{ "id": 1445748, "name": "Edward Eugene WHITNEY, et al. v. HOLLAND RETIREMENT CENTER, INC.", "name_abbreviation": "Whitney v. Holland Retirement Center, Inc.", "decision_date": "1996-01-08", "docket_number": "94-1232", "first_page": "16", "last_page": "22", "citations": [ { "type": "official", "cite": "323 Ark. 16" }, { "type": "parallel", "cite": "912 S.W.2d 427" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "311 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897000 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0163-01" ] }, { "cite": "320 Ark. 615", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451247 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0615-01" ] }, { "cite": "319 Ark. 662", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453580 ], "weight": 6, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0662-01" ] }, { "cite": "778 S.W.2d 526", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10007456, 1455706 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/sw2d/778/0526-01", "/ark/318/0750-01" ] }, { "cite": "318 Ark. 750", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455706 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0750-01" ] }, { "cite": "295 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893727 ], "weight": 4, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0260-01" ] }, { "cite": "300 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886847 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0474-01" ] }, { "cite": "320 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451138 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0088-01" ] }, { "cite": "59 Fed. Reg. 6564", "category": "reporters:federal", "reporter": "Fed. Reg.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 611, "char_count": 11210, "ocr_confidence": 0.859, "pagerank": { "raw": 2.4387957835291367e-07, "percentile": 0.8028410150553179 }, "sha256": "329b3bbca59285792a2301b98f50221c49b0b6a00f08b98072bb709baf1e8ae5", "simhash": "1:99ef7e6413c8b8fc", "word_count": 1813 }, "last_updated": "2023-07-14T22:17:29.924838+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edward Eugene WHITNEY, et al. v. HOLLAND RETIREMENT CENTER, INC." ], "opinions": [ { "text": "Tom Glaze, Justice.\nLeo Whitney, eighty-one years old, had been a patient at the Veterans Administration Hospital in Fayetteville, but afterwards was discharged and transported directly to the appellee Holland Retirement Center. During his stay at Holland, Leo left the premises sometime between 10:30 p.m. and 6:00 a.m., was unable to reenter the building because of locked doors, and died of hypothermia as a result of exposure to sub-freezing temperatures. Leo\u2019s estate and certain family members brought suit against Holland, alleging Holland negligently (1) failed to instruct Leo on how to reenter the building, (2) admitted Leo without obtaining his medical records, and (3) failed to make itself aware of Leo\u2019s special medical needs or problems. At a jury trial, Holland was found twenty-four percent negligent in causing Leo\u2019s death and Leo was found nine percent at fault; the jury awarded the estate zero dollars, but it awarded Robert and Edward Whitney $3,000 and $2,500.\nThe Whitney estate moved for a new trial, alleging the jury erred in failing to award the estate any damages. The estate further argued the trial court erred during trial when it allowed David L. Moore\u2019s deposition read into evidence. Moore is a clinical social worker at the VA Hospital, and he had referred Leo and family to Holland as an appropriate care facility for Leo. After the trial court denied the estate\u2019s motion, the estate brings this appeal.\nWe first consider the estate\u2019s argument that the trial court erroneously admitted Moore\u2019s pretrial deposition into evidence. The events that led to this trial issue were as follows. Moore\u2019s name had been on Holland\u2019s witness list, but Moore did not appear when the trial commenced. Because of Moore\u2019s failure to appear, Holland issued a subpoena directing Moore to appear in court to testify the next day. Moore again failed to appear. Holland explained to the trial court that VA regulations, entitled \u201cTestimony of Department [of Veteran Affairs] Personnel and Production of Department Records in Legal Proceedings,\u201d 59 Fed. Reg. 6564-6570 (1994), made it impossible for Holland to produce Moore as a live witness. During a recess, and with trial counsel present, the trial court telephoned the VA District General Counsel\u2019s office, which informed the court that, if Moore appeared and testified at trial, Moore would violate the VA regulations. VA\u2019s counsel informed the trial court that he had directed Moore not to obey the court\u2019s subpoena.