Cite as 2017 Ark. App. 129

                   ARKANSAS COURT OF APPEALS
                                         DIVISION III
                                        No. CV-15-1033


                                                  Opinion Delivered   March 1, 2017

JOHNNY WARREN                                     APPEAL FROM THE PULASKI
                                 APPELLANT        COUNTY CIRCUIT COURT,
                                                  TWELFTH DIVISION
V.                                                [NO. 60CV-12-2596]

ANTHONY FRIZELL                                   HONORABLE ALICE S. GRAY,
                                APPELLEE          JUDGE


                                                  AFFIRMED



                             WAYMOND M. BROWN, Judge


        Appellant Johnny Warren sued appellee Anthony Frizell1 for negligence after Frizell

rear-ended Warren in an automobile accident on July 13, 2009. Warren sought damages for

medical expenses, pain and suffering, lost wages, gas mileage, costs, other damages, and

attorney’s fees.2 A jury trial took place on January 7, 2015, and Frizell admitted liability. At

the conclusion of the trial, the jury returned a verdict in Frizell’s favor. A judgment based on

the jury’s verdict was filed on July 15, 2015, dismissing Warren’s complaint with prejudice.

Warren filed a motion for a judgment notwithstanding the verdict (JNOV) and for a new trial

on July 21, 2015. The court never acted on the motion, and it was deemed denied after

       1
        Appellee’s last name has been spelled Frizell and Frizzell; however, unless using a
direct quotation, we will refer to appellee as Frizell.
       2
           Warren did not include a claim for property damage to his truck in his complaint.
                                   Cite as 2017 Ark. App. 129

thirty days. Warren filed a timely notice of appeal on September 17, 2015. On appeal,

Warren argues that (1) the trial court erred when it did not enter a judgment in favor of

Warren for his medical expenses and (2) the trial court erred by denying Warren’s motion for

a new trial. Frizell cross-appeals, arguing that the trial court erred in finding that Frizell was

not contesting that Warren’s medical treatment was reasonable and necessary and that Warren

needed to be off work.3 We affirm.4

       Warren testified that he was self-employed as the owner of Power Plus Pressure

Washing at the time of the accident. He stated that at that time, he had a contract with Pepsi

to wash their trucks throughout the state and that he was making approximately $60,000 a

year. He said that the accident took place on Broadway Avenue as he was going to the gym.

He stated that he had to “catch” himself when he was rear-ended because he was going

forward all of a sudden. He said that he braced himself with the steering wheel in order to

prevent his head from hitting it or the windshield. He stated that following the accident, they

pulled onto Plum Street. He testified that he was driving a 1988 Fleetwood Brougham and

that Frizell was driving a “big Sierra” with a guardrail. Warren stated that following the

accident, the brake lights did not work, the gas hand was out, the taillight assembly was bent

and a filler piece between the taillight and the car was busted, and the bumper guards were

knocked off of the bumper. Additionally, he stated that the shocks underneath the bumper


       3
       Frizell notes that this cross-appeal is filed in an abundance of caution in the event this
court decides to order remand on direct appeal.
       4
       This is the second time this case has been before us. We initially ordered rebriefing
due to deficiencies in appellant’s argument. Warren v. Frizell, 2016 Ark. App. 490.

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were busted, causing oil to leak from them. He said that he was able to drive his vehicle

home, and that after the accident, he decided not to go to the gym.

       Warren testified that the less he moved, the more pain he was in. He stated that he

could barely sleep that night due to pain in his lower back and that he decided to go to the

emergency room at Springhill Baptist the next morning. He said that x-rays were taken of

his back and that he received a prescription for pain medication. He was also told to follow-

up with his primary care physician. He stated that he did not have a physician at the time.

He said that he took the medicine but realized that it was not helping his pain. He testified

that he finally decided to go see Dr. William Rutledge. Warren said that he presented to Dr.

Rutledge on July 20, 2009, with neck and back pain. He stated that Dr. Rutledge prescribed

pain medication and physical therapy. He said that he was taken off of work for over two

months, from July 20, 2009, to September 29, 2009. He stated that he went to physical

therapy about three months. He testified that he was seeking reimbursement for his medical

expenses. He also asked to be compensated $10,000 for lost wages.

