The Cincinnati Insurance Company v. Kyle B. Johnson
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SUPREME COURT OF ARKANSAS
No. 06-355
Opinion Delivered October 12, 2006
T H E C IN CIN N A T I
COMPANY,
INSURANCE
APPELLANT,
APPEAL FROM THE GREENE COUNTY
CIRCUIT COURT,
NO. CV2004-23(VH),
HON. VICTOR LAMONT HILL, JUDGE,
VS.
KYLE B. JOHNSON,
APPELLEE,
REVERSED AND DISMISSED.
JIM GUNTER, Associate Justice
This appeal arises from an order granting a motion for new trial filed by appellee,
Kyle B. Johnson, after a Greene County jury entered judgment in his favor in a case for
underinsured motorist benefits arising from a motor-vehicle accident involving Johnson and
Suzanne King, who was insured by appellant, The Cincinnati Insurance Company
(Cincinnati). Cincinnati now appeals the order granting Johnson’s motion for new trial. We
reverse the circuit court’s order and dismiss the appeal.
On November 7 and 8, 2005, a twelve-person jury returned a verdict in favor of
Johnson, and on November 23, the circuit court entered an order consistent with the jury’s
verdict. On December 5, 2005, Johnson filed a motion for judgment notwithstanding the
verdict and a motion for new trial. In his motions, Johnson argued that the jury properly
found that he suffered injuries that were caused by the collision, for which he was awarded
$6,268.80 for past medical and future medical expenses, respectively. Johnson asserted that
the jury failed to assess damages for each element of damages, including pain and suffering
in the past and future, as well as mental anguish. Johnson requested that the circuit court set
aside the jury verdict in the amount of $12,537.60, and enter a judgment notwithstanding the
verdict (JNOV) in a reasonable amount for each of the elements of damages. Alternatively,
Johnson requested a new trial under Ark. R. Civ. P. 50(b)(3).
On January 5, 2006, the circuit court held a hearing by telephone conference on
Johnson’s motions for JNOV and for new trial. After hearing arguments and reviewing the
pleadings, the circuit court granted Johnson’s motion for new trial pursuant to Ark. R. Civ.
P. 59. In its order, the circuit court stated that it instructed the jury to award Johnson each
of the other elements of damages in accordance with AMI Jury Instruction 2201. The court
found that (1) the jury found from a preponderance of the evidence that the admitted
negligence of Suzanne King [Cincinnati’s insured] was a proximate cause of any damages
suffered by Johnson; and (2) the itemized jury verdict showed a jury verdict for Johnson in
the amount of $6,268.80 for past medical bills, $6,268.80 for future medical bills, $0 for past
pain and suffering, $0 for nature and extent of injury, $0 for future pain and suffering, $0 for
past mental anguish, $0 for future mental anguish, and $0 for loss of ability to earn in the
future. The circuit court ruled that “[t]here was no rational basis for the jury to return a
verdict in favor of the plaintiff on the issue of admitted negligence of the tortfeasor being ‘a
proximate cause’ of damages suffered by the plaintiff, and to award the plaintiff of all of his
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past medical bills and a like sum for future medical bills, but to not award anything for pain
and suffering based upon injuries that the defense admitted included a broken finger, cervical
strain, and other injuries.” The court set aside the judgment and granted Johnson’s motion
for new trial. From this order, Cincinnati brings its appeal.
For its first point on appeal, Cincinnati argues that the circuit court did not have
jurisdiction to issue its January 5, 2006, order granting Johnson’s motion for new trial.
Specifically, Cincinnati contends that the circuit court did not grant a new trial within thirty
days, as required by Ark. R. Civ. P. 59(b), and Johnson’s motion was deemed denied on the
thirtieth day. Cincinnati asserts that the circuit court was without jurisdiction to enter its
order after the thirty-day period under Rule 59(b).
Johnson responds, arguing three points to affirm the circuit court’s order. First,
Johnson contends that the circuit court should be affirmed in granting a new trial because
Cincinnati lacked standing to challenge the circuit court’s order thirty-one days after the
filing of Johnson’s motion for new trial. Second, Johnson maintains that the circuit court’s
order should be affirmed because his constitutional right to due process was violated. Third,
appellant argues that the circuit court retained jurisdiction to conduct a hearing and to rule
on his motion for new trial under Amendment 80 of the Arkansas Constitution.
Rule 59(b) establishes when a new trial motion shall be filed, and provides as follows:
(b) Time for Motion. A motion for a new trial shall be filed not later
than 10 days after the entry of judgment . . . . If the court neither grants nor
denies the motion within 30 days of the date on which it is filed or treated as
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filed, it shall be deemed denied as of the 30th day.
Id.; see also Ark. R. App. P. 4(b)(1).
