Briefing and Appellate Advocacy.
Selected Significant Cases
Barner v. Thompson-Center, LLC, 796 F.3d 897 (8th Cir. 2015). After problems with service of process on the predecessor corporation of the defendant, the trial court dismissed the case with prejudice. We appealed to the Eighth Circuit and reversed the dismissal. The case was remanded for trial.
Brantley v. N. W. Ark. Hospitals, LLC, 2014 Ark.App. 275, 435 S.W.3d 1. A directed verdict in favor of a physician in a medical malpractice case was reversed and remanded for trial.
Cannady v. St. Vincent Infirmary Med. Ctr, 2012 Ark. 359, 423 S.W.3d 548. This case arose out of allegations that medical care providers improperly accessed the medical records of Ann Pressly, a popular local newscaster, when she was hospitalized, and ultimately died, as the result of a brutal assault. We sued the medical care providers for improperly accessing the records. The trial court dismissed the case. The Arkansas Supreme Court reversed and sent the case back to the trial court.
Bismarck Sch. Dist v. Sims, 2012 Ark. App. 239, 406 S.W.3d 805. This is an important Teacher Fair Dismissal Act case. The Plaintiff was fired for not noticing an error involving Arkansas Department of Education changes in the rules for graduation. Plaintiff's supervisors had been given notice of the change, but Plaintiff had not. The Trial Court overturned the Bismarck School District's decision. That was affirmed by the Arkansas Court of Appeals.
Broussard v. St. Edward Mercy Health Svs., Inc, 2012 Ark. 14, 386 S.W.2d 385. The "same specialty" requirement in medical malpractice cases was struck down as unconstitutional. This was one of the major cases involving "tort reform" acts by the Arkansas Legislature.
Aon Risk Services, Inc. v. Meadors, 100 Ark.App. 272, 267 S.W.3d 603 (2007). This was a complicated claim for unpaid commissions. A Pulaski County jury awarded appellee John Meadors $2,509,127.60 on several breach-of-contract claims against his employer, appellant Aon Risk Services, Inc., of Arkansas. In order to prove this case, it was necessary to go through a tremendous amount of documentation and do investigation in Little Rock, Dallas, and Chicago. The trial judge substantially reduced the damages. This meant all parties ended up appealing the final judgment. On appeal. The Court of Appeals reinstated the jury's verdict. The Supreme Court denied review.
One Nat. Bank v. Pope, 272 S.W.3d 98, 372 Ark. 208 (Ark., 2008). This was a tragic case. A mother and her two daughters were killed when a minister, driving back from a church fishing trip with a passenger from his church, fell asleep at the wheel. His car collided with the car driven by the mother, Lorrie Kaz, and her daughters, Dusti and Julianne. All three were killed instantly. One National Bank was appointed administrator of their estates. This case was pursued against the minister, the church, and its insurance company. The church and the insurer denied liability, contending that the minister was an independent contractor and that he was outside the course and scope of his employment at the time of the accident. Another issue was the question of "loss of life" damages under Arkansas law. The question was what evidence was necessary to prove entitlement to loss of life damages. The trial judge held that the evidence was sufficient to submit the issue to the jury as to the daughters, but as to the mother, the judge held the evidence insufficient. The jury awarded loss of life and mental anguish damages on the estates of the two daughters, but was only allowed to award mental anguish damages to the mother's surviving children. After the verdict, the church and insurer appealed the judgment on the issue of their responsibility for the minister. The estate appealed the trial judge's decision not to submit the loss of life element to the jury. On appeal, the Arkansas Supreme Court upheld the jury's determination that the church and its insurer should have been responsible for the minister's actions. The Supreme Court also held that the evidence for loss of life for the mother had been sufficient to submit the case to the jury. This case will be significant as it will help lawyers and judges know what evidence is necessary to prove entitlement to "loss of life" damages under Arkansas law. As to the church's liability, this case is somewhat unusual as it occurred at a time that Arkansas law on charitable immunity was unclear. In more recent decisions, the Arkansas Supreme Court has clarified the law and made it clear that charitable immunity does exist, and that the proper defendant is the charity's liability insurance carrier. During the time this case was pending, the law was unclear, so the only safe procedure was to maintain the lawsuit against both. Further, we contended that the language of the church's insurance policy made the minister himself an "insured" under the policy. There was collateral litigation about that issue as well.
McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007). The plaintiff lost a leg because of unnecessary surgery. The jury awarded $2,800,000 in actual damages, $200,000 in loss of consortium, and $500,000 in punitive damages. This case was tried by Bobby McDaniel and John Burnett. Gerry Schulze was brought in to draft motions and briefs at the trial level, and for the appeal. There were some complex procedural issues dealing with service of process, but this case is remarkable for the award of punitive damages against a physician in a medical negligence case. The evidence was that the physician falsified records to make an unnecessary surgery seem necessary and performed a "botched" surgery ultimately resulting in the amputation of the plaintiff's leg. After an exhaustive review of all the evidence, the Arkansas Supreme Court held that, "In viewing the evidence in the light most favorable to the Montgomerys, we hold there was sufficient evidence for the jury to have determined that McCoy engaged in malicious conduct in his treatment of Montgomery, warranting an award of punitive damages." This case is worthy of study. It will be a landmark for many years in determining under what circumstances a physician can be held liable for punitive damages. This case is also notable for the highly unusual behavior of one of the expert witnesses for the defendant, who unilaterally refused to answer questions posed to him at his deposition.
Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). A pharmacist gave the plaintiff the wrong medication. Plaintiff took the medication for approximately two days. His symptoms did not improve and finally his wife inspected the medication and discovered that he had been given the wrong medication. As a result of the error, plaintiff suffered damage that ultimately resulted in post-traumatic stress disorder. The case was handled at trial by John Burnett. Gerry Schulze was brought in for the appeal.A pharmacist gave the plaintiff the wrong medication. Plaintiff took the medication for approximately two days. His symptoms did not improve and finally his wife inspected the medication and discovered that he had been given the wrong medication. As a result of the error, plaintiff suffered damage that ultimately resulted in post-traumatic stress disorder. The case was handled at trial by John Burnett. Gerry Schulze was brought in for the appeal. A verdict of $840,000 was affirmed.
Supreme Court Review
The Arkansas Supreme Court is the highest court in the Arkansas appellate system. From time to time, the Arkansas Supreme Court reviews cases decided by the Court of Appeals. The review is usually granted because there is a significant issue to be resolved.
The grant of review is not necessarily a sign that the Arkansas Supreme Court wants to change the result. As can be seen from our cases in which the Supreme Court granted review, the Supreme Court often reaches the same result, and sometimes even for the same reason. As a technical matter, the decision of the Court of Appeals is always vacated, and the Supreme Court decision becomes the final decision.
Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637 and Berryhill v. Synatzske, 2013 Ark. App. 483. Mary Berryhill sued Frances Synatzke, alleging that Synatzke was responsible for a car accident between Berryhill and Synatzke. Berryhill also sued a "John Doe" that was designated to represent the estate of any defendant who predeceased the service of the complaint. At the time the complaint was filed, however, Synatzke had died. After the statute of limitations had passed, Berryhill filed an amended complaint naming Synatzke’s estate as a party. The estate filed a motion for summary judgment asserting that the original complaint was a nullity because Synatzke had died prior to the filing of the original complaint, and therefore, the complaint could not be transformed into a valid suit by amending the complaint after the statute of limitations had passed. The circuit court granted summary judgment for the estate. The Court of Appeals reversed, holding (1) because the identity of the tortfeasor, the estate, was unknown to Berryhill at the time she filed her original complaint, Ark. Code Ann. 16-56-125 was applicable to her claim and tolled the statute of limitations; and (2) because there was a valid pleading to relate back to, the real party, the estate, could be substituted for the John Doe defendant in the original complaint. The Estate of Synatzske asked the Arkansas Supreme Court to review the decision. The Arkansas Supreme Court did review the decision, and reached the same result as the Court of Appeals for the same reasons.
Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876 and Smith v. Rebsamen Med. Ctr, Inc., 2011 Ark. App 722, 387 S.W.3d 193. This case was significant because it helped to solidify the law that one division of the circuit court cannot disregard the orders of another division of the Circuit Court. Plaintiff petitioned to be special administrator of the estate of the decedent. The Probate Division notified Plaintiff's counsel that the order appointing Plaintiff as the special administrator had been entered. On the basis of that, Plaintiff filed a medical malpractice wrongful death case against the Defendants. Plaintiff's counsel then learned that the Probate order had not been entered, and asked the Probate Court for an order that the appointment was effective "nunc pro tunc" before the filing of the malpractice case. The judge in the malpractice case found that the Probate order was ineffective and dismissed the case. The Arkansas Court of Appeals ruled that the Circuit Judge in the malpractice case could not disregard the ruling of the Circuit Judge in the Probate case and remanded the case for trial. Defendants asked the Supreme Court to review the case. The Supreme Court did review the case, and held that "The civil division of circuit court lacked any authority to invalidate or disregard the order from the probate division, which established that Appellants had been appointed as co-special administrators prior to the filing of the wrongful-death complaint." Again, the Supreme Court reached the same conclusion as the Court of Appeals.
Nat'l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 384 S.W.3d 754 and Nat'l Bank of Ark v. River Crossing Partners, LLC, 2010 Ark. App. 841. This is an example of a case in which the Supreme Court granted review for the purpose of making a subtle correction. The Court of Appeals held that the "clean up doctrine" applied in the case. The "clean up doctrine" allowed a chancery court to resolve all issues when a case involved both legal and equitable claims. Under the law before Amendment 80, chancery courts and circuit courts were different courts. After Amendment 80, the circuit and chancery courts were merged, and all are circuit courts. We asked the Arkansas Supreme Court to review on the basis that the "clean up doctrine" should not have survived Amendment 80. The Arkansas Supreme Court took the case and reviewed it. The Court reached the same result, but did not base its decision on the "clean up doctrine." Whether the "clean-up doctrine" survives Amendment 80 remained undecided. The Court of Appeals decision that applied the "clean-up doctrine" in this case was vacated.
Campbell v. Entergy Ark., Inc., 363 Ark. 132, 211 S.W.3d 500 (2005); court of appeals decision unpublished. We appealed a defense verdict, arguing that the circuit court erred when it submitted the issue of comparative fault to
the jury by special interrogatories without affording him the opportunity to argue the effect of answers to those interrogatories as provided by Ark.Code Ann. § 16-64-122(d)(Supp.2003). The Arkansas Court of Appeals reversed the verdict, and Entergy filed a petition for review, which the Supreme Court granted because it presented an important issue of law. The Arkansas Suprme Court agreed with us and the Court of Appeals that the procedure used by the circuit court violated section 16-64-122(d). Again, the same result was reached for the same reason.
The significance of "reported" cases has changed in recent years. At one time, most Arkansas Supreme Court cases were published. The Arkansas Court of Appeals designated significant cases for publication, but did not publish cases that the Court felt did not clarify or explain the law. Likewise, the Federal Courts designated some cases for publication, but that designation was reserved to cases that were felt to be significant in the development of the law. Parties were not permitted to cite unpublished cases as authority for legal propositions, with minor exceptions.
As computer assisted research became available, lawyers were finding cases online that they could not use because they were designated as "unpublished." This created some dissatisfaction by lawyers and judges. The appellate courts eventually abandoned the practice of designating cases as unpublished.
The applicable federal rule provides:
(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and
(ii) issued on or after January 1, 2007.
Fed. R. App. P. 32.1
Many state appellate courts, including the Arkansas Supreme Court, enacted similar rules. The Arkansas rule now reads:
(c) Precedential Value. Every Supreme Court and Court of Appeals opinion issued after July 1, 2009, is precedent and may be relied upon and cited by any party in any proceeding. Opinions of the Supreme Court and Court of Appeals issued before July 1, 2009, and not designated for publication shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case).
Ark. Sup. Ct. R. 5-2.
All Arkansas cases are now "published," under the rules. They are available on the Court's website as soon as they are released.
