# QHG of Springdale, Inc. v. Archer

> Court of Appeals of Arkansas · October 21, 2009 · 2009 Ark. App. 692

URL: https://www.frixlaw.com/law-library/cases/5110356

## Case

- **Full name:** QHG OF SPRINGDALE, INC. v. Ernest ARCHER, M.D.
- **Court:** Court of Appeals of Arkansas
- **Decided:** October 21, 2009
- **Citations:** 2009 Ark. App. 692; 373 S.W.3d 318; 2009 Ark. App. LEXIS 853
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Agree, Baker, Brown, Gladwin, Gruber, Kinard, Marshall, Pittman, Robbins, Vaught
- **Cited by:** 12 later opinions in the Frix Law Library

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## Opinion text

WAYMOND M. BROWN, Judge, dissenting.
The majority begins its opinion with a proverb about the need for a yoke of oxen to pull a piece of paper out of a court. Yet, the only ones that might use that yoke are the members of the majority. The jury was able to listen to the evidence, deliberate, and reach a verdict. This verdict was supported by the evidence presented, and there is absolutely no reason for this court to remand this case for trial before a second jury. Therefore, I must respectfully dissent.
I begin with what is noticeably absent from the majority’s opinion: a discussion of this court’s standard of review. QHG appeals from the denial of a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial or remittitur. In reviewing the denial of a motion for JNOV, this court views the evidence in the light most favorable to the party on whose behalf judgment was entered and reverses only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter |1sof law. Ethyl Corp. v. Johnson, 345 Ark. 476 , 49 S.W.3d 644 (2001). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. Id.
This court’s review of a motion for new trial depends upon the grounds upon which the moving party requests the new trial as well as whether the motion was granted or denied. In this case, QHG argued that a new trial was in order because the amount of the jury’s verdict was excessive, appeared to have been given under the influence of passion or prejudice, was clearly contrary to the preponderance of the evidence or contrary to the law, or was the result of error in the assessment of the amount of recovery. See Ark. R. Civ. P. 59(a)(4), (5), & (6). When reviewing a motion for new trial based on the ground that the verdict is clearly against the preponderance of the evidence, the circuit court has limited discretion because it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Switzer v. Shelter Mid. Ins. Co., 362 Ark. 419 , 208 S.W.3d 792 (2005). When reviewing the denial of such motion, we must affirm if the verdict is supported by substantial evidence. Id. Where an award of damages is alleged to be excessive, this court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the conscience of the court or demonstrates passion or prejudice on the part of the jury. Vaccaro Lumber v. Fesperman, 100 Ark. App. 267 , 267 S.W.3d 619 (2007). Remitti-tur is appropriate when the compensatory damages awarded are excessive |ir,and cannot be sustained by the evidence. Id. Again, this court reviews the motion under the substantial-evidence standard. See id. Finally, when a party alleges that the jury erred in assessing the amount of the recovery, the denial of the motion for new trial is upheld absent a manifest abuse of discretion. Home Mut. Fire Ins. Co. v. Jones, 63 Ark.App. 221 , 977 S.W.2d 12 (1998). An important issue is whether a fair-minded jury could have fixed the award at the challenged amount. Luedemann v. Wade, 323 Ark. 161 , 913 S.W.2d 773 (1996).
The majority’s opinion is flawed in two major aspects. First, the majority is incorrect in holding that the contract’s salary provisions were unambiguous. When the terms of a contract are ambiguous and capable of having more than one meaning, extrinsic evidence is permitted to establish intent of the parties, and the meaning of the contract then becomes a question of fact. Vogelgesang v. U.S. Bank, N.A., 92 Ark.App. 116 , 211 S.W.3d 575 (2005). An ambiguity may be patent (apparent on its face) or latent (arise due to undisclosed facts or uncertainties in the written instrument). Pittman v. Pittman, 84 Ark.App. 293 , 139 S.W.3d 134 (2003). The initial determination of the existence of an ambiguity rests with the court, and if the contract is found to be unambiguous, its construction and legal effect are questions of law to be determined by the court. Cranfill v. Union Planters Bank, 86 Ark.App. 1 , 158 S.W.3d 703 (2004).