We have held that a trial court loses jurisdiction to act on a Rule 59 motion thirty days
after the motion is filed. Reis v. Yates, 313 Ark. 300, 854 S.W.2d 335 (1993). We similarly
held in Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992), where Isely
brought a personal-injury action on behalf of his daughter against Wal-Mart, and the jury
returned a verdict in Wal-Mart’s favor. The circuit court entered the order on April 2, 1991,
and Isely filed a motion for new trial on April 9, 1991. A hearing was not held until June 7,
1991, and the order granting the new trial was not entered until June 19, 1991. We reversed
and dismissed, holding that the circuit court lost jurisdiction of the motion by failing to rule
on it within thirty days after filing. Id.; see also McCoy v. Moore, 338 Ark. 740, 1 S.W.3d
11 (1999) (holding that a motion to vacate was treated as a motion for new trial, which was
deemed denied after thirty days).
With this precedent in mind, we turn to the present case. Here, the jury awarded
Johnson damages for past and future medical expenses, and the circuit court entered an order
consistent with the jury’s findings on November 21, 2005. On December 5, 2005, Johnson
filed his motion for new trial. The filing of his motion for new trial was within the ten-day
requirement of Rule 59(b). See also Ark. R. Civ. P. 6(a). On January 5, 2006, the circuit
court entered its order granting a new trial thirty-one days after Johnson filed his motion for
new trial. Thus, the circuit court’s order is without effect because it failed to act on
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Johnson’s motion within the thirty-day period following its filing. The motion was deemed
denied on Wednesday, January 4, 2006, and the circuit court did not have jurisdiction to act
beyond that date. See McCoy, supra. Therefore, we conclude that the circuit court lost
jurisdiction to rule on that motion. See Wal-Mart Stores, supra.
We now address Johnson’s other arguments made to this court. Johnson concedes
in his brief that the order granting a new trial was filed on the thirty-first day. However,
Johnson argues that the circuit court properly granted his motion for new trial because
Cincinnati lacked standing to challenge the motion because it did not exhaust its remedies
in the circuit court below. Specifically, Johnson contends that Cincinnati waived its
jurisdictional objection by failing to bring the deemed-denied rule to the court’s attention
during the telephone hearing on January 5, 2006.
Johnnson’s argument is misplaced for the following reasons. First, we have said that
the question of whether the trial court acted in excess of its authority becomes a matter of
subject-matter jurisdiction and may be raised sua sponte. O’Connor v. State, ___ Ark. ___,
___ S.W.3d ___ (June 29, 2006). Second, Johnson couches his argument in terms of
Cincinnati’s standing, but rather, he makes a preservation argument with regard to
Cincinnati’s waiving jurisdiction by participating in the January 5 hearing. We have said,
in our unvarying application of the rule, that subject matter jurisdiction is always open,
cannot be waived, can be questioned for the first time on appeal, and can even be raised by
this court. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 576, 535 S.W.2d 810,
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814 (1976). Thus, the issue of jurisdiction is properly before us.
Further, Johnson argues that the circuit court correctly granted his motion for new
trial because to do otherwise will violate his constitutional due-process right to a hearing.
Specifically, Johnson asserts that the “deemed-denied” provision of Rule 59(b) precludes
“his opportunity to have a requested hearing.” Johnson also makes a separation-of-powers
argument, citing the language of Amendment 80.
We have said that the failure to obtain a ruling on an issue at the circuit court level,
including a constitutional issue, precludes review on appeal. Huddleston v. State, 347 Ark.
226, 61 S.W.3d 163 (2001). Here, we do not find any evidence in the record that Johnson
raised his due-process and separation-of-powers arguments to the circuit court or that the
circuit court ruled on these arguments. Absent in the record is a transcript of the telephone
conference on January 5, 2006, where Johnson could have raised these issues. Johnson
attributes his lack of a hearing to a scheduling delay by Cincinnati’s counsel. However,
Johnson provides no adequate explanation as to why the hearing could not have taken place
at any time during the thirty-day period, nor does he point us to any ruling on the
constitutional issues. Unless a hearing is requested by counsel or ordered by the court, a
hearing will be deemed waived and the court may act upon the matter without further notice
after the time for reply has expired. Ark. R. Civ. P. 78(c). For these reasons, we are
precluded from reaching the merits of Johnson’s due-process and separation-of-powers
arguments.
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Based upon the foregoing conclusions, we hold that the circuit court was without
jurisdiction to hold the hearing and to enter the order on January 5, 2006, on Johnson’s
motion for new trial. Accordingly, we lack jurisdiction to consider the issues, and we dismiss
the appeal. See Murchison v. Safeco Ins. Co. of Illinois, __ Ark. ___, ___ S.W.3d ___ (June
29, 2006).
Reversed and dismissed.
B ROWN, J., not participating.
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