Reason: I attest to the accuracy and integrity of this document Date: Cite as 2020 Ark. App. 414 2021-07-08 15: 06:09 ARKANSAS COURT OF APPEALS Foxit DIVISION I PhantomPDF Version: 9.7.5 No. CV-18-651
JESSE CURETON AND JOIE Opinion Delivered: September 16, 2020 CURETON APPELLANTS APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72CV-17-470] CALVIN STOUT APPELLEE HONORABLE DOUG MARTIN, JUDGE
APPEAL DISMISSED
MIKE L. MURPHY, Judge
This appeal is a companion to Cureton v. Stout, 2020 Ark. App. 406, also handed
down today.1 In this appeal, Jesse Cureton and Joie Cureton appeal the compensatory-
damages award received from a jury trial in the Washington County Circuit Court. 2 For
the reasons explained below, we must dismiss the appeal for lack of a final, appealable order.
Siblings Jesse Cureton and Joie Cureton were injured in a multivehicle accident on
September 25, 2016. The accident occurred when the appellee Calvin Stout attempted a
left-hand turn in front of on-coming traffic, and his vehicle collided with a vehicle driven
1 Both appeals arise out of a single lawsuit wherein appellants sought both compensatory and punitive damage from appellee Calvin Stout as a result of a motor-vehicle accident. 2 Although judgment was entered against Stout, he has not appealed. by Edward Stith.3 This initial collision forced Stith’s vehicle into the Cureton vehicle. Stout
was subsequently charged with driving while intoxicated and later pled guilty.
On March 9, 2017, the Curetons4 filed suit against Stout, alleging negligence and
seeking both compensatory and punitive damages because Stout was driving while
intoxicated at the time of the motor vehicle collision. Stout answered the complaint,
admitting liability for all compensatory damages to the Curetons but denying that he was
liable for punitive damages.
Stout moved to bifurcate the proceedings into two stages, compensatory damages
and punitive damages, pursuant to Arkansas Rule of Civil Procedure 42(b). He argued that
because he had admitted liability, the only relevant issues at the compensatory-damages stage
were the injuries and the amount of compensatory damages sustained by the plaintiffs as a
result of the accident. He contended that evidence of his intoxication or that some conduct
may have been willful, wanton, or intentional, on the other hand, was relevant only with
respect to the claim for punitive damages.
3 Stith was not named as a party in the subsequently filed lawsuit. 4 The plaintiffs in the initial complaint were Jesse, who was the driver of the vehicle, and Chad and Monica Cureton, in their capacity as parents and guardians of Joie, who was a passenger and a minor at the time of the accident. During the pendency of the case, Joie reached the age of majority. The complaint was amended numerous times thereafter, but in the final amended complaint filed, Chad and Monica were still listed as parties although the complaint alleged that they were no longer necessary parties due to Joie’s reaching the age of majority. The appellate record indicates the court orally dismissed Chad and Monica on the morning of trial; however, we were unable to find in our record any order either substituting Joie for Chad and Monica or any order formally dismissing Chad and Monica as parties. We note an oral ruling is not sufficient to dismiss a party from an action, as an oral order announced from the bench does not become effective until reduced to writing and filed. Ark. Sup. Ct. Admin. Order No. 2(b)(2) (2019); McGhee v. Ark. Bd. of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006).
2 The Curetons opposed the motion to bifurcate, arguing that it should be denied
because it would violate judicial economy and prejudice their claims. Additionally, they
argued that Stout failed to show that bifurcation was needed.
On March 7, 2018, the circuit court entered an order granting Stout’s motion to
bifurcate. The court found that, given Stout’s admission of liability, evidence concerning
intoxication had only limited probative value to the issue of compensatory damages. The
court also found that pursuant to Arkansas Rule of Evidence 403, the risk of undue prejudice
of such evidence during the compensatory phase of the trial substantially outweighed any
probative value it may have under Arkansas Rule of Evidence 401. The circuit court
bifurcated the compensatory- and punitive-damages claims pursuant to Rule 42(b) of the
Arkansas Rules of Civil Procedure into separate phases of one trial to be conducted before
the same jury.
