The opinion
Robert L. Brown, Justice, concurring. My only disagreement with the majority opinion is its unrealistic assumption that O.U.R. made a motion for summary judgment at the close of the Daniels’s case, and at the close of its own case, and at the close of all of the evidence following rebuttal. It is clear to me and, no doubt, was equally clear to the attorneys at trial and to the trial court that defense counsel was making a motion for directed verdict but was making the same argument he made in his pretrial motion for summary judgment. Indeed, counsel said as much:
The Court will recall that I had a motion for summary judgment pending which the Court denied about a year ago, but I just want at this point to renew for the record that we contend that this lease is unenforceable and illegal under the state law and the Arkansas constitution, and, in fact, make the same motion I did at summary judgment and have the Court note the denial of that for the record.
The trial court overruled defense counsel’s motion three times at trial, which, again, supports the conclusion that the trial court, without question, viewed these motions as motions for a directed verdict.
I would accept the reality of what occurred at trial and recognize that the trial court overruled O.U.R.’s directed-verdict motions. This conclusion would avoid the contorted reasoning of the majority opinion that what transpired at trial fell under the qualified-immunity exception to our general rule regarding denials of summary-judgment motions.
Corbin and Imber, JJ., join.