Wal-Mart Stores, Inc. v. Tucker

Jim Hannah, Justice, concurring. I concur in the outcome in this case; however, I believe this court is in error in failing to reach the issues in the new trial motion, including whether there was substantial evidence to support the jury’s verdict, and more particularly whether the jury’s decision that Wal-Mart’s conduct proximately caused the deceased’s damages is contrary to the preponderance of the evidence. Additionally, I disagree that the issue of whether there is substantial evidence in support of the jury’s verdict awarding damages to Tucker’s daughter Johnny Faye Hoffman for mental anguish is procedurally barred. I would hold that the new trial motion was properly denied because the jury’s verdict is not clearly contrary to the preponderance of the evidence. I write further to clarify the distinctions between a motion for a directed verdict and a motion for a new trial. The majority states that “[t]he distinction between a motion for a new trial and a directed verdict is a fine one.” I believe that to the contrary, the distinction between the two motions is significant. The difficulty in making a distinction between the two motions arises primarily from terminology used by this court in the past in discussing the motions.

Whether There Was a Motion for a New Trial

The majority concludes that while the motion may be captioned a motion for new trial, it is actually a motion for a directed verdict challenging the sufficiency of the evidence that was submitted to the jury. I agree that the discussion in the brief includes argument that is couched in terms of a challenge to the sufficiency of the evidence submitted to the jury. There is no doubt that Wal-Mart’s brief mixes arguments, as the majority shows by quoting portions of the brief. However, even if some portions of WalMart’s brief may be interpreted to impermissibly challenge the sufficiency of the evidence submitted to the jury, that does not mean that the court may simply dismiss other portions of the brief that argue the trial court erred in denying the new-trial motion.

I first note that Wal-Mart cites Gibson Appliance Co. v. Nationwide Insurance Co., 341 Ark. 536 , 20 S.W.3d 285 (2000), for the proposition that this court reviews the denial of a motion for new trial by determining whether the jury verdict is supported by substantial evidence. In Gibson, this court stated:

The standard of review for a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict, is the same for each, i.e., whether there is substantial evidence to support the jury verdict.

Gibson, 341 Ark. at 544-45 . The majority agrees that this is the correct standard of review. Wal-Mart notes evidence submitted in the case and then argues that “the jury’s verdict is not supported by substantial evidence, and the trial court’s denial of Wal-Mart’s motion for new trial must be reversed.” Wal-Mart also argues that, “[n]ot only does the testimony of every expert fail to eliminate other potential causes of death, but all the experts agree that there were other factors that contributed to or caused Mr. Tucker’s death.” While Wal-Mart goes on to argue about proximate cause at this point, Wal-Mart is also arguing that the jury decided the case incorrectly in contradiction to the expert testimony that was submitted, or in other words, the decision of the jury was contrary to the preponderance of the evidence. Ark. R. Civ. P. 59. Wal-Mart further argues that the jury ignored other contributing factors causing Mr. Tucker’s death. This again is a challenge to the decision made by the jury, not a challenge to the nature of the evidence submitted to the jury. Wal-Mart argued that based upon the evidence submitted to the jury, the jury made the wrong decision. The majority focuses on Wal-Mart’s arguments on proximate cause and discusses a prima facie case in light of a motion for a directed verdict. I do not disagree that Wal-Mart couched its argument in large part in terms of the nature of the evidence that was submitted to the jury, however, the simple facts are, Wal-Mart moved for a new trial and now seeks review of that denial arguing that the jury’s verdict was contrary to the preponderance of the evidence. There is argument to support that assertion. The argument that is irrelevant may simply be ignored. This court should address the issues that are presented.

The majority is correct in stating that a failure to make a motion for a directed verdict precludes this court from reviewing whether the evidence was sufficient to submit the issue to the jury. A challenge to the sufficiency of the evidence submitted to the jury is made by a motion for a directed verdict. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94 , 76 S.W.3d 254 (2002). For example, the brief includes language such as:

“[t]he experts’ testimony is not of sufficient force to compel a conclusion that Mr. Tucker’s death was a proximate cause of the mis-fill. As a result, the jury’s verdict is not supported by substantial evidence and the trial court’s denial of the Wal-Mart’s motion for new trial must be reversed.”

The standard of review on a directed verdict motion is whether the jury’s verdict is supported by substantial evidence.

A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence.

