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SUPREME COURT OF ARKANSAS
No. CV-14-488
MICHELLE M. SMITH Opinion Delivered May 14, 2015
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT
[NO. CV-12-1079]
KARTIKA HOPPER
APPELLEE HONORABLE J. MICHAEL
FITZHUGH, JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
This is an appeal from the grant of a new trial.1 Appellant, plaintiff below, sued for
negligence; after a trial, the jury awarded damages. Appellee, defendant below, filed a
motion for a new trial, complaining that plaintiff’s counsel had misrepresented certain facts
to the jury during closing argument. We hold that the circuit court acted within its
discretion when it granted appellee a new trial; accordingly, we affirm.
This case arose from a pedestrian collision. Kartika Hopper was driving her car,
turned at an intersection, and suddenly collided with Michelle Smith in a crosswalk. Smith
sued Hopper for negligence. The central factual dispute at the jury trial was whether the
traffic signal read “Walk” or “Don’t Walk” when Smith entered the crosswalk. A police
officer testified that Smith had told him, right after the accident, that the traffic signal read
“Don’t Walk.” On the other hand, a paramedic testified that she could not recall police
1
This court accepted certification from the court of appeals pursuant to Rule 1-
2(b) of the Rules of the Supreme Court and Court of Appeals.
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officers speaking with Smith at the accident scene, and Smith herself testified that the sign
read “Walk.”
Because the police officer’s testimony was the crux of Hopper’s case, Smith’s
counsel tried to call his credibility into question. Specifically, during rebuttal closing
arguments, Smith’s counsel made the following statements about the police officer’s
written accident report:
And [the police officer], in my humble opinion, was written up for this.
....
The report was just a disaster. We feel like that [the police officer] got reprimanded
for that and that’s why he said what he said.
Once Smith’s counsel ended his rebuttal closing argument, the circuit court asked the
attorneys to approach the bench, and the following colloquy took place:
COURT: Was there ever any testimony or any evidence at all in
this trial about this officer being written up and
reprimanded?
SMITH’S COUNSEL: No, that is my subjective belief.
HOPPER’S COUNSEL: We would request a limiting instruction.
COURT: Yes, I am going to tell them to disregard that
argument.
....
I am going to tell them that there has been no evidence
....
—that this officer was ever reprimanded in anyway [sic]
for what he did.
The court went on to tell the jury to disregard any argument that the police officer was
punished for his accident report. The case was then submitted to the jury, which returned
a verdict in Smith’s favor and awarded $42,605 in damages.
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A few days later, Hopper filed a motion for a new trial. The motion argued that a
new trial was warranted under Ark. R. Civ. P. 59(a)(2) because of misconduct of the
prevailing party. 2 Namely, Hopper argued that Smith’s counsel had improperly stated that
the police officer was punished for his accident report. The circuit court agreed and
granted a new trial. Smith has appealed from that order.
The first issue is whether Hopper waived her right to a new trial. Smith argues that
the circuit court should not have granted a new trial because Hopper’s attorney never
objected during closing argument. For support, Smith cites Jones Rigging & Heavy Hauling,
Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002). There, a party asked for a new trial
based on Ark. R. Civ. P. 59(a)(3), which permits the court to grant a new trial for
“accident or surprise which ordinary prudence could not have prevented.” We held that a
party asking for a new trial based on surprise must object and ask for a continuance in
order to preserve the issue. Because no such objection was made, we reasoned that the
circuit court’s decision to grant a new trial rested on an erroneous interpretation of Rule
59(a)(3).
In this case, Hopper’s counsel never objected during closing arguments to Smith’s
counsel’s comments and asked for a limiting instruction only after the court had raised the
issue sua sponte. This failure to object, however, did not prevent the circuit court from
granting a new trial. The reason we require an objection is to apprise the circuit court of
an error. We have stated before that any error argued on appeal must have first been
2
A motion for a new trial based on misconduct of the prevailing party includes
misconduct by the prevailing party’s attorney. See Suen v. Greene, 329 Ark. 455, 947
S.W.2d 791 (1997).
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directed to the trial court’s attention in some appropriate manner, so that the court has an
opportunity to address the issue. Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208
S.W.3d 792 (2005). A party cannot wait until the outcome of a case to bring an error to
the trial court’s attention. Id. Here, the circuit court became aware of the error on its
own. So to require an objection to apprise the circuit court of an error it noticed itself
would be unnecessary.3
While Smith points us to Jones Rigging for support that an objection is required, the
present case is different. Here, the grounds for the new trial were not surprise under Rule
59(a)(3) but attorney misconduct under Rule 59(a)(2). In addition, in Jones Rigging, there
was neither an objection nor any request to cure the error. Jones Rigging, 347 Ark. at 634,
66 S.W.3d at 603. In this case, the court was aware of the error and Hopper asked for
curative relief in the form of a limiting instruction, which the court granted. Thus,
Hopper’s actions were consistent with our Jones Rigging opinion: the court must be
apprised of the error and have an opportunity to cure it during the trial itself.
