W.E. Pender & Sons, Inc. v. Lee
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ARKANSAS COURT OF APPEALS
DIVISIONS II, III & IV
No. CA08-403
Opinion Delivered May
W. E. PENDER & SONS, INC.
APPELLANT
20, 2009
APPEAL FROM THE PERRY
COUNTY CIRCUIT COURT
[NO. CV-05-25]
V.
HONORABLE TIM FOX, JUDGE
BURTON LEE
APPELLEE
DISSENT ON DENIAL OF
REHEARING
JOSEPHINE LINKER HART, Judge
This court reversed the granting of a new trial. Burton Lee’s petition for rehearing
argues that the majority misapplied the standard of review. I agree. Numerous cases in which
our appellate courts have reviewed grants of new trial have repeatedly observed that a stronger
showing of abuse of discretion is necessary when a new trial has been granted, on the theory
that the beneficiary of the verdict that was set aside will have another opportunity to prevail
and has less basis for a claim of prejudice than does one who has unsuccessfully moved for a
new trial. See, e.g., Virginia Ins. Reciprocal v. Vogel, 73 Ark. App. 292, 43 S.W.3d 181 (2001).
Further, numerous cases have stated that on appeal from the grant of a new trial, we will
affirm unless there has been a manifest abuse of discretion, which means discretion
improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id. A
circuit court’s factual determination on a motion for a new trial will not be reversed unless
clearly erroneous. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).
The majority turns the standard of review upside down. Its analysis suggests that the
appellee must establish prejudice and that we not give due deference to the circuit court’s
findings of fact. On appeal, however, the burden of establishing prejudice is always on the
appellant, not the appellee, and, as always, in reviewing a circuit court’s decision, we examine
the evidence supporting the circuit court’s decision and give full consideration to the court’s
determination of the weight and credibility of the evidence. It is as if the majority instead was
affirming the denial of a motion for new trial, and that Burton was not the appellee, but
instead the appellant.
B AKER and B ROWN, JJ., join.
-2-
CA08-403
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