       On cross-examination, Warren stated that his taxable income for 2008 was $17,699

and that his taxable income for 2009 was $19,039. He denied ever injuring his back or neck

prior to the accident. He stated that he currently had no problems from his injuries and

denied pretending to be hurt after the accident.5




       5
           Appellee unsuccessfully moved for a directed verdict following appellant’s testimony.


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       Frizell testified that he was driving a 2008 Sierra GMC with a guardrail at the time of

the accident. He stated that he noticed appellant’s vehicle in front of him going at a “very

slow speed.” He opined that he was going no faster than fifteen (15) mph, when “all of a

sudden, [appellant] stopped.” He stated that he swerved to the left and “nicked” appellant.

He described the accident as a minor bump that did not involve the truck’s guardrail. He said

that he noticed a “little nick” on appellant’s left bumper at the top of the taillight and that his

truck had a small black scratch on it. He stated that when appellant got out of his vehicle, he

was “bouncing around.” Frizell stated that appellant called the police and that they went to

Plum Street to give statements concerning the accident. He testified that Warren did not

complain about being injured at the scene of the accident.

       On cross-examination, Frizell stated in pertinent part:

       I am not a doctor. I’m not a nurse. I have no medical training in terms of being able
       to diagnose people. I’m not telling the jury that I know better than Dr. Jones at the
       emergency room. I would never do that. I was not there. I trust her opinion over
       mine. It was my first appearance that he was not hurt.

       I’m not telling the ladies and gentlemen of the jury that it was unreasonable for the
       doctor to order an x-ray.

       And when she prescribed medicine for him, the Flexeril and the Loratab, I’m not
       suggesting to the ladies and gentlemen of the jury that that wasn’t something that was
       necessary.

       I don’t know Dr. William Rutledge. When he saw him, and he prescribed him
       physical therapy because he saw muscle spasms and things of that nature, I’m not
       telling the ladies and gentlemen of the jury that there weren’t any muscle spasms or
       anything of that nature.

       I’m not suggesting that somehow another that when he prescribed the physical
       therapy, that that was something that was inappropriate.


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       I’m not saying that it was inappropriate for a doctor of his trained opinion as a doctor,
       a medical doctor to take him off work. I don’t think that was wrong. His opinion is
       superior to all. I mean he’s the doctor. Yes. It was appropriate for Dr. Rutledge, in
       his expert opinion, to have Mr. Warren to be off for the period of time that he asked.
       On redirect, Frizell stated that he was not injured in the accident and that his body did
       not “move about” his truck in the accident.

       Both Warren and Frizell made motions for directed verdict at the conclusion of

Frizell’s case, and the following colloquy took place:

       MR. PROCTOR:          Actually, based upon the defendant’s testimony, I now move that
                             the Court would enter a judgement in favor of the plaintiff. He
                             just go[t] through testifying that he felt that the medical evidence
                             that we presented was -- that the treatment -- he could not
                             contest the fact that the treatment was not necessary. He agreed
                             that the treatment was something that was necessary. He agreed
                             with the fact that the doctor took him off for the period of time.

                             So as far as the medical evidence -- I know they contest the
                             amount of the lost wages. But as far as the medical expenses and
                             the records, Your Honor, we move that we get a judgement for
                             the $7,000 in the record -- $7,000 in medical expenses based
                             upon the admission of the defendant. Now, I know the $10,000
                             is still an issue because he -- they’re contesting the amount of the
                             wages. But, you know, he just conceded that -- he conceded
                             our reasonable and necessary. So there is nothing to go to the
                             jury on that.

       MR. STATEN:           Your Honor, he said that he is no doctor. And it’s up to the
                             jury to decide what medical expenses are reasonable and
                             necessary in relating to the accident. He did not concede and
                             say, oh, I agree that the medical bills are reasonable and
                             necessary. He just said he did not -- he was not a doctor, and he
                             wasn’t going to question the doctor. I’ve never heard of a case
                             like this where the medical bills have been a judgement. The
                             medical bills, based on the testimony of a layperson.

       MR. PROCTOR:          Your Honor, here’s the problem, Your Honor, what evidence
                             is there in the record the fact that the medical bills and expenses
                             are not reasonably related.


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MR. STATEN:    It’s up to the jury.