The second issue is whether the circuit court abused its discretion in granting a
new trial. We hold that there is no basis to reverse the circuit court’s decision. We will
3
Smith points us to two cases in support of her proposition that a
contemporaneous objection is required. See Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729
S.W.2d 142 (1987); John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d
278 (1993). In both of these cases, we affirmed the circuit court’s denial of a motion for a
mistrial because the party waited until after the case was submitted to the jury to raise the
issue. Butler Mfg., 292 Ark. at 202, 729 S.W.2d at 144; John Cheeseman, 313 Ark. at 237,
853 S.W.2d at 283. But these cases are off point. Here, we are reviewing a circuit court’s
decision to grant a new trial, not a decision to deny a belated motion for a mistrial. Moreover,
there is no concern regarding the court being unaware of the error: as we have pointed
out, the circuit court in this case became aware of the error on its own.
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reverse a circuit court’s order granting a motion for a new trial only if there is a manifest
abuse of discretion. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566. Manifest abuse of
discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and
without due consideration. Id. “[A] showing of abuse of discretion is even more difficult
when a new trial has been granted because the beneficiary of the verdict which was set
aside has less basis for a claim of prejudice than does one who unsuccessfully moved for a
new trial.” Roberts v. Simpson, 275 Ark. 181, 182, 628 S.W.2d 308, 309 (1982).
The circuit court issued an extensive order listing its reasons for granting a new
trial. The order noted that the police officer was one of three essential witnesses. The
court further found that Smith’s counsel’s statements that the police officer had been
reprimanded for the accident report were intended by counsel to be “asserted as facts and
were totally unsupported by any evidence.” The statements were “improper, prejudicial,
misleading and resulted in [Hopper] not receiving a fair trial.” Thus, the court granted a
new trial.
This decision was not a manifest abuse of discretion. The court’s order took great
care in outlining just how harmful counsel’s statements were. It is clear that the circuit
court thoughtfully decided the issue. The court sat through the entire trial and was in a
much better position than we are to observe the effect counsel’s statements had on the
jury. See, e.g., Moody Equip. & Supply Co. v. Union Nat’l Bank, 273 Ark. 319, 322, 619
S.W.2d 637, 639 (1984) (noting that the “trial judge had heard all the testimony and was
in a position far superior to ours to know whether . . . the misconduct . . . might have
tipped the scales”). Moreover, Smith has less basis for a claim of prejudice because she still
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has another chance to prevail. See English, 2014 Ark. 511, at 5, 452 S.W.3d at 570. For
these reasons, we affirm the circuit court’s order granting a new trial.
Affirmed.
DANIELSON, BAKER, and HART, JJ., dissent.
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KAREN R. BAKER, Justice, dissenting. I dissent from the majority opinion because
the circuit court committed a manifest abuse of discretion in granting Hopper’s motion for
a new trial.
In Jones Rigging & Heavy Hauling, Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002),
this court explained that a contemporaneous-objection is required when a new trial is sought
on the basis of accident or surprise under Rule 59(a)(3) of the Arkansas Rules of Civil
Procedure. The same contemporaneous objection requirement should equally apply here
where a motion for new trial is based upon Rule 59(a)(2). Based on our reasoning in Jones,
Hopper failed to contemporaneously object to the improper statements during closing
argument; thus, she was prohibited from seeking a new trial based on the improper
statements.
In Jones v. Double “D” Properties, Inc., we explained the contemporaneous objection
rule:
This court has repeatedly held that an objection first made in a motion for new trial
is not timely. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Stated another way,
an issue must be presented to the trial court at the earliest opportunity in order to
preserve it for appeal, and even a constitutional issue must be raised at trial in order to
preserve it for appeal. Foundation Telecom., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16
S.W.3d 531 (2000). A party may not wait until the outcome of a case to bring an error
to the trial court’s attention. Id. The court in Lee, supra, stated further on this issue as
follows:
In Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), this court noted that
the reason for requiring an objection before the trial court is to discourage
“sandbagging” on the part of lawyers who might otherwise take a chance on
a favorable result, and subsequently raise a constitutional claim if the gamble did
not pay off. Selph, 264 Ark. at 204, 570 S.W.2d 256. See also Wilson v. Wilson,
270 Ark. 485, 606 S.W.2d 56 (1980); Hodges v. State, 27 Ark. App. 154, 767
S.W.2d 541 (1989) (allowing a party to raise an objection for the first time in
a motion for new trial would give them “license to lie behind the log,” waiting
to see if they obtain an adverse verdict before complaining about any alleged
irregularities).
