Stacks v. Jones

John STACKS v. Randy JONES and Rita Jones

95-211                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 11, 1996


1.   Appeal & error -- damages argument not preserved below --
     argument not reached on appeal. -- Appellant's argument that
     there was no substantial evidence to support the jury's award
     of damages and that the damages were excessive as a matter of
     law and fact, was not preserved below; appellant attempted to
     cite to a case that had never been mentioned at trial and
     failed to object at trial to the evidence the appellees
     presented on the future-loss issue, nor did he make any effort
     to tender a jury instruction on the issue.

2.   Motions -- appellant's directed verdict motion failed to
     specify excessive damages as ground -- motion for directed
     verdict must state movant's specific grounds. -- Appellant's
     claim that he duly preserved the excessive-damages issue when
     he moved for a directed verdict at the end of the appellees'
     case and after all the evidence had been submitted was
     rejected by the court where his directed verdict motion failed
     to specify excessive damages as a ground; under Ark. R. Civ.
     P. 50(a), a motion for directed verdict must state the
     movant's specific grounds in order to assure the specific
     ground for a directed verdict is brought to the trial court's
     attention.  

3.   Civil procedure -- plain error rule rejected by court. -- The
     supreme court has consistently refused to accept or adopt a
     plain error rule, and refused to do so here.

4.   Appeal & error -- any error argued on appeal must first have
     been raised below -- appellant's failure to do so prevented
     supreme court from considering his argument. -- Under Ark. R.
     Civ. P. Rule 59(f), if a party has already properly preserved
     his or her error concerning any of the grounds listed in Rule
     59(a), that party is not required to make a motion for new
     trial in order to argue those grounds on appeal; nonetheless,
     because there is no provision in the rules for plain error,
     any error argued on appeal must have first been directed to
     the trial court's attention in some appropriate manner so that
     court had an opportunity to address the issue; the supreme
     court continues to adhere to the well-settled rule that issues
     not raised in the trial court will not be considered for the
     first time on appeal. 

5.   Trial -- refusal to give jury instruction proper --
     instruction inappropriate. -- Appellant's contention that the
     trial court erred in refusing to give an instruction regarding
     the appellees' duty to mitigate damages to real and personal
     property was without merit where the instruction in question
     is to be given only when there is evidence that a party
     claiming property damage has failed to mitigate damages; AMI
     2229 deals with physical damages to real or personal property;
     here, the appellees were seeking lost profits, not physical
     damages to property; accordingly, the trial court was correct
     in refusing appellant's proffer of AMI 2229.


     Appeal from Van Buren Circuit Court; David Reynolds, Judge;
affirmed.
     Timothy O. Dudley, for appellant.
     Donna J. Wolfe, for appellees.

     Tom Glaze, Justice.
*ADVREP4*






JOHN STACKS,
                    APPELLANT,

V.

RANDY JONES AND RITA JONES,
                    APPELLEES.



