Virginia A. Elder v. Alma L. Boyd

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

VIRGINIA A. ELDER

APPELLANT

V.

ALMA L. BOYD

APPELLEE

CA05-118

September 7, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CV 2003-1398]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

On March 7, 2003, appellant Virginia A. Elder and appellee Alma L. Boyd were involved in an automobile accident. Appellant filed a complaint, alleging negligence, and the Sebastian County Circuit Court entered a default judgment against appellee when she failed and refused to enter her appearance, file an answer, or otherwise defend the action. A hearing was held on the issue of damages, and in an order filed on October 14, 2004, the trial court awarded $5,374.09 to appellant. Appellant raises several pro se points on appeal: (1) although she was granted a default judgment, her attorney made no attempt to recover the award; (2) her attorney failed to file her medical bills to the insurance provider, which resulted in her being sued; (3) her attorney should have filed a motion for continuance until her physician could assess her injury and determine the duration of treatment and level of disability; (4) appellee presented no "live, direct, indirect or circumstantial" evidence to deny her claim for a chronic injury; (5) the trial court erred in assessing damages because Dr. Jeff Medlock's medical findings were "suppressed"; (6) the amount awarded does not cover

attorney's fees, costs, depreciation of her vehicle, loss of future income, physical pain and suffering, mental pain and suffering, and medical bills (including money for doctors, hospital care, and past and present medication). We affirm.

At a bench trial held on October 6, 2004, appellant's husband Edward Elder testified that he received a phone call from his wife on the morning of March 7, 2003, during which she stated that she had been involved in a motor-vehicle collision. According to Elder, when he arrived at the scene, appellant was still sitting in her car where the wreck had occurred and the police were not there yet. Elder stated that his wife was in shock and said she was hurting. An ambulance was summoned, and appellant was taken to St. Edward Mercy Medical Center where she was treated and released. Elder stated that, prior to the wreck, his wife had been in excellent health but that, since the wreck, his wife was unable to engage in ordinary activities because of her constant pain. He stated that appellant is reluctant to drive and is "jumpy" in the car even when she is a passenger. According to Elder, his wife had been involved in an automobile accident in 1994, in which she made a claim and recovered money for her injuries. Regarding the damage to appellant's 2002 Chevrolet Cavalier, Elder testified that they paid approximately $17,000 for the car fourteen months prior to the accident. He said that $3,210.71 was paid toward repairing the car but that it did not drive the same. Elder stated that he did not have any idea what the value of the car was at the time of the accident but that it was probably diminished fifteen to twenty percent after normal depreciation.

Appellant testified that on the morning of the accident she had taken an exit off the highway and had come to a yield sign. She said she came to a complete stop because traffic was heavy and she could not merge. Appellant testified that, within three or four minutes, she heard a "boom" at the back of her car. She said that while she remained inside her car,appellee approached her vehicle with a cell phone in her hand. Appellant said that appellee did not ask if she was all right. According to appellant, appellee acknowledged that the accident was her fault and asked her to move her car so that they would not block traffic. Appellant told appellee she would not move her car until the police arrived. Soon afterwards, a police officer instructed appellant and appellee to move their cars to the Diamond Shamrock gas station. Appellant said she did not at any time get out of her car until the ambulance transported her to the hospital. She said she had pain in the pit of her stomach, the left side of her neck, and her back. Appellant called her husband, and he arrived once she was parked at the gas station. According to appellant, an officer asked her husband if she needed an ambulance, and Elder said "yes." She acknowledged that she did not mention her injuries to the police officer before that time.

Appellant said she was treated and released at the hospital and was given pain medication. She denied reporting a history of back problems to the medical staff and stated that she did not have back problems. Five days later, she sought follow-up care with her family physician, Dr. Samuel Koenig, III. Appellant said that Dr. Koenig did not do much on the first visit but that on the second visit, he instructed her to have physical therapy at St. Edward Mercy Medical Center. She stated that the physical therapy did not improve her condition, and she denied telling her physical therapist that she was free of pain when she was discharged. She returned to Dr. Koenig after she had completed physical therapy on April 3, 2003. She said that Dr. Koenig told her to go home, that it would be all right, and to continue her exercises. Appellant stated that she attempted to see Dr. Koenig again but that he refused to see her because of an unpaid bill. In January 2004, appellant began seeing Dr. Jeffrey Medlock, and he referred her to have more physical therapy at the Cooper Clinic. She said that she did not notice any improvement in her condition and that she was still in pain.

Appellant offered into evidence Dr. Medlock's deposition testimony, and appellee objected on the basis that Dr. Medlock had refused to testify that the condition for which he treated appellant was caused by the March 7, 2003, automobile accident. The trial judge stated that he would read the deposition and determine whether Dr. Medlock's testimony would be considered. At the conclusion of the hearing, both parties agreed that submitting briefs regarding the issue of admissibility of Dr. Medlock's testimony would be unnecessary. The hearing then ended, and there is no indication in the record as to whether the trial judge ultimately admitted Dr. Medlock's deposition testimony.