On March 8, 2018, Stout filed a second motion in limine. In this motion, he sought
to exclude any history of prior DUIs or DWIs he had received as completely irrelevant to
any phase of trial or any issue remaining to be tried. He had testified in a deposition that he
had received more than one DWI or DUI over thirty years prior to the accident in this case.
In their March 9, 2018 response to Stout’s motion in limine, the Curetons agreed
that because Stout admitted liability, the traffic citations and subsequent convictions were
not relevant in the compensatory-damages phase of the trial. The Curetons stated that they
understood the court’s ruling on the motion to bifurcate and would abide by the ruling.
The parties proceeded to a jury trial on March 13-14, 2018. After completing the
compensatory-damages phase of the trial, the jury returned with separate verdicts awarding
3 the Curetons $1,000 each in compensatory damages. Each verdict form was signed by ten
jurors. The parties then commenced the second punitive-damages phase of the trial.
During his opening statement of the punitive-damages phase, the Curetons’ attorney
said “we’re asking you to punish the defendant for his behavior. This was not his first DWI.”
Stout’s attorney immediately asked to approach the bench, at which time he objected and
brought up his second motion in limine about the prior DWIs and the court’s handling of
the matter in chambers prior to trial. The court agreed that its orders and/or instructions
had been violated by the Curetons’ attorney and that there was no way to cure such a
violation. Stout sought a mistrial only as to the punitive-damages phase because the
compensatory-damages phase had been tried and the jury had rendered verdicts and also
because the punitive-damages phase could be heard separate and apart from the
compensatory-damages trial. The Curetons argued that any mistrial should be for both
phases of the case. The court granted the mistrial only as to the punitive-damages phase and
discharged the jury.5 The court’s mistrial ruling was memorialized in a detailed order entered
on March 22, 2018.
On April 10, 2018, judgment was entered on the jury’s verdicts of compensatory
damages. On May 10, the Curetons filed their notice of appeal from this judgment.
The Curetons raise several points in this appeal. We are not able to address the merits
of the appeal at this time due to finality issues. Whether an order is final and subject to
appeal is a jurisdictional question that this court will raise sua sponte. Moses v. Hanna’s Candle
5 On July 11, 2018, a separate jury heard the evidence on punitive damages and rendered a verdict that is the basis of the companion appeal. See Cureton v. Stout, 2020 Ark. App. 406, the companion case handed down this day.
4 Co., 353 Ark.
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Reason: I attest to the accuracy and integrity of this document Date: Cite as 2020 Ark. App. 414 2021-07-08 15: 06:09 ARKANSAS COURT OF APPEALS Foxit DIVISION I PhantomPDF Version: 9.7.5 No. CV-18-651
JESSE CURETON AND JOIE Opinion Delivered: September 16, 2020 CURETON APPELLANTS APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72CV-17-470] CALVIN STOUT APPELLEE HONORABLE DOUG MARTIN, JUDGE
APPEAL DISMISSED
MIKE L. MURPHY, Judge
This appeal is a companion to Cureton v. Stout, 2020 Ark. App. 406, also handed
down today.1 In this appeal, Jesse Cureton and Joie Cureton appeal the compensatory-
damages award received from a jury trial in the Washington County Circuit Court. 2 For
the reasons explained below, we must dismiss the appeal for lack of a final, appealable order.
Siblings Jesse Cureton and Joie Cureton were injured in a multivehicle accident on
September 25, 2016. The accident occurred when the appellee Calvin Stout attempted a
left-hand turn in front of on-coming traffic, and his vehicle collided with a vehicle driven
1 Both appeals arise out of a single lawsuit wherein appellants sought both compensatory and punitive damage from appellee Calvin Stout as a result of a motor-vehicle accident. 2 Although judgment was entered against Stout, he has not appealed. by Edward Stith.3 This initial collision forced Stith’s vehicle into the Cureton vehicle. Stout
was subsequently charged with driving while intoxicated and later pled guilty.
