{ "id": 1884241, "name": "C.J. SHAMLIN v. Linda SHUFFIELD and Leon Garot", "name_abbreviation": "Shamlin v. Shuffield", "decision_date": "1990-04-23", "docket_number": "90-34", "first_page": "164", "last_page": "168", "citations": [ { "type": "official", "cite": "302 Ark. 164" }, { "type": "parallel", "cite": "787 S.W.2d 687" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 18-60-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "206 Ark. 930", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485067 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/206/0930-01" ] }, { "cite": "296 Ark. 339", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892788 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0339-01" ] }, { "cite": "301 Ark. 14", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885505 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/301/0014-01" ] }, { "cite": "266 Ark. 544", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720673 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0544-01" ] }, { "cite": "289 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875357 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0281-01" ] }, { "cite": "245 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606804 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0518-01" ] }, { "cite": "295 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893788 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0072-01" ] } ], "analysis": { "cardinality": 448, "char_count": 6550, "ocr_confidence": 0.894, "pagerank": { "raw": 2.796059336564568e-07, "percentile": 0.8364026242456607 }, "sha256": "b72f76eff325b21ec781df70f2cd8414f82fae409ffeab6bd4e5e1c16ac7f21b", "simhash": "1:b5bd15d5da8e6dfe", "word_count": 1116 }, "last_updated": "2023-07-14T14:34:09.444418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C.J. SHAMLIN v. Linda SHUFFIELD and Leon Garot" ], "opinions": [ { "text": "Dale Price, Justice.\nThe appellee, Linda Shuffield, is the owner of 10 acres of land on Peters Road in Northern Pulaski County. She filed a complaint against the appellant, C. J. Shamlin, alleging that he had impermissibly entered her land, cut timber, and damaged her property. Shamlin answered with a general denial, then filed a third-party complaint against the appellee, Leon Garot. Garot was the owner of certain land adjacent to Miss Shuffield\u2019s. In his complaint, Shamlin claimed he had contracted with Garot to cut timber from Garot\u2019s property and in fact did enter the property and cut trees. He asked that he be given judgment over against Garot if it was determined that the trees did not belong to Garot.\nThe case was tried to the judge and Miss Shuffield was awarded $9,986 in actual damages, which were trebled to $29,958. The appellant argues six points for reversal, all of which we find meritless.\nTwo issues concern evidentiary matters. First, the appellant claims that part of Miss Shuffield\u2019s testimony was hearsay. Miss Shuffield was asked what action she took once she discovered her property had been damaged. She then testified:\nMiss Shuffield: I knew I had to find out who did it so I just started doing some investigative work. Found out from Mrs. King . . .\n(appellant\u2019s attorney objects)\nAppellees\u2019 counsel: Without telling us what anyone else said, tell us what you did.\nMiss Shuffield: I did some investigative work, talked to some people and found out the . . .\n(appellant\u2019s attorney objects)\nIt is clear that Miss Shuffield stopped short of testifying as to what someone else told her. Since no objectionable matter was placed into evidence, there was no error. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).\nThe appellant contends next that the court violated the \u201cbest evidence\u201d rule, A.R.E. Rule 1002, by allowing Miss Shuffield to testify as to what she heard the appellant say during his deposition:\nCounsel: I think you were present in the conference room when [the appellant\u2019s] deposition was given, weren\u2019t you?\nMiss Shuffield: Right, but we did not speak.\nCounsel: Did you hear him admit at that time that he did cut the timber off your property?\nMiss Shuffield: [W]e were sitting there talking about the same piece of property and he was talking about certain trees and he called it a slough off a property, and that\u2019s not what it was. But I understood him to say, yes, he did.\nIt is not at all clear that Miss Shuffield was attempting to prove what the appellant said in his deposition. It appears she may have been merely relating a statement the appellant made in conversation. If that is the case, Rule 1002 was not violated since there was no attempt to prove the content of a writing or recording. Second, even if the rule was violated, the appellant was not prejudiced. He himself testified later in the trial that he had cut some timber on property on Peters Road and didn\u2019t actually know whose property he was cutting on. An evidentiary error is harmless if the same or similar evidence is otherwise introduced at the trial. Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968).\nThe next allegation of error is the court\u2019s failure to dismiss the case at the close of the plaintiff\u2019s evidence. See ARCP Rule 50(a). The appellant argues that the plaintiff did not make a prima facie case because, although she proved that someone had entered her land, cut timber, and damaged her property, she offered no evidence that the appellant was the guilty party.\nThe case against the appellant was largely circumstantial. The only testimony connecting him to the timber cutting was the testimony of Leon Garot. Mr. Garot testified that in September of 1987 and again shortly thereafter, he was telephoned by the appellant, who was seeking to cut timber. No permission was given for any cutting. When Miss Shuffield visited her adjacent land in late 1987, she found that her trees had been cut.\nThe appellant cannot prevail on this issue. After his motion to dismiss was denied, the appellant went forward with his proof. His own testimony revealed that he was the one who cut the timber in question, even though he did not know for certain to whom the property belonged. If, after the denial of a request for a directed verdict, or in this case, a dismissal, a defendant introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain a verdict, he waives his claim of error by the court in refusing to direct a verdict, or dismiss, at the close of the plaintiff\u2019s case. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Kansas City Southern Industries, Inc. v. Stewman, 266 Ark. 544, 587 S.W.2d 12 (1979).\nThe remaining issues concern the trial court\u2019s assessment of damages. The appellant claims the trial court erred in assessing treble damages against him when it was not shown that he acted intentionally or maliciously in cutting the timber. He also claims that Miss Shuffield owned only an undivided one-half interest in the land (she had bought out her former co-owner) and therefore should not have received the total amount of damages. Neither of these arguments was made below. We have said many times that we will not consider an argument made for the first time on appeal. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989).\nWe now consider appellant\u2019s other arguments concerning damages. First, he claims it was not proper to award Miss Shuffield damages to restore her property to its former condition. Of the $9,986 in actual damages awarded, $8,000 was to pay for the restoration of the land, including removal of stumps and debris, and soil repair. We have said that this is a recoverable element of damages for temporary damage done to property. See Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988); Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).\nSecond, the appellant claims the entire damage award should not have been trebled, but only that portion representing damage to the trees ($1,986). See Ark. Code Ann. \u00a7 18-60-102(a) (1987). In Arnold v. Lee, supra, we held that an award of damages, which included restoration costs, was properly trebled under the statute.\nWe find no error in the court\u2019s findings on either liability or damages.\nAffirmed.", "type": "majority", "author": "Dale Price, Justice." } ], "attorneys": [ "Josh E. McHughes, for appellant.", "Huckaby, Munson, Rowlett, and Tilley, P.A., by: Beverly A. Rowlett, for appellee." ], "corrections": "", "head_matter": "C.J. SHAMLIN v. Linda SHUFFIELD and Leon Garot\n90-34\n787 S.W.2d 687\nSupreme Court of Arkansas\nOpinion delivered April 23, 1990\nJosh E. McHughes, for appellant.\nHuckaby, Munson, Rowlett, and Tilley, P.A., by: Beverly A. Rowlett, for appellee." }, "file_name": "0164-01", "first_page_order": 190, "last_page_order": 194 }