had worked at Georgia-Pacific for sixteen years, testified that on September 11, 2001, his truck was parked next to appellee's, and that they both had little white things all over them. He said that the substance showed up better on appellee's truck than on his. Williams testified that on that date, smoke was blowing directly out over the trucks from the plywood mill. He said that he was not there at the moment the damage occurred, but that he could state what he saw when he got back. He said that appellee's truck had white, grayish spots all over it; that it did damage to his truck as well; and that his damage was consistent with appellee's. He stated that he saw appellee's truck when he first bought it and that he did not notice it having any specks on it before the date in question. He said that he had seen foam in the air at Georgia-Pacific coming from the water-cooling towers; that if the wind was blowing from that direction, he parked farther out; that he had had the foam get on him, and that it burned. He said that he did not make a claim for damage; that he had the same adjuster that looked at appellee's truck look at his and make a report; that on that particular date, he saw smoke; that on that date, you "could scratch the black part off and it would be brown"; and that the specks on his vehicle were black.

Steve Sanders, employee-relations manager for the Georgia Pacific chemical plant, testified that appellee was employed at that facility. Sanders stated that he had been employee-relations manager for nine years; that he held that position on September 11, 2001; that he was familiar with the events in question; that he told appellee they would investigate; and that they could not verify any release of emissions, although they had earlier experienced some problems with foam on a mass scale. He said that the difference between appellee's situation and earlier situations where appellant had paid for paint jobs was that his was an isolated case, whereas in the past events more vehicles were involved. He said that there were no other claims or allegations of vehicle damage on that particular date. He said that appellee parked at the south end of the parking area and that the cooling tower in question was considerably north of that, inside the plant; and that between the tower and appellee's vehicle, there would be forty to sixty cars at any given time. He said that there would be ten to fifteen cars between where appellee parked and the stacks at the plywood mill. He testified that he personally reviewed and investigated the incident and could find no evidence of release or harmful emission from the chemical plant.

Robert Murphy testified that he worked at the Georgia-Pacific plywood mill; that they had a separate organizational structure; that he had been with Georgia-Pacific since August 1994; that he was the environmental coordinator; that he was responsible for what was emitted from the plywood mill; and that he kept up with all of the air emissions, water emissions, and solid waste. He stated that he reviewed the records regarding September 11, 2001; that there was nothing unusual; that everything was in compliance with the EPA permits; that there was nothing unusual about the pH of the scrubber water on that date; that the plywood mill did use caustic or corrosive substances such as sodium hydroxide, but that it was in a closed-loop system; that it was not exposed to the atmosphere; and that there was not any release on that date that could have potentially caused the damage. He explained that there were no cooling towers at the plywood mill, that they were located at the chemical plant.

James Walley testified that he worked at Georgia-Pacific Chemical, where appellee and Sanders worked; that he was the continuous-improvement specialist; that he had responsibilities for the environmental department there; that he monitored and kept track of any emissions or harmful emissions from the chemical plant; that he had held the position for ten years; that he was familiar with the environmental conditions and records for the date of September 11, 2001; and that to his knowledge there was not a harmful release from the chemical plant on that date. He said that if there had been one, he would have known. He said that the cooling tower basin on that date was approximately seven, which was neutral pH, and that there were no other records that could dispute that figure. He testified that there had been at least one reportable release in the last year; that there was one year where they had two releases; that they did have one incident on September 12, 2001; and that he had had the white froth fall on his head and skin, but that it had never burned him.

After reviewing the evidence, we conclude that there was substantial evidence to support the verdict and that the trial court did not err in denying appellant's motions. While appellant had witnesses who testified that emissions records demonstrated that neither the plywood nor the chemical plant had unusual emissions on the date in question, and that no one else reported a claim, appellee testified that there was no such damage on his car when he parked it at the plant and that there was when he returned. Also, even though he did not report damage to his vehicle, Frankie Williams testified that his truck received damage in the form of black specks on the same date as appellee's damage. We cannot say that there is no reasonable probability that the incident occurred according to appellee's version nor that fair-minded persons could only draw a contrary conclusion. Accordingly, we will not disturb the jury's verdict.

For its second point of appeal, appellant contends that the trial court erred in allowing certain "irrelevant and prejudicial testimony" at trial: 1) testimony regarding an additional possible source of damage, 2) testimony regarding previous emissions or damages. It is well settled that evidentiary matters regarding the admissibility of evidence are matters entirely within the trial court's discretion, and such matters will not be reversed absent an abuse of discretion. Allstate Ins. Co. v. Voyles, 76 Ark. App. 334, 65 S.W.3d 457 (2002). Moreover, we will not reverse based upon such an evidentiary ruling without a showing of prejudice. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003). We find no basis for reversal with respect to either of these subpoints.

Additional Possible Source of Damage

Appellant contends with respect to the first subpoint that the trial court erred in allowing testimony about possible emissions from the chemical plant, in addition to testimony regarding the plywood mill. The basis for its argument lies in the fact that the complaint and interrogatory responses referred to the "mill," or "plywood mill," rather than the chemical plant. Yet, at trial appellee focused on the chemical plant.

Appellant contends that it was prejudiced by the introduction of evidence concerning the chemical plant because it was denied the opportunity to prepare adequately to defend the entire Georgia-Pacific facility at that location. However, appellant did not request a continuance, and it presented testimony from James Walley, the emissions-control person at the chemical plant. Walley testified that he had reviewed the plant records, and he stated that to his knowledge there were no unusual emissions on that date that could have caused the problem. Appellant has not demonstrated how it was unable to address the testimony about the chemical plant that was allowed by the trial court. Without a showing of prejudice, we cannot reverse on this point.

Previous Emissions or Damages

Finally, appellant contends that it was error to allow testimony about previous emissions and related vehicle damage because it was irrelevant and prejudicial. It argues that allowing such testimony prejudiced appellant because the differences between such other events and events of the date in question were of "little probative value." Appellee counters that the testimony was relevant because it showed knowledge on the part of appellant.

Again, appellant has demonstrated no reversible error. The evidence was relevant to show that there was a history of these types of problems, that appellant was aware of the prior incidents, and that appellant had paid for paint jobs in the past when vehicles were damaged by emissions from the facility. Moreover, appellant's stated prejudice is simply not convincing. Accordingly, we find no basis for reversal with respect to this point.

Affirmed.

Hart and Vaught, JJ., agree.