Zhan v. Sherman

Ge ZHAN v. Nancy E. SHERMAN

95-794                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Automobiles -- measure of damages -- proving damages for
     property that is not a total loss. -- Under Arkansas law, the
     measure of damages to automobiles is the difference in the
     fair market value of the automobile before and immediately
     after the accident; when proving damages for property that is
     not a total loss, the difference in fair market value may be
     established by the reasonable cost of repairing the damaged
     property. 

2.   Property -- determination as to amount of damages -- property
     owner may give own opinion as to the value of the damaged
     property. -- The supreme court has consistently allowed the
     property owner to give his or her opinion of the value of
     damaged property.

3.   Evidence -- nonjury case should not be reversed because of the
     admission of incompetent evidence -- when reversal is proper -
     - estimate evidence did not affect trial court's findings or
     award of damages. -- A nonjury case should not be reversed
     because of the admission of incompetent evidence, unless all
     of the competent evidence is insufficient to support the
     judgment or unless it appears that the incompetent evidence
     induced the court to make an essential finding which would not
     otherwise have been made; here, the repair estimate amount was
     only $122.91 more than the competent value testimony given by
     the car's owner, thus that estimate evidence could not be said
     to have affected the trial court's findings or award of
     damages any more than appellee's testimony.

4.   Automobiles -- factfinder given latitude in its decision in
     awarding damages -- award of damages supported by competent
     evidence. -- The factfinder, jury or trial court, has some
     latitude in its decision in awarding damages when arriving at
     a fair market value figure and exactness on the proof of
     damages is not required; if it is reasonably certain that some
     loss has occurred, it is enough they can be stated only
     proximately; here the competent evidence supported the trial
     court's award of $800.00 for the car's damages.

5.   Damages -- award for damaged fence affirmed -- competent
     testimony regarding cost of the fence's repair not objected
     to. -- Appellant complained about the trial court's ruling,
     allowing appellee to introduce an invoice or bill, reflecting
     the fence damage amounted to $134.36; however appellant's
     complaint that the bill was inadmissible, prejudicial hearsay
     requiring reversal ignored appellee's unobjected to testimony
     that she had paid $134.36 for the repair of the fence; based
     on this competent evidence, the trial court's award for the
     damaged fence was affirmed.

6.   Civil procedure -- costs authorized to the prevailing party
     pursuant to rules of civil procedure -- trial judge's award of
     authorized costs is discretionary. -- Under ARCP Rule 54(d),
     costs authorized by statute or by the rules of civil procedure
     shall be allowed to the prevailing party if the court directs,
     unless a statute or rule makes an award mandatory; Rule 54(d)
     has been construed to give the trial judge discretion in
     awarding authorized costs.

7.   Appeal & error -- objection to trial court's award of costs
     could have been raised below -- matter not raised below not
     addressed on appeal. -- The trial court's award of costs was
     affirmed because appellant could have raised this issue after
     the judgment was entered; if she believed the trial court
     erred in its cost award, she could have requested the judgment
     be amended to comport with the proof and law; because
     appellant failed to raise that issue below, the appellate
     court would not consider it on appeal. 


     Appeal from Pulaski Circuit Court; Morris Thompson, Judge;
affirmed.
     Craig Lambert, for appellant.
     James, Yeatman & Carter PLC, by:  Paul J. James, for appellee.

     Tom Glaze, Justice.*ARKREP6*






GE ZHAN,
                    APPELLANT,

V.

NANCY E. SHERMAN,
                    APPELLEE.