The contract in this case contains two clauses relevant to this appeal. Section 3.2 of the agreement provides, “Either party may terminate Physician’s employment hereunder, without cause, at any time upon one hundred eighty (180) days prior written notice to the other party.” Meanwhile, Addendum # 2 sets forth Dr. Archer’s salary under the agreement: ‘Tears one and|17two: $300,000. The first 18 months of this agreement are guaranteed. Years three through five: $265,000 [plus an incentive bonus].” The parties disputed whether the 180-day period for termination without cause ran consecutive to or concurrent with the eighteen-month salary guarantee. To support his argument, Dr. Archer presented a letter from Donnie Frederic, QHG’s chief operating officer, indicating that the 180-day period for termination without cause would not begin until after the expiration of the eighteen-month guaranteed period.
To use another proverb, the majority puts the cart (the interpretation of the contract) before the horse (the determination of whether the agreement is ambiguous). The only analysis the majority provides for its holding that the agreement was unambiguous is its conclusion that the two clauses are reconcilable. The majority then reconciles the agreement in the light it believes to be correct. But the initial question is whether there is an ambiguity. The majority’s interpretation, while reasonable, is not the only way the two clauses could have been construed. If the majority’s interpretation is accepted as the only reasonable one, then Dr. Archer could have terminated the agreement without cause during the 180-day period, and QHG would have still been responsible for paying his salary. This interpretation is patently absurd, yet it necessarily follows from the majority’s argument. Because the clauses were subject to more than one reasonable interpretation, the determination of the meaning of the contract fell within the province of the jury. I cannot agree with the majority’s conclusion to the contrary.
Second, the majority’s analysis regarding damages is incorrect. A party to a contract who is injured by its breach is entitled to compensation for the injury sustained and is entitled to be |18placed, insofar as this can be done with money, in the same position he would have occupied if the contract had been performed. Moore v. Pulaski County Special Sch. Dist., 73 Ark.App. 366 , 43 S.W.3d 204 (2001).
The majority’s opinion focuses on QHG’s material breach: the failure to provide adequate on-call coverage. But QHG also breached the agreement by denying Dr. Archer leave for vacation and continuing medical education and by failing to provide him adequate support personnel and equipment. The jury had before it testimony from Dr. Archer’s expert witness, Donald Market, who presented a report about the value of the extra services Dr. Archer performed. Market calculated the value of Dr. Archer’s past and future lost earnings ($824,539 as of the date of trial; $1,028,544 over the course of the contract), excess call necessitated by another doctor’s refusal to participate in call ($861,-267), excess performance of baby deliveries ($75,602), excess office calls ($41,625), and Dr. Archer’s worth to QHG when all of the OB/GYN duties were assumed by him ($316,055). In other words, Market believed that Dr. Archer was entitled to in excess of $2 million in damages. The jury awarded $387,500. This award is supported by substantial evidence, and it neither has the appearance of being influenced by passion or prejudice nor is shocking to the conscious of the court. While we can never know how the jury arrived at its figure, we are not required to specifically determine how a jury arrived at its determination of damages to affirm. See Luedemann, supra (affirming a verdict of over $13,000 in damages, despite the plaintiff claiming over $35,000 in damages, in light of the jury finding the plaintiff 20% at fault and concluding that the jury did not have to believe |19her testimony); Bull Motor Co. v. Murphy, 101 Ark.App. 33 , 270 S.W.3d 350 (2007) (affirming a $7000 jury award in a breach-of-contract for the sale of a “new” truck when the owner of the truck opined that the value of a truck he purchased diminished $8000 to $10,000 after being driven by a car thief). The jury has latitude in awarding damages when arriving at a figure. Bank of America, N.A. v. C.D. Smith Motor Co., 353 Ark. 228 , 106 S.W.3d 425 (2003).
The damages are supported by the record and should be affirmed. I would affirm and, per Dr. Archer’s concession at oral argument, hold that the cross-appeal is moot. Because the majority of my colleagues disagree, I must respectfully dissent. I am authorized to state that Chief Judge Vaught and Judges Pittman and Baker join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5110356. Public record. Not legal advice.