Appellee introduced Dr. Koenig's deposition testimony without objection. Dr. Koenig stated that he saw appellant on March 12, 2003, and that he diagnosed a mild cervical strain and contusions on the chest area that were caused by her seatbelt. He stated that there were no objective indications of injury to her neck or back. He testified that appellant kept coming back to him with complaints of pain, so he ordered an MRI of her lumbar region to rule out the possibility of any unseen or occult damages that might have been missed. The MRI was negative or normal. The doctor noted that on April 2, 2003, he observed appellant as she left the office and that she was able to walk to her car and get into her car without any apparent disturbance of gait, obvious discomfort, or facial grimacing. He stated, "I felt that she may have been trying to establish findings in a medical record for purposes other than just medical care." He opined that appellant was completely recovered on her last visit to his office, which was April 30, 2003.

Elizabeth Johnson, a licensed physical therapist assistant, testified by deposition that upon Dr. Koenig's referral she assisted in the treatment of appellant. She stated thatappellant received six physical therapy treatments commencing on April 11, 2003, and ending on April 29, 2003. Johnson stated that, on the initial evaluation by the therapist, appellant had some tenderness and tension in her cervical area. Johnson stated that on April 29, 2003, when she was discharged, appellant told her she was completely pain free in her cervical and lumbar areas.

Officer George Donald Cobb, Jr., with the Fort Smith Police Department testified that both appellant and appellee were inside their vehicles when he arrived at the scene of the accident. He stated that the first thing he did was ask if there were any injuries, and no injuries were reported. Officer Cobb stated that, after appellant's husband arrived at the gas station, an ambulance was summoned for her.

Appellee testified that on March 7, 2003, she saw appellant's vehicle in front of her and began tapping her brakes. She stated that a can of Diet Coke that had been resting in the console rolled under her feet. Appellee said she could not stop her vehicle and subsequently hit appellant's car. Appellee stated that appellant got out of her car and walked around saying that it was not her (appellant's) fault. Appellee said that they both looked at the damage to their vehicles. Contrary to appellant's testimony, appellee stated that she asked appellant if she was all right and that appellant responded that she was. Appellee testified that she admitted to appellant that it was her fault and she asked appellant to move her car, which appellant refused to do. She stated that appellant's husband arrived once they had moved to the gas station.

From the outset, we point out that pro se litigants are held to the same standard as attorneys. See, e.g., Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). We refer appellant to Rule 4-2 of the Arkansas Rules of the Supreme Court, which sets forth the requirements as to the contents of appellate briefs. The abstract of the transcript shouldconsist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Here, appellant's abstract consisted of two and one-half pages, summarizing the procedural history to some extent, commenting on issues the court did not discuss, and including one sentence of testimony from Edward Elder. Fortunately, appellee submitted a supplemental abstract that complies with the rules. Also, appellant included only the notice of appeal in her addendum and not the order appealed from or any exhibits regarding her medical diagnoses and expenses. Once again, appellee supplied those necessary documents.

We need not address appellant's first three arguments regarding the legal services rendered by her attorney because they are not preserved for appeal. An argument not raised below will not be considered for the first time on appeal. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002).

Appellant's fourth argument is that appellee did not present "live, direct, indirect or circumstantial" evidence to deny her claim for a chronic injury. In her brief, appellant seems to be complaining about both her attorney and appellee's attorney. She contends that they made no attempt "to point out questions, documents or (live) testimony to support their case" and essentially expected the judge to present their cases for them. Again, appellant's argument is not preserved because it was not raised in the trial court. Webb, supra. To the extent that appellant is arguing that the trial court erred in allowing testimony to be introduced through depositions, appellant has waived that argument because she did not object to the depositions at the time of the hearing. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989).

Appellant's fifth argument is that the trial court "suppressed" Dr. Medlock's deposition testimony. A trial court's decision to admit evidence is within its discretion and will not be reversed absent an abuse of discretion. Aka v. Jefferson Hosp. Ass'n, 344 Ark. 627, 42 S.W.3d 508 (2001). The trial judge ruled that he would read Dr. Medlock's testimony and determine whether it could be considered; however, we cannot ascertain the trial judge's ultimate ruling on its admissibility. A party's failure to obtain a ruling is a procedural bar to this court's consideration of the issue on appeal. Henyan v. Peek, ___ Ark. ___, ___ S.W.3d ___ (Dec. 2, 2004). It was appellant's burden to procure a ruling, thus her argument is waived. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).

Finally, appellant complains that the amount of money awarded to her is inadequate. The trial court awarded $5,374.09, but it is not clear how the judge arrived at that figure. Because appellant did not request specific findings of fact, we can only review the general damages award as a whole. In a bench trial, we do not reverse the trial court's judgment unless its findings were clearly against the preponderance of the evidence. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 43 S.W.3d 175 (2001). Appellant did not provide any evidence in her addendum regarding damages, but appellee included in her addendum Plaintiff's Exhibit 12, which is a summary of appellant's medical expenses, totaling $6,782.18. We note that $2,503.17 of the total was incurred by appellant after she was discharged by Dr. Koenig on April 30, 2003. In addition, Dr. Koenig, appellant's own family physician, suspected that she was malingering. Under these circumstances, we simply cannot conclude that the trial court's award of $5,374.09 was clearly against the preponderance of the evidence.

Affirmed.

Neal and Baker, JJ., agree.