\nWhen Holland asked that Moore\u2019s deposition be read into evidence because of Moore\u2019s unavailability, the estate objected, stating Holland should have subpoenaed Moore earlier. The estate also argued that, when Moore\u2019s deposition was taken fourteen months prior to trial, the deposition was considered one of discovery and not for evidentiary purposes. The estate claimed that, if the deposition was admitted, it would be prevented proper and effective cross-examination of Moore.\nCiting Ark. R. Civ. P. 32(a)(3)(D) and (E), the trial court allowed Holland to introduce Moore\u2019s deposition into evidence. In sum, the trial court ruled Holland could use Moore\u2019s deposition because Holland had been unable to procure Moore\u2019s appearance. It also found that such exceptional circumstances existed as to make it desirable, in the interest of justice and with due regard to the importance of presenting Moore\u2019s testimony in open court, to allow his deposition to be used. We hold the trial court ruled correctly.\nWe initially point out that, although not argued below, the estate now contends the VA regulations involved here do not prohibit a VA employee, like Moore, from testifying at a court proceeding, but instead only establish the procedure to follow when VA personnel are requested to provide testimony or to produce documents. The estate argues that Holland\u2019s failure to follow the VA regulations in seeking Moore\u2019s court appearance did not amount to an exceptional circumstance under Rule 32(a)(3)(E). We are unable to consider this specific argument since it was not presented to the trial court below. It is well settled that, if the grounds for an objection are changed on appeal, the argument is considered raised for the first time on appeal and the argument is waived. Cortinez v. Brighton, 320 Ark. 88, 894 S.W.2d 919 (1995).\nThe estate argued below, and argues now on appeal, that an implied agreement existed between the parties that Moore\u2019s deposition was only for discovery purposes. The estate\u2019s counsel claims this implied agreement was borne out by Holland never indicating until trial that Moore would not be called as a live witness. The estate relies upon Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), which in relevant part related the following:\nIn Shelter Mutual Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), we note that ARCP Rule 32 outlines the use of depositions; it does not distinguish between discovery depositions and evidentiary depositions. Yet, we know that members of the bar commonly describe depositions as being either discovery or evidentiary. Here, the parties and the court obviously thought that they were dealing with \u201cdiscovery\u201d depositions, and accordingly, there was an implied agreement that they were not evidentiary depositions and could not be used as evidence at the trial. Thus, appellant waived the literal wording of ARCP Rule 32.\nIn Goodwin, the parties\u2019 and the trial court\u2019s understanding before trial was that plaintiff\u2019s counsel would not use a doctor\u2019s discovery deposition as an evidentiary deposition. In view of this agreement and understanding, this court held the plaintiff had waived Rule 32 and therefore could not introduce the doctor\u2019s deposition at trial. Here, we note that, unlike in Goodwin, the party seeking introduction of the witness\u2019s deposition did attempt to subpoena the witness. In fact, the record reflects the witness, Moore, had received the subpoena, and except for VA regulations, would have appeared in court pursuant to the subpoena. Also unlike in Goodwin, the record here reveals the parties never limited the use of Moore\u2019s deposition, nor did the trial court elicit from counsel that Moore\u2019s deposition would not be utilized at trial. The trial court went to considerable trouble in determining whether Moore was available and in deciding whether exceptional circumstances existed warranting the admission of Moore\u2019s deposition. We conclude that the trial court did not abuse its discretion in ruling as it did. See Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 778 S.W.2d 526 (1994).\nBefore leaving this issue, we take this opportunity to reiterate that Rule 32 does not distinguish between discovery and evidentiary depositions. Rule 32 is essentially the same as Fed. R. Civ. P. 32, which has been construed to point out that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). See Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988).