MR. PROCTOR:   It’s not up to the jury, Your Honor. When the other side
               concedes it -- if he had said, No, I don’t agree -- if he had just
               said: No, I’m not a doctor. I don’t agree, then, okay, maybe he
               has a point. But when you say: No, I’m not a doctor. I agree.
               The doctor has the superior opinion. That is what he said.
               Then, there is nothing. There’s no dispute. There is no longer
               a factual dispute. We are entitled to a judgement.

THe COURT:     I think it’s a matter of the questions that you are asking. And
               I’m going to allow the jury to go out now.

....

THe COURT:     All right. Plaintiff has made his motion, and the Court is finding
               that the defendant is not contesting that the medical treatment
               the plaintiff received was reasonable and medically necessary.
               And that’s one finding that the Court is making.

               And, secondly, the defendant agrees that it was appropriate for
               Dr. Rutledge -- I believe it was -- to direct -- to find that
               plaintiff needed to be off work from July 20th through
               September 29th, I believe you are requesting, and that it was
               appropriate for the doctor to direct him to be off work during
               that period.

               So the Court grants the motion of the plaintiff to the extent that
               the Court is making those findings.

MR. STATEN:    Your Honor, for the record, how the -- the jury -- the jury
               instruction says that it’s up to the jury to determine -- and let me
               read the instruction, please, Your Honor. It’s up to the jury to
               reasonably and fairly compensate the plaintiff for the following
               elements of damage sustained which they find -- okay -- were
               proximately caused by the negligence of Anthony Frizzell. What
               the jury finds were proximately caused by the evidence -- by the
               negligence of Anthony Frizzell.

               And then under medical expenses that the Court
               rules, the reasonable expense of any necessary
               medical care. Your Honor, we contend it’s up to

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              the jury to decide what is necessary and whether or
              not -- and what treatment is necessary and that the
              services received were reasonable and necessary. And
              then --

THe COURT:    I understand that. And if -- it’s also a jury question whether
              defendant as liable. But if the defendant concedes that he’s liable,
              then that takes it away from the jury. And the Court listened to
              the concessions that were made by the defendant, and the Court
              made its rulings based on those concessions. The same as if he
              stated those concessions in a pleading. And he made them from
              the stand.

MR. STATEN:   Your Honor, the -- the defendant simply said that he -- that he’s
              no medical expert, and he’s not. And that he’s not saying that it
              is -- it was all negatives. He’s not saying that it’s unreasonable
              because he -- he’s not an expert as far as x-rays and things like
              that. I -- he --

....

THe COURT:    Okay. The Court made the ruling that it did. In fact, when I
              listened to it -- I’ve now heard the testimony three times. I
              listened to it when the witness was on the stand, and then I
              listened to it once with the court reporter. And then I had her
              stop and go back, and I listened to it again. So I’ve listened to
              it three times now. And the Court is making its ruling strictly
              on the questions that were asked and on the responses that were
              provided. Now, Mr. Proctor was asking the questions, and the
              defendant was answering. And the Court is making these two
              findings just based on what the Court listened to. And I’ve now
              heard it three times. And I understand that the attorneys can
              argue about what he meant, but I heard a clear no contest on
              some issues. And that’s the way the Court is ruling. Now, the
              rulings are --

....

THe COURT:    -- were very narrow. They didn’t cover everything. I made the
              narrow findings that the Court needed to make, and I think both
              sides really just need to listen. I specifically didn’t address some
              things because Mr. Proctor did not address them during his

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                             questioning. He didn’t address money at all during the
                             questions. And so that’s why my rulings don’t really address the
                             money.

       MR. STATEN:           Okay.

       During closing argument, Frizell’s attorney stated the following:

       Ever felt like you’ve been swimming up stream all day? That’s what I feel like. Like
       I’ve been swimming up stream all day. I can’t win for losing. Mr. Proctor has alluded
       that I’m going to try to trick you when it comes to the medical expenses. I’m not
       going to try to trick you. I’m going to tell you the truth. All right. Got a gotcha
       moment with this young man here. Mr. Proctor asked him several times, “Well
       you‘re not a doctor? ‘ No he’s not. And he asked him, well do you know -- you
       don’t know if the doctor says this or the doctor says that. We don’t know that. You
       can‘t say that this wasn’t reasonable and this wasn’t necessary.