On March 9, 2017, the Curetons4 filed suit against Stout, alleging negligence and
seeking both compensatory and punitive damages because Stout was driving while
intoxicated at the time of the motor vehicle collision. Stout answered the complaint,
admitting liability for all compensatory damages to the Curetons but denying that he was
liable for punitive damages.
Stout moved to bifurcate the proceedings into two stages, compensatory damages
and punitive damages, pursuant to Arkansas Rule of Civil Procedure 42(b). He argued that
because he had admitted liability, the only relevant issues at the compensatory-damages stage
were the injuries and the amount of compensatory damages sustained by the plaintiffs as a
result of the accident. He contended that evidence of his intoxication or that some conduct
may have been willful, wanton, or intentional, on the other hand, was relevant only with
respect to the claim for punitive damages.
3 Stith was not named as a party in the subsequently filed lawsuit. 4 The plaintiffs in the initial complaint were Jesse, who was the driver of the vehicle, and Chad and Monica Cureton, in their capacity as parents and guardians of Joie, who was a passenger and a minor at the time of the accident. During the pendency of the case, Joie reached the age of majority. The complaint was amended numerous times thereafter, but in the final amended complaint filed, Chad and Monica were still listed as parties although the complaint alleged that they were no longer necessary parties due to Joie’s reaching the age of majority. The appellate record indicates the court orally dismissed Chad and Monica on the morning of trial; however, we were unable to find in our record any order either substituting Joie for Chad and Monica or any order formally dismissing Chad and Monica as parties. We note an oral ruling is not sufficient to dismiss a party from an action, as an oral order announced from the bench does not become effective until reduced to writing and filed. Ark. Sup. Ct. Admin. Order No. 2(b)(2) (2019); McGhee v. Ark. Bd. of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006).
2 The Curetons opposed the motion to bifurcate, arguing that it should be denied
because it would violate judicial economy and prejudice their claims. Additionally, they
argued that Stout failed to show that bifurcation was needed.
On March 7, 2018, the circuit court entered an order granting Stout’s motion to
bifurcate. The court found that, given Stout’s admission of liability, evidence concerning
intoxication had only limited probative value to the issue of compensatory damages. The
court also found that pursuant to Arkansas Rule of Evidence 403, the risk of undue prejudice
of such evidence during the compensatory phase of the trial substantially outweighed any
probative value it may have under Arkansas Rule of Evidence 401. The circuit court
bifurcated the compensatory- and punitive-damages claims pursuant to Rule 42(b) of the
Arkansas Rules of Civil Procedure into separate phases of one trial to be conducted before
the same jury.
On March 8, 2018, Stout filed a second motion in limine. In this motion, he sought
to exclude any history of prior DUIs or DWIs he had received as completely irrelevant to
any phase of trial or any issue remaining to be tried. He had testified in a deposition that he
had received more than one DWI or DUI over thirty years prior to the accident in this case.
In their March 9, 2018 response to Stout’s motion in limine, the Curetons agreed
that because Stout admitted liability, the traffic citations and subsequent convictions were
not relevant in the compensatory-damages phase of the trial. The Curetons stated that they
understood the court’s ruling on the motion to bifurcate and would abide by the ruling.
The parties proceeded to a jury trial on March 13-14, 2018. After completing the
compensatory-damages phase of the trial, the jury returned with separate verdicts awarding
3 the Curetons $1,000 each in compensatory damages. Each verdict form was signed by ten
jurors. The parties then commenced the second punitive-damages phase of the trial.
During his opening statement of the punitive-damages phase, the Curetons’ attorney
said “we’re asking you to punish the defendant for his behavior. This was not his first DWI.”
Stout’s attorney immediately asked to approach the bench, at which time he objected and
brought up his second motion in limine about the prior DWIs and the court’s handling of
the matter in chambers prior to trial. The court agreed that its orders and/or instructions
had been violated by the Curetons’ attorney and that there was no way to cure such a
violation. Stout sought a mistrial only as to the punitive-damages phase because the
compensatory-damages phase had been tried and the jury had rendered verdicts and also
because the punitive-damages phase could be heard separate and apart from the
compensatory-damages trial. The Curetons argued that any mistrial should be for both
phases of the case. The court granted the mistrial only as to the punitive-damages phase and
discharged the jury.5 The court’s mistrial ruling was memorialized in a detailed order entered
on March 22, 2018.
