concurring in part and dissenting in part.
I.
I would deny Fullerton and Bradley Motor’s motion to dismiss appeal. Wilson’s attempt to execute on the reduced judgment while Fullerton and Bradley Motor had failed to obtain a supersedeas bond is consistent with the relief he seeks on appeal. Wilson’s sole argument on appeal is that the trial court erred in reducing the verdicts that the jury originally awarded. The only remedy that he requests from this court is that we reinstate the amount of the original verdicts. Thus, there is no risk that Wilson will receive a smaller recovery should we affirm or reverse on direct appeal.
Of course, the majority is absolutely correct in stating that if we accept the arguments put forth by Fullerton and Bradley Motor on cross-appeal, one possible outcome is the grant of a new trial, which obviously carries with it the chance that Wilson will receive nothing once the case is retried. However, I am not persuaded that we should delve into Fullerton’s and Bradley Motor’s cross-appeal to hold that Wilson has somehow run the risk of recovering less on appeal, or that he has accepted the benefits of a judgment inconsistent with the relief he seeks on appeal. In none of the cases relied on by the majority was a possible outcome on cross-appeal dispositive in dismissing a direct appellant’s appeal. See Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954) (affirming dismissal of petition to set aside divorce decree following petitioner’s acceptance of $60,000 under decree); Jones v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953) (dismissing appeal challenging trial court’s refusal to confirm commissioner’s sale after appellants “enjoyed the possession and use of the $5,000.00” that came to them by virtue of the order denying confirmation); Gate City Bldg. & Loan Assn. v. Frisby, 177 Ark. 252, 6 S.W.2d 537 (1928) (“overruling” motion to dismiss appeal where appellant claimed a right to contract rate of interest rather than statutory rate following foreclosure sale — “appellant incurred no hazard whatever of recovering a less amount on appeal.”); Jones v. Hall, 136 Ark. 348, 206 S.W. 671 (1918) (dismissing appeal that involved a review of the entire record to determine amount appellant was entitled to); Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S.W. 857 (1913) (same). To the extent that there is language in our cases suggesting otherwise, see Delaughter v. Britt, 243 Ark. 40, 418 S.W.2d 638 (1967) (“There was no cross-appeal as to the amount of these damages.”) (Fogleman, J., dissenting) and McIlroy v. McIlroy, 191 Ark. 45, 83 S.W.2d 550 (1935) (“In the case at bar there is no cross-appeal challenging the amount of alimony to be paid each month.”), it is merely dictum. I think that the better course of action would be to look solely to the relief sought on direct appeal to determine whether an appellant has accepted the benefit of a judgment inconsistent with his appeal.
In Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993), the appellants argued, among other things, that the trial court erred in allowing an underinsurance carrier to offset from its policy-limits liability proceeds already paid by the tortfeasor’s carrier. The underinsurance carrier, which had voluntarily paid the judgment prior to the appeal, moved to dismiss the appellants’ appeal on the theory that the appellants had accepted the benefits of the judgment that they appealed from, rendering their appeal inconsistent with acceptance of the judgment. Relying on the governing law set down in Bolen v. Cumby, 53 Ark. 514 (1890) (“[H]e waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.”), this court denied the motion to dismiss because the judgment that the appellants accepted belonged to them “in any event,” and “their claims on appeal expressly [went] to additional awards.” Shepherd, supra (emphasis in original). This was true despite the fact that the carrier had filed a cross-appeal, ultimately dismissed as moot, in which it argued that it was entided to the offset and that the trial court erred in not offsetting the judgment further with workers’ compensation benefits paid.
The Shepherd case is in line with cases from other jurisdictions which hold that an appellant, who has already accepted some benefit from a judgment, and who requests only a larger amount on appeal, has not sought relief inconsistent with the judgment appealed from, and that such an “inconsistency” cannot be garnered from a possible result on cross-appeal. Heacock v. IvoretteTexas, Inc., 26 Cal. Rptr.2d 257 (Cal. Ct. App. 1993) (“In deciding whether the plaintiffs appeal is inconsistent with having accepted the benefits of the judgment, we focus solely on the relief sought by the plaintiff, not on arguments made by a cross-appealing defendant.”); Stevens Const. Corp. v. Draper Hall, Inc., 242 N.W.2d 893 (Wis. 1976) (“As long as the party accepting the money has not put his right to that money in jeopardy in his own appeal, there is no waiver, even though his right to the money may be endangered by his opponent’s cross-appeal or notice of review.”); Schleicht v. Bliss, 532 P.2d 1 (Or. 1975), disavowed on other grounds, 688 P.2d 379 (Or. 1984) (“If a cross-appeal could prevent the original appellant from pursuing a valid appeal on the grounds the cross-appeal allows the appellate court to possibly reduce the award given the original appellant, the cross-appeal could be used as a vehicle to dismiss the original appeal.”); see also 1st Nat’l Bank v. Energy Equities Inc., 569 P.2d 421 (N.M. Ct. App. 1977) (reaching merits of cross-appeal that went only to additional awards despite direct appeal challenging the cross-appellant’s right to amounts already collected under the judgment). Because Wilson’s claim on appeal goes only to additional awards, I would reach the merits.
II.
I concur in the result reached by the majority on Fullerton’s and Bradley Motor’s cross-appeal. As to their argument that the relationship between the compensatory and punitive award is so disparate as to require a new trial, this argument was made below in their “Motion for Reconsideration” filed before the entry of judgment. In cross-appellants’ brief, and during oral argument, counsel for cross-appellants maintained that this “Motion for Reconsideration” was in fact a Rule 59 motion for new trial. Accepting the cross-appellants’ characterization of their own motion, I would hold that we are precluded from reaching the merits because their argument was raised in an ineffective Rule 59 motion for new trial. In cases discussing the timeliness of notices of appeal this court has routinely stated that under Ark. R. Civ. P. 59(b), which provides “[a] motion for new trial shall be filed not later than 10 days after the entry of judgment,” a motion for new trial must be filed after entry of judgment in order to be effective. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997) (“[Appellant] failed to file her motion within the ten-day period provided in ARCP Rule 59(b), so it was ineffective.”); Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996) (“Because [the motion for new trial] was filed before the decree was entered, we are convinced that it was not timely.”). The Reporter’s Note to Rule 59 explains that “Section (b) marks-a significant departure from prior Arkansas practice. Under this section, a motion for new trial must be filed within ten days after entry or filing of the judgment.”
III.
Finally, I agree with the majority that we are precluded from reaching the merits of the cross-appellants’ election-of-remedies argument relating to the allegedly inconsistent jury verdicts because they failed to make such an objection below. However, I deem it unnecessary to reduce the compensatory award against Fullerton and Bradley Motor to reflect the payment by FSB, considering that the trial court specifically found that Wilson was entitled to “only recover the sum of $4,710.00 on one of the judgments, not against all of the party defendants.” This would appear to eliminate any double-recovery problem.
Newbern and Brown, JJ., join as to Part I.