Gamble v. Wagner

2014 Ark. App. 442, 440 S.W.3d 352, 2014 Ark. App. LEXIS 584
CourtCourt of Appeals of Arkansas
DecidedSeptember 3, 2014
DocketCV-13-1060
StatusPublished
Cited by3 cases

This text of 2014 Ark. App. 442 (Gamble v. Wagner) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gamble v. Wagner, 2014 Ark. App. 442, 440 S.W.3d 352, 2014 Ark. App. LEXIS 584 (Ark. Ct. App. 2014).

Opinion

RITA W. GRUBER, Judge.

| Appellant Chris Gamble loaned his portable, programmable, electronic sign to appellee Wes Wagner for use in appellee’s political campaign. The sign was irreparably damaged, and appellant filed a negligence lawsuit against appellee. At the close of appellant’s case, the circuit court granted appellee’s motion for directed verdict and dismissed the case. Appellant brings this appeal, arguing that we should reverse because the motion was not made at the proper time and because appellant presented sufficient evidence of negligence and damages to present to a jury. We affirm the circuit court’s judgment.

Appellant owns several furniture stores and mini-storage units in Manila and Jonesboro, which he and his brother manage. In December 2009, appellant bought an LED sign mounted on a trailer for $8,120.50 that he used daily to advertise at his various businesses. In April 2010, ap-pellee, a friend who had attended high school with appellant, |2asked to borrow the sign trailer for his state-representative campaign. There was no contract; appellant simply loaned the trailer to appellee as a friend. Testimony differed regarding who retrieved the trailer sign from appellant’s Manila furniture store — appellee insisted that he did not pick up the sign himself, although he did not say who did; appellant’s brother and another employee testified that they saw appellee pick up the sign. In either case, appellee obtained the sign and stored it for several weeks at his father’s house in Manila. Appellant, his brother, and an employee of the Manila store all testified that the sign was in working order when it was picked up.

Several weeks later, appellant called ap-pellee and asked if appellee was going to bring the sign to appellant’s Jonesboro store so appellant could program the sign for him. When appellee brought the sign to the Jonesboro store, appellant was working outside and saw appellee drive into the parking lot. Appellant said that the “guts were hanging out” of the sign and he asked appellee what had happened. The sign was inoperable. According to appellant, appellee said he did not know but not to worry — that he would pay for it. Appellee took the sign to a sign company, which informed him that the sign was not repairable. In spite of appellee’s assurance that he would “take care of’ the sign, the sign was never repaired, and both parties agreed that it could not be repaired.

Appellee testified that he had “no idea” how the sign got from appellant’s Manila furniture store to his parents’ house but said that he drove the sign 37 miles from his parents’ house in Manila to appellant’s store in Jonesboro to get it programmed. He said he did not notice that the back panel was missing or that the control panel was hanging out of the sign |swhen he picked it up from his parents’ house. He said that he did not do anything to damage the sign and that he drove as an “ordinary, cautious driver pulling a trailer.” Appel-lee testified that he drove his route from Manila back and forth twice looking for the metal that was missing from the sign but did not find it.

Trent Francis, the owner of American Outdoor Fabrication, testified that he sold the trailer sign to appellant. He said that he had probably built twenty similar signs. He said that he fabricated the trailer himself but that the sign was a mail-order digital outdoor sign that he ordered off the internet. He testified that the sign was made to withstand the elements but that he had never repaired one and was not familiar with the sign’s “ihner workings.” He also said that all the screws to appellant’s sign were missing down the back and that the damage was not something that “normally happens just pulling this down the road.” He said that it was not repairable and that appellant would be required to buy a new sign: “I do not.know who you would get to repair it because they are kind of expensive to buy and you would have to send the thing to China or something and get it fixed.” He said that the trailer was fine and he would just replace all the electronics.

Appellant filed a complaint in negligence against appellee, alleging that appellee had a duty to use ordinary care so that the sign he borrowed from appellant would not get damaged and that he breached the duty when the sign was returned in an inoperable, non-repairable condition. The complaint alleged that the damage to the sign was consistent with hitting or bumping it too hard or transporting the sign in a reckless manner and that appellee transported it in a reckless manner causing the damage. He alleged that the fair market value |4of the sign was $8,120.50 (the purchase price paid) and that he had spent $1,701 in advertising due to the sign’s failure to operate. After appellant rested his case, the circuit court granted appellee’s motion for a directed verdict and dismissed the case. Appellant filed this appeal.

A trial court evaluates a motion for directed verdict by deciding whether the evidence is sufficient for the case to be submitted to the jury; that is, whether the case constitutes a prima facie case for relief. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 739, 120 S.W.3d 61, 66 (2003). In making that evaluation, the trial court does not weigh the evidence; rather, the trial court is to view the evidence in a light most favorable to the party opposing the motion. Id. In reviewing an order granting a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was directed. Trotter v. Bowden, 81 Ark.App. 259, 260, 101 S.W.3d 264, 265 (2003). If any substantial evidence exists that tends to establish an issue in favor of that party, then a jury question is presented and the directed verdict should be reversed. Id. at 260, 101 S.W.3d at 265-66. Substantial evidence is evidence of sufficient force and character to induce the mind of the fact-finder past speculation and conjecture. Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 133, 976 S.W.2d 396, 397 (1998).

I. Timeliness of Directed-Verdict Motion

Appellant’s first challenge on appeal is to the timeliness of appellee’s motion for directed verdict. Rule 50 of the Arkansas.Rules of Civil Procedure governs the timing of motions for directed verdict. It gives a party two opportunities to move for a directed |fiverdict: (1) at the close of the evidence offered by an opponent; and (2) at the close of all of the evidence. Ark. R. Civ. P. 50(a) (2013). Appellant contends that appellee made his motion during his own case rather than after appellant rested or at the close of all of the evidence.

Appellant put on seven witnesses in his case in chief, ending with Chief of Police Jackie Hill. One of those witnesses called by appellant was appellee, Wes Wagner. The following colloquy occurred at the conclusion of Chief Hill’s testimony:

Appellant’s Counsel: At this time the plaintiff rests, your Honor.
The CouRT: All right. Now —
Appellee’s Counsel-. Now, before he closes, can I recall Mr. Wagner?

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 442, 440 S.W.3d 352, 2014 Ark. App. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamble-v-wagner-arkctapp-2014.