Jarrett v. Brand.dissent

Cite as 2017 Ark. 249

SUPREME COURT OF ARKANSAS
No. CV-17-425

Opinion Delivered: September 14, 2017
NATHAN JARRETT AND KEY
ENERGY SERVICES, LLC APPEAL FROM THE PERRY
APPELLANTS COUNTY CIRCUIT COURT
[NO. CV-2011-52]

V. HONORABLE MACKIE M. PIERCE,
JUDGE

ANDREW J. BRAND DISSENT ON DENIAL OF
APPELLEE PETITION FOR REVIEW.

JOSEPHINE LINKER HART, Associate Justice

I would grant appellants’ petition asking for review of the decision of the Arkansas

Court of Appeals in Jarrett v. Brand, 2017 Ark. App. 276. As the court of appeals

acknowledges, the circuit court considered appellants’ argument and ruled against appellants,

finding that the question whether the bankruptcy filing flowed from the automobile

accident was a question of proximate cause for the jury as triers of fact. In their brief before

the court of appeals, appellants argued that neither Arkansas law nor case law from other

jurisdictions supported the circuit court’s conclusion. Appellants observed that Arkansas’s

jury instructions did not consider bankruptcy losses as an element of damages. Appellants

further noted that there were good public-policy reasons to support their position. And

finally, appellants argued that, in considering the meaning of the phrase, “proximate cause,”

an automobile accident could not be the proximate cause of a bankruptcy. But even though
Cite as 2017 Ark. 249

appellants made the argument at trial, the circuit court ruled on it, and appellants made the

same argument in their brief, the court of appeals concluded that

[appellants’] arguments on appeal were never presented to the trial court. At trial,
[appellants] made a generic motion in limine that bankruptcy losses were not an
element of damages in a personal-injury case. On appeal, however, [appellants]
present[ ] specific challenges to the circuit court’s denial of his motion in limine.
[Appellants] make[ ] sweeping public-policy arguments against the introduction of
evidence of bankruptcy in personal-injury cases. For example, [appellants] contend[ ]
that a selective listing of assets and personal estimates of value do not reflect the
complexity of a bankruptcy case. [Appellants] further argue[ ] that allowing evidence
of bankruptcy damages in a personal-injury case “provides an opportunity for an
unscrupulous plaintiff to tell the bankruptcy court one thing and the circuit court
something else.” [Appellants] also assert[ ] that “the path from a car accident to
bankruptcy is not a ‘natural and continuous sequence of events.’” [Appellants] go[ ]
on to cite other jurisdictions that [appellants] claim support [their] contention that
claims of equity lost in bankruptcy should be precluded as damages in a personal-
injury case. None of these specific arguments were presented to the trial court.

Jarrett, 2017 Ark. App. 276, at 6.

As is obvious even from the court of appeals’ decision, the issue of whether an

automobile accident could proximately cause a bankruptcy was argued by the parties, ruled

on by the circuit court, and argued in the appellate briefs. Thus, I would reverse the court

of appeals’ decision and remand to the court of appeals to consider the merits of the

argument.