       I‘ve been doing this 29 years and this is the first day I’ve ever had a gotcha moment.
       I had a gotcha moment. And the Court ruled that I can’t argue that the medical
       expenses are reasonable and necessary. Excuse me, medical treatment, medical
       treatment. That the treatment is reasonable.

        And I’m going to go ahead and tell you right now. Based on the jury instructions,
       and to be fair so that nobody can call me a liar. All right. And let me get the exact
       figure here. All right. Unfortunately, based on the jury instructions and the ruling of
       this Court. Mr. Proctor used to be a judge. All right. The medical expenses are
       $6,8020.38. And that’s what he keeps on alluding to because that’s what the Court
       ruled. Never seen it before in 29 years.

The attorney was called to the bench and admonished by the trial court. He was also told to

appeal the court’s rulings if he did not agree with them. In closing, Frizell’s attorney told the

jury, “So when you get back there and look at all the evidence, here is what I ask you to do,

not a penny more, please. Please. You’re duty bound $6,820.38.”

       The trial court reread the jury a portion of AMI Civil 101A, which basically instructed

the jury that they were to accept the court’s decision concerning evidence “without question

and do not guess or assume what the answer might have been.” The jurors also received

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individual copies of the jury instructions. They were subsequently excused to deliberate.

While the jury was out, the court found Frizell’s attorney in contempt for his “totally

improper” behavior6 and fined him $800. The jury sent a letter to the court asking, “Have

we been instructed that we have to award Mr. Warren $6,820.38?” The court responded by

instructing the jury to “apply the instructions to the facts as [they] find them to be.” The jury

returned a verdict in favor of Frizell. Warren’s attorney made an oral motion for JNOV and

new trial, arguing that Frizell had conceded to the amount of the medical bills. Frizell’s

attorney responded that they had not conceded to the amount owed, but only to the court’s

ruling.

          The court entered a judgment on the jury’s verdict on July 15, 2015, and dismissed

Warren’s complaint with prejudice. Warren filed a motion for JNOV and for a new trial.

Warren filed a timely notice of appeal after the deemed denial of his motion. This appeal

followed.

          For his first point on appeal, Warren argues that the trial court erred when it did not

enter a judgment in his favor for medical expenses. More specifically, Warren contends that

it was error for the trial court to deny his directed-verdict motion and motion for JNOV

when Frizell’s attorney conceded that Warren was entitled to $6,820.38. A directed-verdict

motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a



          6
        The court stated that he had to be warned twice about testifying and that even after
the warning, he did it at least two more times. Additionally, the court said that he got up in
front of the jury and basically told them that they did not have to agree with the court’s
ruling.

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motion for a directed verdict, we determine whether the jury’s verdict is supported by

substantial evidence.7 The same rule applies to motions for JNOV.8 Substantial evidence is

evidence that is of sufficient force and character that it will, with reasonable certainty, compel

a conclusion one way or the other, without having to resort to speculation or conjecture.9

When determining the sufficiency of the evidence, we review the evidence and all reasonable

inferences arising therefrom in the light most favorable to the party on whose behalf judgment

was entered.10 We do not try issues of fact but examine the record to determine whether

there is substantial evidence to support the jury’s verdict.11 Thus, when testing the sufficiency

of the evidence on appellate review, we need only consider the testimony of appellees and

evidence that is most favorable to appellees.12 We defer to the jury’s resolution of the issue

unless we can say that there is no reasonable probability to support the appellee’s version.13

       Before we address whether or not the trial court erred in denying Warren’s motions

for directed verdict and JNOV, we must first determine if Frizell’s attorney’s statement during

closing arguments amounted to a concession. Generally, an attorney’s statements are not



       7
           Spann v. Lovett & Co., 2012 Ark. App. 107, 389 S.W.3d 77.
       8
           Gassman v. McAnulty, 2009 Ark. App. 471, 325 S.W.3d 897.
       9
           Spann, supra.
       10
            Id.
       11
            Id.
       12
            Id.
       13
            Id.

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evidence; however, concessions made by an attorney can bind his client.14 We hold that it

did not. At the time the statement was made, the court had already made a ruling on the

reasonableness and necessity of the medical expenses. Therefore, based on the court’s ruling,

Frizell’s attorney told the jury that they were duty bound to award Warren $6,820.38. After

the jury began deliberations, they sent a letter to the court asking if they were obligated to

award that amount to Warren.          The court responded by telling them to follow the

instructions. They subsequently returned a verdict in Frizell’s favor.

