The opinion
Josephine Linker Hart, Judge, concurring. I agree that this case must be affirmed, but write separately because I respectfully disagree with the majority’s analysis concerning Neste Polyester’s argument that the trial court erred in admitting evidence concerning Viper’s lost profits theory for recovery of damages because lost profits are “special damages,” and Viper failed to comply with Rule 9(g) of the Arkansas Rules of Civil Procedure that its damage theory be specifically pled. I cannot agree that Viper’s pleadings “substantially complied” with Rule 9(g), or that this point was somehow barred because he failed to object to Viper’s expert testifying about lost profits. Neste’s argument fails simply because it has long been settled law that the purpose of requiring special damages to be pled is to prevent surprise, and where no surprise is pleaded and no time requested to prepare to meet the issue, there is no error. Arkansas Louisiana Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083 , 468 S.W.2d 754 (1971). At oral arguments, Neste stated unequivocally that it was not surprised by Viper’s damage theory; therefore, there is no reversible error.
I concur.