95-211

Opinion Delivered:  3-11-96

APPEAL FROM THE CIRCUIT COURT
OF VAN BUREN COUNTY, ARKANSAS,
NO. CV 93-20; HONORABLE DAVID
REYNOLDS, CIRCUIT JUDGE  


AFFIRMED




                  TOM GLAZE, Associate Justice

     On July 20, 1990, the appellees, Randy and Rita Jones, leased
a feed mill business from Mountaire Feeds, Inc. for five years. 
The lease contained an option to renew for an additional five years
at the end of the primary term.  During the primary term, appellant
John Stacks entered into negotiations to purchase the mill from
Mountaire, and those negotiations culminated in a sale on August
14, 1992.  At that time, Mountaire assigned the Joneses' lease to
Stacks.  Significantly, a wind storm had damaged the fertilizer and
seed storage bins on the leased property only four days prior to
Stacks's purchase of the property.  By letter dated October 30,
1992, Stacks told the Joneses he would not repair the storm damage
and he was terminating that portion of the lease involving the
fertilizer business.  Stacks further notified the Joneses that they
were in noncompliance with certain lease provisions.  Stacks, about
six weeks later, demanded the Joneses vacate the property.
     On March 11, 1993, the Joneses brought this lawsuit, alleging
Stacks had breached their lease agreement, and seeking damages
arising from that breach.  On September 29, 1994, this matter was
tried to a jury which returned a judgment in favor of the Joneses
in the sum of $137,797.00.  The trial court entered its judgment on
October 12, 1994, and Stacks's new counsel entered his appearance
and filed a timely motion for new trial on October 24, 1994.  That
motion alleged juror misconduct.  The record reflects no ruling on
Stacks's motion, but it shows he filed a timely appeal on
December 9, 1994.
     In his appeal, Stacks first argues there is no substantial
evidence to support the jury's award of damages.  He claims damages
are excessive as a matter of law and fact.  However, Stacks simply
failed to preserve his arguments below.  For example, he now cites
the case of Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145
(1990), in support of his contention that the jury erred in
awarding the Joneses damages covering future losses resulting from
the five-year lease renewal period.  Stacks argues the Burnette
decision, as a matter of law, bars the Joneses from recovering
damages extending beyond the primary term of the leasehold
interest.  While Stacks's argument might have some merit, the
Joneses point out Stacks never mentioned Burnette below, nor did he
object to the evidence the Joneses presented on this future-loss
issue.  In addition, Stacks also failed to tender an instruction on
the issue.
     Although Stacks concedes the Burnette issue was never raised
below, he claims that, as a matter of fact and under the evidence,
the future losses resulting from the renewal option had been
miscalculated and awarded by the jury.  As a consequence, he
claims he duly preserved the excessive-damages issue when he moved
for a directed verdict at the end of the Joneses' case and after
all the evidence had been submitted.  We must reject Stacks's
argument on this point because his directed verdict motion failed
to specify excessive damages as a ground.  Under Ark. R. Civ. P.
50(a), a motion for directed verdict must state the movant's
specific grounds.  The purpose of this requirement is to assure the
specific ground for a directed verdict is brought to the trial
court's attention.  See Standridge v. City of Hot Springs, 271 Ark.
754, 610 S.W.2d 574 (1981).
     Stacks also cites Ark. R. Civ. P. 59 in an attempt to salvage
his appeal, and argues that rule provides that an error in the
assessment of the amount of recovery, whether too large or too
small, is a ground for granting a new trial.  He further asserts
provision (f) of Rule 59 provides that it was unnecessary for him
to move for a new trial in order to preserve error concerning the
damages issue.  In other words, Stacks suggests that any of the
Rule 59(a) grounds for a new trial (like excessive damages) can be
urged on appeal without ever having brought those grounds to the
attention of the trial court.
     We first make the observation that, if we accepted Stacks's
interpretation of Rule 59(f), we would be adopting a plain error
rule -- a rule this court has steadfastly rejected.  See Lynch v.
Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993).  Second, while Stacks
complains that it was impossible for him to have complained about
excessive damages until after the jury returned its verdict, he
ignores the fact that he failed to object to any of the Joneses'
evidence bearing on damages that he now claims on appeal are
erroneous as a matter of law.  For example, he allowed, without
objection, the Joneses' economic expert to testify thoroughly as to
the future losses he now claims violate the holding in Burnette. 
Likewise, he failed to object to the Joneses' testimony on lost
profits, but instead seeks to question that evidence for the first
time in this appeal.  And finally, we note Stacks never offered any
jury instructions bearing on these damage issues, or any setoff
matters that he now argues he is legally due.
     Clearly, under Rule 59(f), if a party has already properly
preserved his or her error concerning any of the grounds listed in
Rule 59(a), that party is not required to make a motion for new
trial in order to argue those grounds on appeal.  Cf. Hall v.
Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994).  Nonetheless,
because our rules do not provide for plain error, any error argued
on appeal must have first been directed to the trial court's
attention in some appropriate manner, so that court had an
opportunity to address the issue.  Our court continues to adhere to
the well-settled rule that issues not raised in the trial court
will not be considered for the first time on appeal.  Lynch, 312
Ark. at 82, 847 S.W.2d  at 33.
     In his second point for reversal, Stacks contends the trial
court erred in refusing to give an instruction regarding the
Joneses' duty to mitigate damages.  The trial court refused,
stating no evidence existed to support such an instruction.
     Stacks proffered AMI 2229 which is the instruction on the
mitigation of damages to real and personal property.  The note on
use to AMI 2229 explains the instruction should be given only when
there is evidence that a party claiming property damage has failed
to mitigate damages.  This court in Twin City Bank v. Isaacs, 283
Ark. 127, 672 S.W.2d 651 (1984), stated that AMI 2229 deals with
physical damages to real or personal property covered by AMI 2222
through 2228.  Here, the Joneses were seeking lost profits, not
physical damages to property.  Accordingly, the trial court was
correct in refusing Stacks's proffer of AMI 2229.
     For the reasons hereinabove, we affirm.
     NEWBERN, J., concurs.March 11, 1996   *ADVREP4A*


                                   95-211
JOHN STACKS and BEVERLY STACKS

               Appellants

            v.

