Long v. Lampton

Tom Glaze, Justice, dissenting. Trial attorneys and members of the bench should take particular note of this decision, because it represents this court’s change in case law involving the giving and prejudicial effect of (1) erroneous conflicting jury instructions and (2) inherently erroneous instructions. As this court ruled in Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576 , 740 S.W.2d 127 (1987), it is settled law that it is prejudicial error for the court to give instructions which are directly conflicting and calculated to mislead the jury. See also Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67 , 147 S.W. 86 (1912); McCurry v. Hawkins, 83 Ark. 102 , 103 S.W. 600 (1907); St. Louis, I.M.& S. R. Co. v. Beecher, 65 Ark. 64 , 44 S.W. 715 (1898). It is also well settled that an inherently erroneous instruction cannot be cured by a correct instruction. MoPac Railroad Co. v. Boley, 251 Ark. 964 , 477 S.W.2d 468 (1972); Clark v. Duncan, 214 Ark. 83 , 214 S.W.2d 493 (1948); Reynolds v. Ashabranner, 212 Ark. 718 , 207 S.W.2d 304 (1948); Mo. Valley Bridge & Iron Co. v. Malone, 153 Ark. 454 , 240 S.W 719 (1922). Believe it or not, the majority court has decided in this case today that inherendy erroneous and directly conflicting instructions are no longer presumed prejudicial error.

This case centers on a dispute between the majority shareholders, Leslie Lampton, Sr., and Ergon, Inc., and the minority shareholders, the Longs, and whether the majority and its management representatives breached their fiduciary duties owed the Longs. While the question as to whether Lampton and the other majority shareholders owed the Longs a duty as a fiduciary is a matter of law, the trial court erroneously submitted this question as a factual issue in instruction no. 9 as follows:

Plaintiffs claim damages from Ergon, Inc. and Leslie B. Lampton, Sr., and have the burden of proving each of four essential propositions:

First: That they have sustained damages.

Second: That Leslie B. Lampton, Sr., owed plaintiffs duties as a fiduciary.

Third: That Leslie B. Lampton, Sr., breached his fiduciary duties to the plaintiffs.

Fourth: That such breach of fiduciary duties was a proximate cause of plaintiffs damages.

If you find from the evidence in this case that each of the propositions has been proved, then your verdict should be for the plaintiffs and against the defendants Leslie B. Lampton, Sr., and Ergon, Inc. But, on the other hand, you find from the evidence that any of these propositions has not been proved then your verdict should be for Ergon, Inc., and Leslie B. Lampton, Sr. (Emphasis added.)

As can be seen by the foregoing language (and as pointed out by the Longs), the jury is told that, if it finds each of the four essential conditions to exist (including Lampton owed the Longs duties as a fiduciary), the jury should return a verdict for the Longs. But if the jury finds that any one of the four propositions has not been proved, the jury’s verdict should be for Lampton and Ergon. In other words, the instruction in effect “binds” the jury to return a verdict based only on such instruction. See Reynolds v. Ashabranner, 212 Ark. 718 , 207 S.W.2d 304 (1948).

Lampton and Ergon concede the second paragraph in instruction no. 9 is incorrect, but contend that mistake was cured in two ways: (1) In their closing argument, they said, “We do not deny that Mr. Lampton had a duty.”, and (2) instruction no. 10 cured any defect in no. 9 by informing the jury, “Directors, officers and shareholders of a corporation owe fiduciary duties of care, good faith and loyalty to each other.”

Lampton’s and Ergon’s two contentions are -without merit for several reasons. One, the jury rendered a general verdict in Lamp-ton’s behalf, and under the erroneous second paragraph and binding effect of instruction no. 9, the jury may well have reached its verdict by finding Lampton, Sr. owed no fiduciary duty to the Longs. Two, while Lampton and Ergon argue instruction no. 10 cured the error in no. 9, I would first point out that no. 10 gave only a general statement of law, and it never stated that, as a matter of law, Lampton and Ergo owed any fiduciary duties to the Longs. Concerning Lampton’s and Ergon’s contention that they cured the erroneous portion of instruction no. 9 by not denying they owed the Longs fiduciary duties, I note that they offer no citation of authority supporting such an argument and I am aware of none. Four, it is also difficult to understand any logic in Lampton’s and Ergon’s (now this court’s) argument that the error in instruction no. 9 was cured by no. 10. Assuming instruction no. 10 was intended to relate to the jury that Lampton owed fiduciary duties to the Longs, it still directly conflicts with the directions given in no. 9.

In sum, instruction no. 9 contained an obvious mistake which is conceded by all parties. Assuming, as we must, the jury followed the direction in that erroneous instruction, the jury could well have decided in Lampton’s favor because it found Lampton and Ergon owed the Longs no fiduciary duties. No other instruction could cure such an error.

Finally, I need to mention the majority opinion’s unfortunate citations to cases such as Bailey v. Rose Care Center, 307 Ark. 14 , 817 S.W.2d 412 (1991); Davis v. Davis, 313 Ark. 549 , 856 S.W.2d 284 (1993); and Skinner v. R.J. Griffin & Co., 313 Ark. 430 , 855 S.W.2d 913 (1993), in support of the court’s assertion that the error committed here could be harmless. Those cases have nothing to do with a binding or an inherendy erroneous instruction as we have before us here. Again, inherently erroneous instructions cannot be cured, and Arkansas law has so held for a century. It is disappointing this court fails to recognize this simple distinction when reviewing civil instructions.

For the above reasons, I would reverse and remand this cause.

JESSON, C.J., joins this dissent.