West's Publishing Company, a private company, was once the only reliable source for caselaw throughout the nation. Many states, including Arkansas, published their own cases in official reporters. Other states abandoned official reporters in favor of allowing West's to serve the purpose of publishing caselaw. West's had a valuable monopoly. That monopoly disappeared with electronic publication and waned further with the Internet. Caselaw is now available for free on numerous sources. See e.g. scholar.google.com. It is also available to lawyers on relatively inexpensive sources such as Fastcase or Casemaker. Those services are often offered to members of the bar as benefits of membership.
The West's headnotes used to be the only way to find relevant cases. Word searches have replaced headnotes. West's still has the exclusive right to its headnotes, and many lawyers still feel that the headnotes are the best and fastest way to find relevant cases. Those sources are available on Westlaw, West's electronic research service. West's has also remained valuable to lawyers by publishing numerous treatises, guides to the law, legal encyclopedias, formbooks, and other materials written by specialists.
However, West's has also elected to take over the function of the Courts in selecting cases for publication. West's often chooses not to publish certain Arkansas cases in the Southwestern Reporter. When you find those cases on Westlaw, they are accompanied with a notice:
NOTICE: THIS DECISION WILL NOT APPEAR IN THE SOUTHWESTERN REPORTER. SEE REVISED SUPREME COURT RULE 5-2 FOR THE PRECEDENTIAL VALUE OF OPINIONS.
The notice is somewhat misleading, of course, as it hints that the precedential value of cases it chooses not to publish is somewhat less than that of the cases they choose.
With that explanation of the shifting meaning of "reported' cases, a complete list of Gerry's "reported" cases is found below:
Barner v. Thompson-Center, LLC, 796 F.3d 897 (8th Cir. 2015)
Obigbo v. Ark. State Bd. Of Nursing, 2014 Ark. App. 675
Sims v. Dir., 2014 Ark. App. 512
Hunt v. Walker, 2014 Ark. App. 500
Brantley v. N. W. Ark. Hospitals, LLC, 2014 Ark.App. 275, 435 S.W.3d 1
Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637
Berryhill v. Synatzske, 2013 Ark. App. 483
Witham v. Beck, 2013 Ark.App.351, 428 S.W.3d 537
Sims v. Director, 2013 Ark. App. 241
Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876
Cannady v. St. Vincent Infirmary Med. Ctr, 2012 Ark. 359, 423 S.W.3d 548
Bismarck Sch. Dist v. Sims, 2012 Ark. App. 239, 406 S.W.3d 805
Broussard v. St. Edward Mercy Health Svs., Inc, 2012 Ark. 14, 386 S.W.2d 385
Smith v. Rebsamen Med. Ctr, Inc., 2011 Ark. App 722, 387 S.W.3d 193
Nat'l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 384 S.W.3d 754
Nat'l Bank of Ark v. River Crossing Partners, LLC, 2010 Ark. App. 841
Kennedy Funding, Inc. v. Shelton, 2010 Ark. App. 438, 386 S.W.3d 1
Shelton v. Kennedy Funding, Inc., 622 F.3d 943 (8th Cir. 2010)
Erwin v. Erwin, 2010 Ark.App. 586
Garcia v. Estate of Duval, 375 Ark. 520, 293 S.W.3d 389 (2009)
Hicks v. Cook, 103 Ark.App. 207, 288 S.W.3d 244 (2008)
DeJulius v. Sumner, 373 Ark. 156, 282 S.W.3d 753 (2008)
One Nat. Bank v. Pope, 272 S.W.3d 98, 372 Ark. 208 (Ark., 2008)
Aon Risk Services, Inc. v. Meadors, 100 Ark.App. 272, 267 S.W.3d 603 ( 2007)
McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007)
Midgett v. Washington Group International Long Term Disability Plan, 561 F.3d 887 (8th Cir. 2009)
House v. Volunteer Transp., Inc., 223 S.W.3d 798, 2006 Ark. LEXIS 26 (2006)
Volunteer Transp., Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004)
Warnock v. Archer, 397 F.3d 1024 (8th Cir., 2005)
Warnock v. Archer, 380 F.3d 1076 (8th Cir., 2004)
Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (2005)
Campbell v. Entergy Ark., Inc., 363 Ark. 132, 211 S.W.3d 500 (2005)
Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005)