D.B. Griffin, 349 Ark. at 104 (emphasis added); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707 , 74 S.W.3d 634 (2002); Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023 , 934 S.W.2d 527 (1996). However, on appeal from the denial of a motion for a new trial, this court also determines whether the jury’s verdict is supported by substantial evidence. Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536 , 20 S.W.3d 285 (2000); Pearson v. Henrickson, 336 Ark. 12 , 983 S.W.2d 419 (1999); Esry v. Carden, 328 Ark. 153 , 942 S.W.2d 846 (1997); see also Bearden v. J.R. Grobmyer Lumber Co., 331 Ark. 378 , 961 S.W.2d 760 (1998); Wilson v. Kobera, 295 Ark. 201 , 748 S.W.2d 30 (1988).

Substantial evidence in the case of a directed verdict motion is “evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other.” Southern Farm Bureau, 326 Ark. at 1027 . With respect to reviewing the denial of a motion for a new trial, this court stated in Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78 , 765 S.W.2d 924 (1989):

When acting upon a motion for new trial challenging a jury’s verdict, the trial court is required by Ark. R. Civ. P. 59(a)(6) to set aside the verdict if it is clearly against the preponderance of the evidence or contrary to law. Dedman v. Porch, 293 Ark. 571 , 739 S.W.2d 685 (1987). The test on review, where the motion is denied, is whether the verdict is supported by substantial evidence. Schaeffer v. McGhee, 286 Ark. 113 , 689 S.W.2d 537 (1985). It is only where there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded men can only draw a contrary conclusion that a jury verdict should be disturbed. Blissett v. Frisby, 249 Ark. 235 , 458 S.W.2d 735 (1970).

Pineview, 298 Ark. at 89 . The motion for new trial asks the trial court to determine whether the jury’s award “was contrary to the preponderance of the evidence.” Ark. R. Civ. P. 59(a)(6) (2003).

The phrase “was contrary to the preponderance of the evidence” was quoted verbatim in Wal-Mart’s motion for a new trial. The motion for new trial was presented and denied by the trial court. The issue is presented and laid out sufficiently that this court should hear the denial of the motion for a new trial.

Motion for New Trial

The new-trial motion tests the jury verdict after it is rendered. The directed-verdict motion tests the evidence before it is submitted to the jury.

A motion for a new trial asks the trial court to rule on whether the jury returned a verdict clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). On appellate review of the denial of a motion for a new trial, this court determines whether the verdict reached by the jury was supported by substantial evidence. Pearson, supra. A motion for a new trial is brought after the jury has returned a verdict. Ark. R. Civ. P. 59(b).

A motion for a directed verdict is brought before the jury is charged and retires to render a decision. Willson Safety Prods. v. Eschenbrenner, 302 Ark. 228 , 788 S.W.2d 729 (1990); see also Cathey v. State, 351 Ark. 464 , 95 S.W.3d 753 (2003). A motion for a directed verdict asks not whether the verdict reached by the jury is clearly contrary to the preponderance of the evidence, but rather asks whether there is sufficient evidence to submit an issue to the jury. A motion for a directed verdict is granted where the evidence is so insubstantial that a jury verdict on that evidence would have to be set aside. Dorton v. Francisco, 309 Ark. 472 , 833 S.W.2d 362 (1992). A motion for a new trial is granted where the jury received sufficient evidence upon which to render a verdict, but rendered a verdict that was clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). In Yeager v. Roberts, 288 Ark. 156 , 702 S.W.2d 793 (1986), this court clarified the use of the two motions:

A party does not have to make a motion testing the sufficiency of the evidence to go to the jury as a prerequisite to making a motion for a new trial. Motions for directed verdict and judgment notwithstanding the verdict are made to preserve a later argument on the sufficiency of the evidence to go to the jury. ARCP 59 specifically states a motion for a new trial may be granted for eight reasons, one of which is where the verdict is clearly contrary to the preponderance of the evidence. Such a motion does not test the sufficiency of the evidence and is not precluded by Rule 50(e).

Yeager, 288 Ark. at 157 .

Still, some confusion has arisen in the law by the use of the term “sufficiency of the evidence,” with respect to both a motion for a directed verdict and a motion for a new trial. As the majority notes, Ark. R. Civ. P. 50(e) was amended in 1983 to remove any implication that a motion for a new trial could be used after a jury returned its verdict to test whether the evidence was sufficient to submit the issue to the jury. There has been confusion in the past about just what is challenged by a motion for new trial. In McFall Chevrolet Co. v. Collins, 271 Ark. 469 , 609 S.W.2d 118 (Ark. App. 1980), the court of appeals stated that:

in order for an appellant to challenge the sufficiency of the evidence in a jury trial, he must either move for a directed verdict at the conclusion of all the evidence, move for a judgment notwithstanding the verdict, or move for a new trial because of insufficiency of the evidence. The failure to do one of these three requirements precludes raising the issue on appeal. Rule 50(e) (ARCP).