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Lee, 350 Ark. at 476–77, 91 S.W.3d 464.
352 Ark. 39, 48–49, 98 S.W.3d 405, 410–11 (2003).
Here, in affirming the award of the new trial, the majority has provided Hopper “a
license to lie behind the log.” Hopper was required to follow the contemporaneous-
objection rule, which she did not, but is now being afforded a new trial. The majority
justifies its decision by stating,
We have stated before that any error argued on appeal must have first been directed
to the trial court’s attention in some appropriate manner, so that the court has an
opportunity to address the issue. Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208
S.W.3d 792 (2005). A party cannot wait until the outcome of a case to bring an error
to the trial court’s attention. Id. Here, the circuit court became aware of the error on
its own. So to require an objection to apprise the circuit court of an error it noticed
itself would be unnecessary.
The fatal flaw with the majority’s reasoning is that it is counsel’s duty to object. Yet,
the majority allows counsel to wait until after the outcome of a case to allege an error. The
majority excuses counsel’s failure to object by stating that the circuit court noticed the error
itself. However, this holding allows Hopper to see if she obtains a favorable verdict before
complaining about any alleged irregularities. This is inapposite with our case law. See Double
“D” Properties, 352 at 48–49, 98 S.W.3d at 410–11.
Further, the majority errs in its holding because Hopper received the requested relief
to cure the alleged error. The record demonstrates that, at the end of Smith’s closing
argument, the circuit court called counsel for both sides to the bench, and the following
colloquy occurred:
THE COURT: Was there ever any testimony or any evidence at all in
this trial about this officer being written up or
reprimanded[?]
SMITH’S COUNSEL: No, that is my subjective belief.
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HOPPER’S COUNSEL: We would request a limiting instruction.
THE COURT: Yes, I am going to tell them to disregard that argument.
....
THE COURT: I am going to tell them there has been no evidence - -
SMITH’S COUNSEL: Okay, that’s fine.
The circuit court admonished the jury with the following:
Ladies and gentleman, the Court is going to direct you to disregard any argument that
was made by [Smith’s attorney] regarding this officer being written up or reprimanded,
totally disregard that.
Here, Hopper “request[ed] a limiting instruction[,]” and received the limiting
instruction—the relief she requested; and therefore, she should not be afforded a new trial.
A party cannot complain when he or she has received all the relief requested. Mikel v.
Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994) (holding “[A]n admonition was given as . .
. requested. A party cannot complain when he or she has received all the relief requested.
Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993)”). The record demonstrates that
Hopper requested a limiting instruction and also accepted the circuit court’s offer to admonish
the jury to disregard Smith’s statement. Because Hopper requested that an admonition be
given to the jury, and one was given, she may not claim that additional relief was appropriate.
See Mikel supra; see also Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003). In Robinson v.
State, 363 Ark. 432, 214 S.W.3d 840 (2005), we explained that a party may not accept an
admonishment and then complain that the admonishment did not cure the error:
An admonishment is an acknowledged means of curing error. [Sullinger v. State, 310
Ark. 690, 840 S.W.2d 797 (1992).] In Sullinger defense counsel moved for a mistrial
when objectionable questions were asked of a witness. After completion of the
testimony, the judge asked the defense attorney if he wanted the jury admonished. He
answered yes, and again moved for a mistrial. The judge first admonished the jury and
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denied the motion. On appeal the court said . . . that even though defense counsel
renewed his motion for a mistrial after accepting the admonishment, “he could not
have it both ways.” Id.
Robinson, 363 Ark. at 436, 214 S.W.3d at 843.
As in Robinson, in accepting the admonishment, Hopper cannot then complain that the
admonishment was not satisfactory. See Mikel, supra; see also Rees v. Smith, 2009 Ark. 169, 301
S.W.3d 467(holding that appellants received the relief that was requested, which was an
admonishment to the jury, and appellants are therefore not entitled to any further relief on
appeal. See Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997)).
Additionally, here, the jury was instructed that arguments of counsel are not to be
considered evidence. LaFont v. Mooney Mixon, 2010 Ark. 450, 374 S.W.3d 668. Jurors are
presumed to follow the instructions they are given. Nw. Nat’l v. Mays, 273 Ark. 16, 616
S.W.2d 734 (1981); Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999).
Because Hopper never objected, moved for a mistrial, or asserted that the circuit
court’s admonition and instructions were insufficient, she cannot now complain after the jury
returned an unfavorable verdict that she should be afforded a new trial.
Therefore, there was no reason to grant Hopper’s motion for new trial, and the circuit
court erred. Accordingly, I dissent.
DANIELSON and HART, JJ., join.
Stephen M. Sharum; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks,
for appellant.
Robertson, Beasley & Ford, PLLC, by: John R. Beasley, for appellee.
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