Financial Benefit Life Insurance Company et al. v. Mark Weedman, Jr. et al.

Annotate this Case
FINANCIAL BENEFIT LIFE INSURANCE CO., and
Billie Hendricks, as Administrator of the
Estate of Inza Weedman v. Mark WEEDMAN, Jr.,
Individually and as Administrator of the
Estate of Mark Weedman, Sr., Deceased

98-380                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 14, 1998


Appeal & error -- statements alleged must appear in record to be
     considered well grounded in fact -- appellant's petition for
     review not well grounded in fact -- appellee's request for
     attorney's fees granted.-- Pursuant to Ark. R. App.--Civ. 11,
     statements alleged must appear in the record for the supreme
     court to consider them to be well grounded in fact; where
     appellants' legal argument and request for the supreme court
     to depart from present case law were dependent upon statements
     of facts that could not be found in the record, the court was
     unable to say that appellants' petition for review was well
     grounded in fact as required by Rule 11; in accordance with
     Rule 11(c), the supreme court granted appellee's request for
     reasonable attorney's fees related to his work in responding
     to appellants' petition. 


     Motion for Rule 11 sanctions; granted.
     Timothy O. Dudley, for appellants.
     Robinson, Staley & Marshall, by:  Robert Robinson and
Eichenbaum, Lisles & Heister, P.A., by:  James H. Penick, for
appellee.

     Per Curiam.
     Appellants petitioned for review of the court of appeals'
unpublished decision rendered in this case on March 11, 1998.  The
decision was based in part on this court's recognition of the rule
that an objection to an irregularity or inconsistency in a verdict
must be made prior to the discharge of the jury.  In affirming the
verdict in this case, the court of appeals determined that the time
for correcting a verdict had passed because an objection to the
verdict was not raised by the appellants until the jury had already
been discharged and left the courtroom.  See P.A.M. Trans., Inc. v.
Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33
(1993).
     In appellants' petition, they cite Traylor v. Huntsman, 253
Ark. 704, 488 S.W.2d 30 (1972), in support of their argument that
the answers to the interrogatories submitted to the jury were
irreconcilable and should have been corrected by the trial court as
a matter of law.  Appellants cite no case law wherein this court
has ever held that a trial court's failure to correct a verdict
after the jury has been discharged constitutes reversible error.
     Alternatively, appellants contend in their petition that, even
if the correction is considered factual rather than an issue of
law, the jury here had not lost its "separate identity" and should
have been reconvened.  In support of their argument, they assert in
their petition for review that "the jurors had not left the
courthouse when their objection was made, and were in fact still
standing in the hall outside the courtroom."  (Appellants'
emphasis.)  Appellants' petition further alleged that appellee's
counsel indicated "it could be worked out the next day," when
explaining why their conduct was reasonable at the trial's end and
was "well within the principles and exceptions concerning waivers." 
Appellee counters, stating the record reflects nothing about jurors
standing outside the courtroom after their discharge, nor does it
show the appellants interposed a specific objection on the basis
that inconsistent verdicts were rendered, or that appellee's
counsel ever made the remarks attributed to him.
     Appellee further responded to appellants' petition, stating
the petition should be denied as merely reargument of the appellate
court's decision, which contained no mistake of fact or law.  We
denied appellants' petition on April 30, 1998, but took under
submission appellee's motion for Rule 11 sanctions, wherein he
alleges the appellants' foregoing factual statements are
unsupported by the record, and are grounds for the imposition of
attorney's fees against appellants' counsel.  We are compelled to
agree.
     In reviewing the record, we agree with appellee that the
record in no way supports the appellants' assertions that the
jurors were still standing in the hall outside the courtroom after
they had been discharged.  Nor can we find in the record that
appellee's counsel said or indicated "it could be worked out the
next day."  The significance or relevance of these erroneous
references become self evident when you consider that part of the
relief sought by appellants is for our court to adopt a rule they
argue is recognized in other jurisdictions, namely, that when the
jury has not been subjected to outside influences, or has not lost
its "separate identity," there is no waiver.  Appellants cite this
principle as being the majority rule, and if applied here would
allow them to raise an argument that otherwise would have been
waived because they failed to object and argue the issue before the
trial court had discharged the jury.  To support their argument,
they cite 75B AM. JUR. 2d, Trial  1896; Sierra Foods v. Williams,
816 P.2d 466 (1991); Benton v. Wesley Machinery Inc., 191 Ga. App.
334, 381 S.E.2d 577 (1989).  
     Rule 11(a) of the Arkansas Rules of Appellate Procedure --
Civil provides as follows:
          The filing of a brief, motion or other paper in the
     Supreme Court or the Court of Appeals constitutes a
     certification of the party or attorney that, to the best
     of his knowledge, information and belief formed after
     reasonable inquiry, the document is well grounded in
     fact; is warranted by existing law or a good faith
     argument for the extension, modification, or reversal of
     existing law; and is not filed for an improper purpose
     such as to harass or to cause unnecessary delay or
     needless increase in the cost of litigation.  A party or
     an attorney who files a paper in violation of this rule,
     or party on whose behalf the paper is filed, is subject
     to a sanction in accordance with this rule.
     Here, appellants' legal argument and request for us to depart
from present case law are dependent upon statements of facts that
cannot be found in the record.  The statements alleged must appear
in the record for us to consider them to be well grounded in fact. 
Consequently, we are unable to say appellants' petition for review
is well grounded in fact as is required by Rule 11.  In accordance
with Rule 11(c), we grant appellee's request for reasonable
attorney's fees related to his work in responding to appellants'
petition.  We award attorney's fees in the amount of $375.00.