McFall, 271 Ark. at 470-471 . 1 While the language of the court of appeals is not clear, it appears the court of appeals was indicating that a motion for new trial may be used to attack the sufficiency of the evidence submitted to the jury. Clearly, this is not so because a motion for new trial does not test the sufficiency of the evidence submitted to the jury. Hall v. Grimmett, 318 Ark. 309 , 885 S.W.2d 297 (1994); see also, Benton v. Barnett, 53 Ark. App. 146 , 920 S.W.2d 30 (1996). In Majewski v. Cantrell, 293 Ark. 360 , 737 S.W.2d 649 (1987), this court noted the amendment to Rule 50 and stated:

We note appellant’s additional reference to a motion for new trial when discussing the sufficiency of evidence, and take this opportunity to mention our amendment of ARCP Rule 50(e) that omitted any reference to the motion for new trial. That amendment makes it clear that a party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for new trial. See In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470 , 651 S.W.2d 63 (1983).

Majewski, 293 Ark. at 363. The sufficiency of the evidence submitted to the jury must be tested by a motion for a directed verdict before the jury is charged. Willson, supra. Nonetheless, this court has continued to use the term “sufficiency of the evidence” in reference to a motion for a new trial. In Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666 , 945 S.W.2d 355 (1997), this court stated:

A motion for new trial based on Rule 59(a)(4) or (a)(5) challenges the sufficiency of the evidence to support a jury’s factual determination of damages. Kempner v. Schulte, 318 Ark. 433 , 885 S.W.2d 892 (1994); National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80 , 828 S.W.2d 584 (1992).

Coca-Cola, 328 Ark. at 669. While continuing to use the term “sufficiency of the evidence” has not resulted in greater clarity in this court’s decisions, the decisions are not in error. As is evident in the above cite to Coca-Cola, in that case this court was examining whether the jury erred in reaching its verdict. This court was determining whether the verdict reached by the jury was supported by substantial evidence. This court was not examining whether there was sufficient evidence to submit the case to the jury. In a given case, there might be sufficient evidence to submit a case to a jury, but the verdict rendered on that evidence could be subject to a motion for a new trial where the jury makes a decision clearly contrary to the preponderance of the evidence. Such a verdict would not be supported by substantial evidence even though sufficient evidence was submitted to the jury.

The standard of review of a motion for a directed verdict and a motion for a new trial is stated in precisely the same words. The standard of review for both the denial of a directed-verdict motion and the denial of a motion for new trial is whether there was substantial evidence to support the jury’s verdict. However, in the case of a directed-verdict motion, this court must determine whether there was substantial evidence to submit to the jury; in the case of a new trial motion, this trial court must determine whether the jury’s verdict is supported by substantial evidence, or in other words, whether the verdict is clearly contrary to the preponderance of the evidence. The cases are not as clear on this point as they might be. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240 , 100 S.W.3d 715 (2003) and Pearson, supra; see also, Dorton, supra. However, one need only look to the nature of the two motions to understand that they test two very different events at trial. The directed-verdict motion tests whether the jury was left to speculation and conjecture and thus had no evidence on which to base a decision. See St. Paul Fire & Marine Co. v. Brady, 319 Ark. 301 , 891 S.W.2d 351 (1995). The motion for a new trial tests whether the jury erred in reaching a decision on the evidence before it. Ark. R. Civ. P. 59(a)(6). I agree with the majority that a failure to move for a directed verdict precludes appellate review of whether there was sufficient evidence to submit the issue to a jury. However, this is an appeal from the denial of a motion for a new trial.

I would decide the issue of whether the jury’s verdict was clearly against the preponderance of the evidence, and I would hold that the jury’s verdict is supported by substantial evidence.

Thornton, J., joins this concurrence. The majority asserts that the cite to McFall Chevrolet Co. v. Collins, 271 Ark. 469 , 609 S.W.2d 118 (Ark. App. 1980) is “inapposite,” because it was decided prior to the 1983 amendment to Rule 50(e). The majority misunderstands the reason the case was cited. The case was cited because it was a pre-amendment case and clearly shows the confusion that has existed regarding the two motions.