       Substantial evidence supports the jury’s verdict. Warren sought damages for his

medical expenses in the amount of $6,820.38, which he argued were related to injuries caused

when Frizell rear-ended him. He testified that the impact caused his body to move forward

and that he had to brace himself with the steering wheel to keep from knocking his head on

either the steering wheel or the windshield. He also testified about the damage his vehicle

sustained. However, Frizell’s testimony contradicted that of Warren. Frizell testified that he

only nicked Warren’s left taillight and that there was little damage to either of the vehicles.

He also said that he did not experience any movement in his truck, as the accident took place

when he was going fifteen mph or less. The jury heard conflicting testimony and ultimately

decided that Warren’s medical treatment was not in relation to any injuries sustained in the

automobile accident. We cannot say that this was error. Therefore, we affirm.

       Next, Warren argues that the trial court erred by denying his motion for a new trial.

Warren timely filed a motion for new trial asserting three grounds: (1) Frizell’s attorney


       14
            See Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004).

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engaged in misconduct, which inured to Frizell’s benefit,15 (2) the jury erred in assessing zero

damages,16 and (3) the jury’s verdict was contrary to the evidence.17 The trial court did not

act on the motion, and it was deemed denied after thirty days.

       Warren argues that a new trial should have been granted due to misconduct by Frizell’s

attorney.         The improper conduct Warren complains about took place during closing

arguments when Frizell’s attorney stated that he had a “gotcha moment” and referred to the

court’s ruling that he could not make an argument that “the medical expenses were not

reasonable and necessary.” The court admonished the attorney and subsequently found him

in contempt and fined him $800. According to Warren, he is entitled to a new trial because

this conduct was “so egregious.” The decision to grant or deny a new trial under Rule

59(a)(2) is discretionary with the trial court.18 We will not reverse absent an abuse of that

discretion.19 An appellant bears the burden of demonstrating that a reasonable possibility of

prejudice resulted from the alleged improper conduct.20

       Our inquiry is whether the conduct by Frizell’s attorney constituted misconduct within

the meaning of the rule. We hold that it was not. While we do not condone the conduct,


       15
            Ark. R. Civ. P. 59(a)(2).
       16
            Ark. R. Civ. P. 59(a)(5).
       17
            Ark. R. Civ. P. 59(a)(6).
       18
       D.B. & J. Holden Farms Ltd. P’Ship v. Ark. State Highway Comm’n, 93 Ark. App. 202,
218 S.W.3d 355 (2005).
       19
            Id.
       20
            Id.

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we believe that the trial court maintained firm control over the proceedings as evidenced by

the admonishment to counsel, the finding of contempt, and the re-giving of AMI Civil

101A.21 Additionally, Warren has not meet his burden of demonstrating a reasonable

possibility that prejudice resulted from the conduct of Frizell’s attorney. Therefore, we

affirm.22

       Warren’s other two grounds for a new trial deal with the sufficiency of the jury’s

verdict. Frizell admitted liability, but the mere fact that a plaintiff has incurred medical

expenses and the defendant had admitted liability does not automatically translate into a

damages award equivalent to those expenses.23 The burden remains on the plaintiff to prove

that any damages sustained were proximately caused by the negligence of the defendant even

where the defendant admits liability.24 The jury is the sole judge of the credibility of the

witnesses and of the weight and value of the evidence.25 Here, the jury found in favor of

Frizell, and we have already held that substantial evidence supports that finding. Accordingly,

we affirm.26


       21
            See James Tree & Crane Servs., Inc. v. Fought, 2016 Ark. App. 320.
       22
        We note that we would also affirm due to Warren’s failure to comply with the
provisions of Ark. R. Civ. P. 59(c) in that this motion, based on misconduct of Frizell’s
attorney, was not accompanied by an affidavit as required by the rule.
       23
            James Tree, supra.
       24
            Id.
       25
            Id.
       26
       Since Frizell’s cross-appeal was conditional upon the disposition of Warren’s appeal,
we need not address it.

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Affirmed.

HARRISON and HIXSON, JJ., agree.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

Laser Law Firm, by: Kevin Staten and Brian A. Brown, for appellee.




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