\nThe estate\u2019s second point of reversal is its claim that the jury erred in failing to award it any damages. The decedent\u2019s daughter-in-law, Virginia Whitney, was the only witness testifying to the funeral expenses and costs incurred in handling the estate, and she testified that $4,000 was expended for Leo\u2019s funeral and $4,000 to $5,000 was spent \u201cto keep up\u201d Leo\u2019s property. Virginia\u2019s husband, Robert, had been the initial representative of the estate but after he died, Edward was appointed the estate\u2019s representative. As mentioned previously, the jury awarded Robert $3,000, Edward $2,500, and the estate nothing.\nFirst, we find the abstract is not clear as to what expenses, if any, the estate actually incurred in this case. While it is true that the jury assigned some negligence on Holland\u2019s part in Leo\u2019s death, the only testimony abstracted concerning damages or expenses is that of Virginia Whitney, as mentioned above. When the estate\u2019s counsel stated that he wished to elicit Virginia\u2019s testimony to prove Leo\u2019s funeral expenses and costs in maintaining Leo\u2019s property, Holland objected, stating maintenance costs were not \u201can item of damage in this case.\u201d The trial court allowed Virginia\u2019s testimony, but stated it believed probate court was the proper venue for reimbursement of maintenance costs. In allowing Virginia\u2019s testimony, the trial court said that it would later consider the jury instructions and the appropriate elements of damages. Those instructions, however, are not abstracted and the only testimony given by Virginia is, \u201cWe incurred expenses in the amount of $4,000 for the funeral bill\u201d and \u201c$4,000 to $5,000 for keeping up the property.\u201d Virginia\u2019s testimony reflects she and other family members paid $8,000 to $9,000 for funeral and maintenance expenses, but nothing in her testimony reflects what the estate was due. As stated above, Robert and Edward received a total of $5,500.\nGenerally, where the primary issue on appeal is the alleged inadequacy of the jury\u2019s award, the appellate court will sustain the trial court\u2019s denial of a motion for new trial unless there is a clear abuse of discretion. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995). A jury has the right to believe or disbelieve all or any part of the testimony at trial and is in a superior position to judge the credibility of the witnesses. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). This is true even when the testimony is uncontradicted. See Garrett, 319 Ark. 662, 893 S.W.2d 784; Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992).\nBased upon the record before us, we cannot discern what the jury considered when awarding nothing to the estate. Concerning Leo\u2019s funeral expenses and property maintenance costs, perhaps the jury found Robert and Edward had paid them and only they, and not the estate, should have received reimbursement. While other possibilities come to mind, it is sufficient to say that this court has held that it will not engage in speculation on how jury verdicts are reached. Garrett, 319 Ark. 662, 893 S.W.2d 784.\nBecause we find no reversible error, we affirm.\nThe estate in this appeal does not question the jury\u2019s assignment of negligence in the amount of thirty-three percent and its failure to account for the remaining sixty-seven percent.\nA Phyllis Whitney Avalos was separately denied any damages or award.\nWhile there were fourteen witnesses, the estate abstracted only Moore\u2019s and Virginia Whitney\u2019s testimonies. We also note that the estate limits its argument to the funeral and maintenance damages discussed in this opinion and never refers to other elements of damages.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Michael W. Hawkins and Denny Hyslip, for appellants.", "Zurborg & Spaulding, by: Brian L. Spaulding, for separate appellant Phyllis Whitney Avalos.", "Arnold, Grobmyer & Haley, by: Jacob Sharp, Jr., and David H. Pennington, for appellee." ], "corrections": "", "head_matter": "Edward Eugene WHITNEY, et al. v. HOLLAND RETIREMENT CENTER, INC.\n94-1232\n912 S.W.2d 427\nSupreme Court of Arkansas\nOpinion delivered January 8, 1996\nMichael W. Hawkins and Denny Hyslip, for appellants.\nZurborg & Spaulding, by: Brian L. Spaulding, for separate appellant Phyllis Whitney Avalos.\nArnold, Grobmyer & Haley, by: Jacob Sharp, Jr., and David H. Pennington, for appellee." }, "file_name": "0016-01", "first_page_order": 42, "last_page_order": 48 }