RANDY JONES and RITA JONES

               Appellees           Concurring Opinion





                     David Newbern, Justice.


     Arkansas Rules of Civil Procedure 59(f) provides: "A motion
for a new trial shall not be necessary to preserve for appeal an
error which could be the basis for granting a new trial."  That
provision was added to the rule in 1984 to restore to Arkansas
practice the provision previously found in superseded Ark. Stat.
Ann.  27-2127.5 (Repl. 1962).  Prior to 1984 it was not to be
found in the Rules, which became effective in 1979.  
     In Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), the
appellants argued that a judgment which resulted in no damages to
them as plaintiffs in an automobile negligence case should be
overturned because the verdict of the jury was against the
preponderance of the evidence.  Rule 59(a)(6) provides that a new
trial may be granted because "the verdict or decision is clearly
contrary to the preponderance of the evidence."  No motion for a
new trial had been made.  We wrote:

          Mr. and Mrs. Hall's sole point on appeal is that the jury
     verdict was against the "great weight and preponderance of the
     evidence."  The Halls did not move for a new trial and this is
     not an appeal from the denial of a motion for a new trial. 
     See ARCP Rule 59(a)(6).  It is not necessary to move for a new
     trial to preserve for appeal any error which could be the
     basis for granting a new trial.  ARCP Rule 59(f).  Rule 59
     specifically states a motion for new trial may be granted for
     eight reasons, one of which is where the verdict is clearly
     contrary to the preponderance of the evidence.  [Emphasis
     supplied.]

     The majority opinion suggests that Rule 59(f) only obviates
the need to move for a new trial to preserve an error which could
be the basis of one of the eight grounds and that an error
constituting one of the eight grounds must have been preserved by
objection in some other context in order to be considered on
appeal.  If that is the case, Rule 59(f) has no utility or meaning. 
We posed no such requirement in the Hall case or in cases decided
under the predecessor statute.  In Southern National Ins. Co. v.
Williams, 224 Ark. 938, 277 S.W.2d 487 (1955), it was argued that
the appellant could not question excessiveness of damages on appeal
absent having challenged the award in the Trial Court.  We wrote:

          As a preliminary matter it is contended that the
     appellant is not entitled to question the amount of the
     verdict, for the reason that the liberality of the award was
     not challenged in the trial court.  This argument would
     formerly have been meritorious.  By the Civil Code
     excessiveness of the damages was a ground for a new trial. 
     Ark. Stats.,  27-1901, and the error was waived if not
     assigned in the motion for a new trial.  St. L., I.M. & S. R'y
     v. Branch, 45 Ark. 524.  But Act 555 of 1953 provides that no
     motion for a new trial and no assignment of errors shall be
     necessary.  Ark. Stats.,  27-2127.5.  Thus the old rule has
     apparently been abrogated.

Similar language and a similar holding occurred in Lake v. Lake,
262 Ark. 852, 562 S.W.2d 68 (1978).
     Despite the fairly longstanding history of this seeming
exception to the "plain error rule" in this State, there is no good
reason not to require that the trial court be apprised by motion of
a ground for a new trial as a prerequisite to an appeal seeking a
new trial.  While I cannot interpret Rule 59(f) as strictly as the
majority opinion does, I would interpret it in such a way as to
preclude it from becoming a mask for objections which could have
been, but were not, made at the trial.
     In this case, the Stackses argue entitlement to a new trial
due to an excessive award of damages.  While that seems to fit the
ground stated in Rule 59(a)(4) or (5), the supporting argument is
that irrelevant evidence was admitted to prove damages which should
not have been recoverable as a matter of law.  We should not review
that evidentiary issue under the guise of Rule 59(a)(4) or (5).
     Subsection (f) should be excised from Rule 59.  Until that
occurs we, and thereafter the trial courts, should limit the
granting of relief under Rule 59 to instances in which the new
trial motion or argument on appeal is not a cover for alleged
errors which should have been, but were not, called to the trial
court's attention in other ways.  To that extent I concur with the
majority opinion, and I fully concur in the result it reaches.