Southwestern Bell Telephone Co. v. Mid-State Construction Co.

Supreme Court of Arkansas

Southwestern Bell Telephone Co. v. Mid-State Construction Co.

688 S.W.2d 278, 285 Ark. 413, 1985 Ark. LEXIS 1934

CourtSupreme Court of Arkansas

DecidedApril 22, 1985

Docket84-300

StatusPublished

Cited by1 cases

This text of 688 S.W.2d 278 (Southwestern Bell Telephone Co. v. Mid-State Construction Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Southwestern Bell Telephone Co. v. Mid-State Construction Co., 688 S.W.2d 278, 285 Ark. 413, 1985 Ark. LEXIS 1934 (Ark. 1985).

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Opinion

George Rose Smith, Justice.

This action was brought by the appellant, Southwestern Bell, to recover for damage to its underground cables caused by the appellee, Mid-State Construction Company. Mid-State counterclaimed for the amount of needless expenses incurred as a result of Southwestern Bell’s misrepresentation of the location of the cables and negligent failure to relocate them as promised. The jury awarded Southwestern Bell $216.34 on its complaint and Mid-State $4,110.40 on its counterclaim. Southwestern Bell appeals on the single ground that the verdict against it is not supported by sufficient evidence. Rule 29(1 )(o) brings the case to us.

We cannot reach the merits of the appeal, because the issue was not properly raised below. Counsel did not file a motion for a directed verdict on the counterclaim and instead sought to question the sufficiency of the evidence by a motion for a new trial. That procedure was formerly permissible, but more than a year before the trial we amended Civil Procedure Rule 50(e) to eliminate that method of questioning the opposing party’s proof. The change was desirable, for if a party cannot produce substantial evidence to support his claim, a new trial would be useless.

The controlling Rule, since the 1983 revision, has read as follows:

(e) Failure to Question Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

The Reporter’s Notes were amended to call attention to the deletion:

Rule 50(e) is amended to omit the reference to the motion for new trial as a means of challenging the sufficiency of the evidence. Motions for directed verdict and judgment notwithstanding the verdict are used to challenge the sufficiency of the evidence.

In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983). The issue that Southwestern Bell seeks to present to this Court has been waived.

Affirmed.

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George Rose Smith, Justice.

This action was brought by the appellant, Southwestern Bell, to recover for damage to its underground cables caused by the appellee, Mid-State Construction Company. Mid-State counterclaimed for the amount of needless expenses incurred as a result of Southwestern Bell’s misrepresentation of the location of the cables and negligent failure to relocate them as promised. The jury awarded Southwestern Bell $216.34 on its complaint and Mid-State $4,110.40 on its counterclaim. Southwestern Bell appeals on the single ground that the verdict against it is not supported by sufficient evidence. Rule 29(1 )(o) brings the case to us.

We cannot reach the merits of the appeal, because the issue was not properly raised below. Counsel did not file a motion for a directed verdict on the counterclaim and instead sought to question the sufficiency of the evidence by a motion for a new trial. That procedure was formerly permissible, but more than a year before the trial we amended Civil Procedure Rule 50(e) to eliminate that method of questioning the opposing party’s proof. The change was desirable, for if a party cannot produce substantial evidence to support his claim, a new trial would be useless.

The controlling Rule, since the 1983 revision, has read as follows:

(e) Failure to Question Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

The Reporter’s Notes were amended to call attention to the deletion:

Rule 50(e) is amended to omit the reference to the motion for new trial as a means of challenging the sufficiency of the evidence. Motions for directed verdict and judgment notwithstanding the verdict are used to challenge the sufficiency of the evidence.

In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983). The issue that Southwestern Bell seeks to present to this Court has been waived.

Affirmed.

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688 S.W.2d 278, 285 Ark. 413, 1985 Ark. LEXIS 1934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwestern-bell-telephone-co-v-mid-state-construction-co-ark-1985.

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