95-794

Opinion Delivered:  1-22-96

APPEAL FROM THE CIRCUIT COURT
OF PULASKI COUNTY, ARKANSAS,
NO. CV 94-6912; HONORABLE
MORRIS THOMPSON, CIRCUIT JUDGE 


AFFIRMED




                  TOM GLAZE, Associate Justice
     In March of 1993, appellee Sherman advertised the sale of her
1983 Oldsmobile in the newspaper.  Her ad asked for $2,500, but she
hoped to get $2,200.00, which is what she believed the car was
worth.  Appellant Ge Zahn responded to Sherman's ad.  Sherman
permitted Zahn to test drive the car which was parked in Sherman's
driveway.  The car was on a slope and when Zahn entered the car,
she pulled the gear shift out of park before turning on the engine. 
As a consequence, the car rolled down the driveway where it ran
into someone's fence.  The fence and the right rear quarter panel
of the car were damaged.  A Little Rock police officer, Tommy
Hudson, came to investigate the accident and while there, pulled
the car out of the fence.  As a result of Zahn's actions, Sherman
paid for damages to the fence and ended up selling her damaged car
to a third party, Herb Peach, for 1,000.00, less $200.00 which
Sherman agreed to pay for repairing the car's radiator.
     Sherman later filed suit against Zahn, alleging Zahn's
negligence had caused her damages in the amount of $1,334.36.  A
bench trial resulted, and after hearing the testimony of Sherman,
Zahn, Police Officer Hudson and Peach, the trial court found Zahn's
negligence caused Sherman damages in the amount of $800.00 to the
car and $134.36 to the fence.  The trial court also awarded $189.64
to Sherman for costs.  On appeal, Zahn does not question the trial
court's finding of negligence, but instead claims the trial court
erred in calculating Sherman's damages in the amount of $989.64 and
arguing the amount was based upon speculation and inadmissible
hearsay.  Zahn also argues the trial court erred in awarding costs,
stating the amount awarded is not supported by the record.
     In her first argument, Zhan recognizes that, under Arkansas
law, the measure of damages to automobiles is the difference in the
fair market value of the automobile before and immediately after
the accident.  See Ark. Code Ann.  27-53-401 (1987); AMI Civil 3d
2210 (1989); Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886
(1984).  This court has also held that, when proving damages for
property that was not a total loss, the difference in fair market
value may be established by the reasonable cost of repairing the
damaged property.  Minerva Enter., Inc. v. Howlett, 308 Ark. 291,
824 S.W.2d 377 (1992).  Here, Zahn concedes Sherman showed her car
was worth $2,200.00 before Zahn damaged it.  However, Zahn's
contention is that Sherman failed to prove the value of her car
after the accident.  Zahn is wrong.
     This court has consistently allowed the property owner to give
his or her opinion of the value of damaged property.  Hickman v.
Carter, 315 Ark. 678, 870 S.W.2d 382 (1994); Minerva Enter., Inc.,
308 Ark. 291, 824 S.W.2d 377.  Here, Sherman testified that the
after value of her car was $1,000.00, making the difference in the
fair market value or loss to be $1,200.00 ($2,200.00 minus
$1,000.00).  The trial court questioned Sherman's after-value
figure, suggesting the evidence reflected that her damaged car was
worth more than $1,000.00.  In fact, the trial court entered
judgment in the amount of $800.00, which reflects a higher after
value than Sherman gave her damaged car.  Sherman never questioned
the trial court's reduction of Sherman's proposed $1,200.00 damage
amount; instead, it is Zahn who complains that the damages were
awarded in error.
     Zahn argues that it is unclear how the trial court arrived at
its $800.00 figure, and therefore the amount was undoubtedly based
upon speculation.  In sum, Zahn asserts Sherman did not present
sufficient evidence of the fair market value of the car. 
Additionally, she says the court committed reversible error when it
allowed Sherman to introduce inadmissible hearsay, a repair
estimate, which reflected the cost to repair Sherman's car was
$1,077.09.  
     We would initially point out that regardless of the
inadmissibility of the repair estimate introduced by Sherman, this
court has held that a nonjury case should not be reversed because
of the admission of incompetent evidence, unless all of the
competent evidence is insufficient to support the judgment or
unless it appears that the incompetent evidence induced the court
to make an essential finding which would not otherwise have been
made.  Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). 
First, the repair estimate amount was only $122.91 more than the
competent value testimony given by Sherman; thus that estimate
evidence cannot be said to have affected the trial court's findings
or award of damages any more than Sherman's testimony.
     We next mention that, besides Sherman's owner-value testimony
concerning damages, Officer Hudson testified, without objection,
that he believed Sherman's car had been damaged in the approximate
amount of $200.00.  Peach, the purchaser of the damaged vehicle,
concluded he believed the car was worth the $1,000.00 he was
willing to pay for it.  In sum, the evidence reflects the car
damages ranged from as much as $1,200.00 and as little as $200.00. 
     Our cases give the factfinder, jury or trial court, some
latitude in its decision in awarding damages when arriving at a
fair market value figure and have not required exactness on the
proof of damages.  See Lancaster v. Schilling Motors, Inc., 299
Ark. 365, 772 S.W.2d 349 (1989); Moore Ford Co. v. Smith, 270 Ark.
340, 604 S.W.2d 943 (1980); see also Jim Halsey Co. v. Bonar, 284
Ark. 461, 683 S.W.2d 898 (1985).  If it is reasonably certain that
some loss has occurred, it is enough they can be stated only
proximately.  Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992).  We conclude that is the situation here and hold
the competent evidence supports the trial court's award of $800.00
for the car's damages.
     In presenting her first argument, Zahn also complains about
the trial court's ruling, allowing Sherman to introduce an invoice
or bill, reflecting the fence damage amounted to $134.36.  Again,
Zahn's complaint is that the bill was inadmissible, prejudicial
hearsay requiring reversal.  In making this argument below and on
appeal, Zahn ignores Sherman's unobjected to testimony that she had
paid $134.36 for the repair of the fence.  Based on this competent
evidence, we affirm the trial court's award for the damaged fence.
     For her second point, Zahn argues that, at the close of the
trial below, the trial court ordered Zahn to pay Sherman's costs in
the amount of $44.24, including filing fee and service costs. 
These costs were mentioned during trial.  However, when the trial
court's judgment was entered, it awarded $189.64 in costs.  Based
on the record, Zahn submits she is obligated to pay only the filing
fee cost because Sherman waived service costs at trial and limited
her cost request to the filing fee.
     Under ARCP Rule 54(d), costs authorized by statute or by the
rules of civil procedure shall be allowed to the prevailing party
if the court directs, unless a statute or rule makes an award
mandatory.  In construing this rule, our court has held that Rule
54(d) gives the trial judge discretion in awarding authorized
costs.  Darragh Poultry & Livestock Equip. Co. v. Piney Creek
Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988).
     We affirm the trial court's award of costs because Zahn could
have raised this issue after the judgment was entered.  See ARCP
Rule 52 (a) and (b).  If Zahn believed the trial court erred in its
cost award, she could have requested the judgment be amended to
comport with the proof and law.  Because Zahn failed to raise that
issue below, we will not consider it on appeal.  Oglesby v. Baptist
Medical Sys., 319 Ark. 280, 891 S.W.2d 48 (1995).