Boudreaux v. Mauterstock, 88 Ark. App. 389, 199 S.W.3d 120 (2004)
Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004)
Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004)
Saine v. Comcast Cablevision of Arkansas, 354 Ark. 492; 126 S.W.3d 339 (2003)
Hartley v. Dillard's Inc, 310 F.3d 1054 (2002)
Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837 (8th Cir. 2001)
Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 34 Fed.R.Serv.3d 541 (8th Cir. 1996)
Atteberry v. Maumelle Co., 60 F.3d 415 (8th Cir.1995)
Neely v. Shalala, 997 F.2d 437, (8th Cir. 1993)
Krementz v. Raby, 959 F.2d 695, (8th Cir. 1992)
Robertson v. Union Pacific R. Co., 954 F.2d 1433 (8th Cir. 1992)
Turner v. Bowen, 862 F.2d 708, (8th Cir. 1988)
Hill v. State Farm Mut. Auto. Ins. Co., 56 Ark.App. 67, 937 S.W.2d 684 (1997)
Randolph v. ER Arkansas, P.A., 325 Ark. 373, 925 S.W.2d 160 (1996)
Hubley v. Best Western-Governor's Inn, 52 Ark.App. 226, 916 S.W.2d 143 (1996)
First Commercial Trust Co. v. Rank, 323 Ark. 390, (1996)
Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269, 64 USLW 2474 (1996)
Almond v. Cigna Property and Cas. Ins. Co., 322 Ark. 268, 908 S.W.2d 93 (1995)
Lewis v. Gubanski, 50 Ark.App. 255, 905 S.W.2d 847 (1995)
Dodds v. Hanover Ins. Co., 317 Ark. 563, 880 S.W.2d 311 (1994)
Jacuzzi Bros., Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994)
Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994)
Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993)
Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993)
Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993)
Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993)
Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993)
Allen v. Burton, 311 Ark. 253, 843 S.W.2d 821 (1992)
Daniels v. Riley's Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992)
Berry v. Chapple, 309 Ark. 612, 832 S.W.2d 256 (1992)
Dachenhaus v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992)
Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594, 73 Ed. Law Rep. 865 (1992)
Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992)
Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992)
Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991)
Matter of Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991)
Gary Eubanks and Associates v. Black and White Cab Co., 34 Ark.App. 235, 808 S.W.2d 796 (1991)
Neal v. J.B. Hunt Transport, Inc., 305 Ark. 97, 805 S.W.2d 643 (1991)
Baker v. State Farm Fire and Cas. Co., 34 Ark. App. 59, 805 S.W.2d 665 (1991)
Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991)
Scoggins v. Southern Farmers' Ass'n, 304 Ark. 426, 803 S.W.2d 515 (1991)
Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990)
J.M. Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989)
Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989)
Silvey v. Brents, 297 Ark. 322, 761 S.W.2d 605 (1988)
Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987)
Smith v. Carrier Air Conditioning, 21 Ark. App. 162, 730 S.W.2d 509 (1987)
Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987)
Yancey v. Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987)
Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986)
Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986)
Bartels v. Waire, 289 Ark. 362, 712 S.W.2d 285 (1986)
Guffey v. Arkansas Secretary of State, 18 Ark.App. 54, 710 S.W.2d 836 (1986)
Carnathan v. Farm Bureau Ins. Co., 288 Ark. 399, 705 S.W.2d 885 (1986)
Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741, Prod.Liab.Rep. (CCH) P 10,894 (1985)
Stephens v. St. Vincent Infirmary, 15 Ark. App. 209, 691 S.W.2d 190 (1985)
Bragg v. Evans-St. Clair, Inc., 15 Ark.App. 53, 688 S.W.2d 956 (1985)
Gathright v. Lincoln Ins. Co., 286 Ark. 16, 688 S.W.2d 931, 25 Ed. Law Rep. 680 (1985)
Roc-Arc Water Co. v. Moore, 10 Ark.App. 349, 664 S.W.2d 500 (1984) your paragraph here.