Clowney v. Gill

Charles CLOWNEY and V & H Logging, Inc. v.
Harley and Agnes GILL and Jeff Denman

96-349                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 14, 1996


1.   Evidence -- preservation of sufficiency of evidence argument
     on appeal -- argument not properly preserved. -- To preserve
     a sufficiency of the evidence argument on appeal, a motion for
     directed verdict must have been made at the close of the
     plaintiff's case-in-chief and again at the conclusion of all
     the evidence; here, appellants failed to make any directed-
     verdict motion, and as a consequence, the court could not
     consider their sufficiency of evidence argument on appeal.

2.   Jury -- preservation of objection concerning instructions --
     grounds of objection must be clear at trial. -- No party may
     assign as error the giving or failure to give an instruction
     unless he objects before or at the time the instruction is
     given, stating distinctly the matter to which he objects and
     the grounds of his objection. 

3.   Jury -- no objection to instructions found in record --
     objections could not be considered on appeal. -- Where the
     record failed to reflect that either appellant timely objected
     to the jury instructions questioned by them on appeal or that
     appellants had made timely objection to the jury instructions
     and specified their grounds at an in camera hearing in the
     trial court's chambers prior to the jury receiving its
     instructions, appellants failed to present a record of their
     timely objections with stated grounds; the court does not
     consider belated objections on appeal; it is appellant's duty
     to demonstrate error in the proceedings below and to bring up
     a record sufficient to demonstrate error.  

4.   Appeal & error -- bench conferences and in-chambers
     conferences should be on the record -- trial court has duty to
     preserve record after it is made. -- All bench conferences and
     in-chambers conferences should be "on the record" unless they
     involve matters unrelated to the current trial, in which case,
     a note to that effect may be made in the record; while it is
     the responsibility of the trial court to see that a fair and
     adequate record of a trial is preserved, counsel must be
     diligent and responsible for seeing that one is made. 


          Appeal from jefferson Circuit Court; H.A.Taylor, Judge;
affirmed.
     Claude W. Jenkins, for appellant.
     Russell D. Berry, for appellees Harley and Agnes Gill.
     Brad Green, for appellee Jeff Denman.

     Tom Glaze, Justice.
     This appeal arises from the appellants, Charles Clowney and
V & H Logging, Inc., wrongly cutting timber located on Harley and
Agnes Gills' land.  Clowney hired appellee Jeff Denman, a forester,
to locate and re-mark the boundary lines of Clowney's property, but
in doing so, gave Denman an ownership map which mistakenly showed
forty acres of the Gills' land as belonging to Clowney.  After the
cutting began, the Gills notified V & H that it was logging their
land and demanded V & H cease its operation.
     The Gills later brought suit against Clowney and V & H for
trespass and for having harvested the Gills' trees.  They sought
treble damages.  Clowney and V & H filed a third-party negligence
action against Denman who counterclaimed for indemnification. 
Denman also sued Clowney for breach of contract.
     The trial court granted a partial summary judgment finding the
Gills owned the land on which the timber was wrongfully cut and
also determined Clowney and V & H were liable for trespass when
cutting the timber.  Following trial, the jury awarded the Gills
treble damages in the sum of $135,000.00 against Clowney and V & H. 
The jury further rendered a verdict in Denman's favor against
Clowney for $763.27 and returned a defendant's verdict for Denman
on Clowney's and V & H's third-party claim.  Clowney and V & H now
appeal, raising three points for reversal.  Unfortunately, we are
unable to reach the merits regarding any of the three arguments.
     We first consider Clowney's and V & H's argument that the
evidence was insufficient to have made the treble damages award or
the award of damages on Denman's contract claim.  In order to
preserve a sufficiency of the evidence argument on appeal, a motion
for directed verdict must have been made at the close of the
plaintiff's case-in-chief, and again at the conclusion of all the
evidence.  Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994); Ark. R. Civ. P. 50(a) and (e).  As the Gills and Denman
point out, Clowney and V & H failed to make any directed verdict
motion, and as a consequence, we cannot consider their sufficiency
of evidence argument on appeal.    
     Clowney's and V & H's other two arguments question the trial
court's giving certain jury instructions.  This court's settled
law, however, is that no party may assign as error the giving or
failure to give an instruction unless he objects thereto before or
at the time the instruction is given, stating distinctly the matter
to which he objects and the grounds of his objection.  Newton v.
Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994); MIC v. Barrett, 313
Ark. 527, 855 S.W.2d 326 (1993).
     Here, the record fails to reflect that either Clowney or V & H
timely objected to the jury instructions now questioned on appeal. 
The record does show they objected to the instruction on treble
damages, but their objection was interposed after the jury had
returned its verdict and the jurors had been excused.
     Clowney and V & H mention that they had timely objected to the
jury instructions and specified their grounds at an in camera
hearing in the trial court's chambers prior to the jury receiving
its instructions, but that hearing was not recorded.  In Barrett,
we were met with the same problem and reiterated the rule that it
is appellant's duty to demonstrate error in the proceedings below
and to bring up a record sufficient to demonstrate error.  Barrett,
313 Ark. at 350.  Here, Clowney and V & H fail to present a record
of their timely objections with stated grounds, and we are unable
to consider belated objections on appeal.  
     We emphasize once again that all bench conferences and in
chambers conferences should be "on the record" unless they involve
matters unrelated to the current trial, in which case, a note to
that effect may be made in the record.  Fountain v. State, 269 Ark.
454, 601 S.W.2d 862 (1980); see also McDonald v. Wilcox, 300 Ark.
445, 780 S.W.2d 17 (1989); ARCP, Adm. Order No. 4 (1991).  While it
is the responsibility of the trial court to see that a fair and
adequate record of a trial is preserved, counsel must be diligent
and responsible to seeing one is made.  Fountain, 269 Ark. at 456.
     In reviewing the record, we do find where the trial court
attempted to recall and recite one of the instructions to which 
Clowney and V & H objected, but that attempted recreation of the
hearing made no mention of any grounds for the objection.  We also
note Clowney's and V & H's argument that one of the instructions
was a binding and inherently erroneous one, and that only a general
objection was necessary to raise the instruction's validity on
appeal.  While that may be true, no objection was shown to have
been made concerning the purported binding instruction.
     Because the points raised on appeal were not properly
preserved at trial, we must affirm without considering the merits
of those arguments.