{
  "id": 6139283,
  "name": "William BENTON v. Bin BARNETT",
  "name_abbreviation": "Benton v. Barnett",
  "decision_date": "1996-04-24",
  "docket_number": "CA 95-480",
  "first_page": "146",
  "last_page": "149",
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      "cite": "53 Ark. App. 146"
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      "cite": "920 S.W.2d 30"
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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      "reporter": "Ark.",
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      "reporter": "Ark.",
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      "year": 1987,
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      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "weight": 2,
      "year": 1986,
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    {
      "cite": "318 Ark. 309",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1455802
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      "weight": 3,
      "year": 1994,
      "opinion_index": 0,
      "case_paths": [
        "/ark/318/0309-01"
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    {
      "cite": "307 Ark. 134",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1902444
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      "weight": 2,
      "year": 1991,
      "opinion_index": 0,
      "case_paths": [
        "/ark/307/0134-01"
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  "last_updated": "2023-07-14T22:00:24.662479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Jennings, C.J., and Neal, J., agree."
    ],
    "parties": [
      "William BENTON v. Bin BARNETT"
    ],
    "opinions": [
      {
        "text": "JUDITH Rogers, Judge.\nThe appellant, William Benton, appeals from a $5,000 judgment in favor of appellee, Bill Barnett, which was entered upon a jury\u2019s verdict. For reversal, appellant contends that the trial court erred in denying his motion for a new trial. We affirm.\nAppellant filed a complaint in battery against appellee for injuries he had sustained, alleging that appellee had attacked and beaten him without provocation during an altercation at a service station. Appellee answered and filed a counterclaim against appellant, contending that the allegations in appellant\u2019s complaint were knowingly false and that the suit was brought for purposes of \u201charassing, annoying, alarming, vexing, and causing financial loss\u201d to him. Based on this claim, appellee sought \u201cjudgment over\u201d against appellant, Rule 11 sanctions, punitive damages, costs and attorney\u2019s fees.\nThe case proceeded to trial. In summary, appellant testified that he and appellee exchanged words and that appellee hit him as many as five times, knocking him backwards into a drink machine and causing his nose and face to bleed. Appellee, who was not injured in the fray, admitted hitting appellant but said that he did so only after appellant had attempted the first blow. The jury returned a verdict for appellee in the amount of $5,000.\nAppellant filed a motion for a new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure. In this motion, appellant contended that appellee \u201cpresented no evidence at trial of any damages he suffered\u201d and that the award of \u201cdamages assessed by the jury ... was in error and clearly contrary to a preponderance of the evidence.\u201d The trial court denied the motion, stating in its order that there had been \u201ctestimony and certainly argument concerning the employment of counsel to defend this lawsuit.\u201d This appeal followed.\nFor reversal, appellant contends that appellee presented no evidence of damages in support of his claim. He further argues that appellee\u2019s counterclaim did not state a cause of action in tort. He maintains that the jury\u2019s verdict was essentially an award of attorney\u2019s fees and argues that attorney\u2019s fees are not a proper element of damages, since attorney\u2019s fees are not allowed unless expressly authorized by statute. See Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). In support of his arguments, appellant alludes to the testimony of appellee when he was asked by his own attorney what damages he was seeking, to which appellee replied, \u201cWell, basically it\u2019s cost me quite a bit of money to put up with this for four years and finally come to this conclusion.\u201d Appellant also points to argument made in closing by appellee\u2019s counsel asking the jury to award appellee $5,000 for his attorney\u2019s fees \u201cto send a message to\u201d the appellant. In defense of the trial court\u2019s decision, appellee contends that appellant\u2019s arguments were not properly preserved for appeal. We agree.\nIt is obvious from a reading of appellant\u2019s motion for a new trial and his supporting brief that it was, and remains, appellant\u2019s contention that there was no evidence presented by appellee to justify the submission of the case to the jury. Appellant, however, failed to challenge the sufficiency of the evidence by motion for a directed verdict, as is required under Rule 50(e) of the Rules of Civil Procedure. Instead, he raised the issue by motion for a new trial under Rule 59. Although Rule 59 specifically states that a motion for a new trial may be granted where the verdict is clearly contrary to the preponderance of the evidence, Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), such a motion, however, does not test the sufficiency of the evidence to go to the jury. Id. See also Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). A party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for a new trial. Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). Therefore, appellant\u2019s challenge, to the sufficiency of the evidence must fail. We recognize that this distinction is a fine one indeed, but it is one that has been fashioned by the supreme court.\nWith regard to appellant\u2019s remaining arguments concerning the sufficiency of appellee\u2019s counterclaim and the verdict being tantamount to an award of attorney\u2019s fees, these matters were not included in his motion for a new trial. Moreover, at no time before trial did appellant complain by appropriate motion about any deficiencies with respect to appellee\u2019s complaint for damages. Neither did he raise any objection to the testimony offered by appellee relative to his claim, nor did he object to the argument of appellee\u2019s counsel. Likewise, appellant raised no objection to the jury being offered a verdict form allowing it to assess damages in appellee\u2019s favor. It is a well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). Since appellant did not raise these issues in his motion for a new trial, we will not address them. It remains to be seen whether it would have been appropriate for appellant to have asserted these matters in a motion for a new trial, in the absence of any prior objection. See Stacks v. Jones, supra., Newbern, J., concurring.\nAffirmed.\nJennings, C.J., and Neal, J., agree.",
        "type": "majority",
        "author": "JUDITH Rogers, Judge."
      }
    ],
    "attorneys": [
      "Larry Dean Kissee and Tom Garner, for appellant.",
      "Wilber Law Firm, FA., by: Norman C. Wilber, for appellee."
    ],
    "corrections": "",
    "head_matter": "William BENTON v. Bin BARNETT\nCA 95-480\n920 S.W.2d 30\nCourt of Appeals of Arkansas Division III\nOpinion delivered April 24, 1996\nLarry Dean Kissee and Tom Garner, for appellant.\nWilber Law Firm, FA., by: Norman C. Wilber, for appellee."
  },
  "file_name": "0146-01",
  "first_page_order": 164,
  "last_page_order": 167
}