# Schmidt v. Pearson, Evans and Chadwick

> Supreme Court of Arkansas · November 4, 1996 · 326 Ark. 499

URL: https://www.frixlaw.com/law-library/cases/9681607

## Case

- **Full name:** Paul A. SCHMIDT, Pauline B. Schmidt, Paul G. Schmidt and Acro Corporation v. PEARSON, EVANS, and CHADWICK, a Partnership; C. Thomas Pearson, Jr.; Marshall Dale Evans; Charles R. Chadwick; Stephen R. Bigger; Steven Tennant, P.A.; And Steven Tennant
- **Court:** Supreme Court of Arkansas
- **Decided:** November 4, 1996
- **Citations:** 326 Ark. 499; 931 S.W.2d 774; 1996 Ark. LEXIS 601
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Glaze, Fiashem, Jesson, Dudley, Newbern, Witherspoon, Hashem, Jones
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JOHN Harris Jones, Special Justice, concurring. Jury verdicts in favor of appellants for approximately $4.86 million were set aside by the trial judge and judgment notwithstanding the verdicts rendered in favor of appellees, dismissing the appellants’ claims for malpractice for lack of substantial evidence.
The claims against appellee attorneys Pearson and Tennant arose out of a lender-liability action on behalf of appellants against Mcllroy Bank & Trust. In February 1986, Mcllroy, under new ownership, terminated its lending relationship with appellants which had extended over the preceding ten years and in March 1986 sued to foreclose on its collateral.
Appellants filed for Chapter 11 bankruptcy and in August 1986 filed a lender-liability suit against Mcllroy in the bankruptcy court. The following month appellants dismissed without prejudice their lender-liability claim. Appellants withdrew from bankruptcy in September 1988.
There must be a rational basis in the evidence to warrant the giving of an instruction. Brown v. State, 325 Ark. 504 , 929 S.W.2d 146 (1996). Here, none of the State’s case-in-chief is summarized in the abstract. The trial court ruled on the proffered instructions after the State rested its case. The discussions and objections concerning instructions are not abstracted. We are informed only that appellant submitted three proposed instructions on lesser-included offenses and that the trial court ruled that it would instruct on burglary, but not any lesser-included offenses. An abstract must include all material “necessary to an understanding of all questions presented to the Court for decision.” Ark. R. Sup. Ct. 4-2 (a) (6). We have said that the argument made to the trial court and the trial court’s ruling are “vital” to a review of the ruling by this court. Watson v. State, 313 Ark. 304 , 854 S.W.2d 332 (1993). Here, the abstract gives us only the three proffered instructions, part of appellant’s testimony, and the result of the instruction conference. We do not have sufficient material to folly understand the issue. Appellant quoted part of his argument to the trial court and the trial court’s comments in the argument section of his brief, but we have stated that scattering transcript references throughout the argument is not a substitute for a proper abstract. Moncrief v. State, 325 Ark. 173 , 925 S.W.2d 776 (1996); Watson v. State, 313 Ark. 304 , 854 S.W.2d 332 (1993).
The court of appeals’ opinions in this case confirm that appellant’s abstract is not sufficient to give an understanding of the trial below and the issues presented on appeal. The majority opinion held that appellant’s abstract was sufficient, but the majority opinion contains five statements of fact that are not found in the abstract. The dissenting opinion quotes directly from the transcript of the instruction conference to show that only the State’s evidence had been introduced when the trial court considered the instructions. The trial judge stated, “I’m just going to instruct at this time on residential burglary.” The abstract did not reflect this and appellant does not discuss it. Yet, one of the primary issues would be whether appellant waived the issue by not renewing it, or whether the court had a duty to change its ruling on its own motion, an issue we cannot reach because none of this is reflected in the abstract.
Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681607. Public record. Not legal advice.