On April 10, 2018, judgment was entered on the jury’s verdicts of compensatory
damages. On May 10, the Curetons filed their notice of appeal from this judgment.
The Curetons raise several points in this appeal. We are not able to address the merits
of the appeal at this time due to finality issues. Whether an order is final and subject to
appeal is a jurisdictional question that this court will raise sua sponte. Moses v. Hanna’s Candle
5 On July 11, 2018, a separate jury heard the evidence on punitive damages and rendered a verdict that is the basis of the companion appeal. See Cureton v. Stout, 2020 Ark. App. 406, the companion case handed down this day.
4 Co., 353 Ark. 101, 103, 110 S.W.3d 725, 726 (2003). In order to discourage piecemeal
litigation, an appeal may be taken only from a final judgment or decree, with certain limited
exceptions. For a judgment to be final, it must dismiss the parties from the court, discharge
them from the action, or conclude their rights to the subject matter in controversy. See Ark.
R. App. P.–Civ. 2(a). Arkansas Rule of Civil Procedure 54(b) permits an appeal from an
order resolving fewer than all claims against all parties but only when a proper certificate is
executed by the circuit court. Without either a final order pursuant to Arkansas Rule of
Appellate Procedure–Civil 2(a) or an order with a proper Arkansas Rule of Civil Procedure
54(b) certification, we do not have jurisdiction to hear this case. Moses, supra. We do not
have such an order here.6
A circuit court, in furtherance of convenience or to avoid prejudice, or when separate
trials will be conducive to expedition and economy, may order a separate trial of any claim
or issue. Ark. R. Civ. P. 42(b). However, when separate trials are ordered, the case as a
whole remains intact and usually results in but one judgment. See Barnhart v. City of
Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994). “There is no final judgment until all of
the issues have been resolved and judgment entered on the whole case unless a lesser
judgment is certified under the provisions of Rule 54(b).” Id. at 744–45, 875 S.W.2d at 80–
81 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2392
(1st ed. 1971)). Consequently, a trial on any of the individual issues does not result in a final
6 We are cognizant that the Curetons attempted to obtain a Rule 54(b) certification from the court but were denied. This denial of certification is not itself appealable nor does it render the compensatory-damages judgment a final order. See Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App. 58.
5 judgment for purposes of appeal. See Barnhart, supra; Ellis v. Agriliance, LLC, 2012 Ark. App.
549.
The circuit court in this case ordered separate trials on the issues of compensatory
and punitive damages in order to avoid prejudice to Stout.7 However, pursuant to Arkansas
Rule of Civil Procedure 42(b), the case as a whole remained intact until the entry of a single
judgment. Barnhart, supra. The confusion here occurs because the court entered two separate
judgments instead of one single judgment. But the entry of the two separate judgments does
not circumvent our rules on finality. The compensatory-damages judgment in this appeal is
not final because it did not resolve the issue of punitive damages. As such, it did not dismiss
the parties from the court, discharge them from the action, or conclude their rights to the
subject matter in controversy. Nor did the circuit court issue a Rule 54(b) certification
allowing for an interlocutory appeal of its decision. Because the order on appeal is not final,
the appeal is subject to dismissal. Servewell Plumbing, LLC v. Summit Contractors, Inc., 360
Ark. 521, 202 S.W.3d 525 (2005); Barnhart, supra.
Appeal dismissed.
WHITEAKER and HIXSON, JJ., agree.
Rainwater, Holt & Sexton, P.A., by: Meredith S. Moore, for appellants.
Benson & Bennett, P.L.C., by: Justin Bennett, for appellee.
7 We are cognizant of the fact that in this appeal, the Curetons have alleged that the circuit court erred in its ruling on separate trials. We are not addressing the merits of this alleged error. We are merely concluding that the ruling of the court concerning the separation of trials creates a finality issue.