Jesse Cureton and Joie Cureton v. Calvin Stout Cv-18-651

Reason: I
attest to the
accuracy and
integrity of this
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Date: Cite as 2020 Ark. App. 414
2021-07-08 15:
06:09 ARKANSAS COURT OF APPEALS
Foxit DIVISION I
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Version: 9.7.5 No. CV-18-651

JESSE CURETON AND JOIE
Opinion Delivered: September 16, 2020
CURETON
APPELLANTS
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. 72CV-17-470]
CALVIN STOUT
APPELLEE
HONORABLE DOUG MARTIN,
JUDGE

APPEAL DISMISSED

MIKE L. MURPHY, Judge

This appeal is a companion to Cureton v. Stout, 2020 Ark. App. 406, also handed

down today.1 In this appeal, Jesse Cureton and Joie Cureton appeal the compensatory-

damages award received from a jury trial in the Washington County Circuit Court. 2 For

the reasons explained below, we must dismiss the appeal for lack of a final, appealable order.

Siblings Jesse Cureton and Joie Cureton were injured in a multivehicle accident on

September 25, 2016. The accident occurred when the appellee Calvin Stout attempted a

left-hand turn in front of on-coming traffic, and his vehicle collided with a vehicle driven

1
Both appeals arise out of a single lawsuit wherein appellants sought both
compensatory and punitive damage from appellee Calvin Stout as a result of a motor-vehicle
accident.
2
Although judgment was entered against Stout, he has not appealed.
by Edward Stith.3 This initial collision forced Stith’s vehicle into the Cureton vehicle. Stout

was subsequently charged with driving while intoxicated and later pled guilty.

On March 9, 2017, the Curetons4 filed suit against Stout, alleging negligence and

seeking both compensatory and punitive damages because Stout was driving while

intoxicated at the time of the motor vehicle collision. Stout answered the complaint,

admitting liability for all compensatory damages to the Curetons but denying that he was

liable for punitive damages.

Stout moved to bifurcate the proceedings into two stages, compensatory damages

and punitive damages, pursuant to Arkansas Rule of Civil Procedure 42(b). He argued that

because he had admitted liability, the only relevant issues at the compensatory-damages stage

were the injuries and the amount of compensatory damages sustained by the plaintiffs as a

result of the accident. He contended that evidence of his intoxication or that some conduct

may have been willful, wanton, or intentional, on the other hand, was relevant only with

respect to the claim for punitive damages.

3
Stith was not named as a party in the subsequently filed lawsuit.
4
The plaintiffs in the initial complaint were Jesse, who was the driver of the vehicle,
and Chad and Monica Cureton, in their capacity as parents and guardians of Joie, who was
a passenger and a minor at the time of the accident. During the pendency of the case, Joie
reached the age of majority. The complaint was amended numerous times thereafter, but in
the final amended complaint filed, Chad and Monica were still listed as parties although the
complaint alleged that they were no longer necessary parties due to Joie’s reaching the age
of majority. The appellate record indicates the court orally dismissed Chad and Monica on
the morning of trial; however, we were unable to find in our record any order either
substituting Joie for Chad and Monica or any order formally dismissing Chad and Monica
as parties. We note an oral ruling is not sufficient to dismiss a party from an action, as an
oral order announced from the bench does not become effective until reduced to writing
and filed. Ark. Sup. Ct. Admin. Order No. 2(b)(2) (2019); McGhee v. Ark. Bd. of Collection
Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006).

2
The Curetons opposed the motion to bifurcate, arguing that it should be denied

because it would violate judicial economy and prejudice their claims. Additionally, they

argued that Stout failed to show that bifurcation was needed.

On March 7, 2018, the circuit court entered an order granting Stout’s motion to

bifurcate. The court found that, given Stout’s admission of liability, evidence concerning

intoxication had only limited probative value to the issue of compensatory damages. The

court also found that pursuant to Arkansas Rule of Evidence 403, the risk of undue prejudice

of such evidence during the compensatory phase of the trial substantially outweighed any

probative value it may have under Arkansas Rule of Evidence 401. The circuit court

bifurcated the compensatory- and punitive-damages claims pursuant to Rule 42(b) of the

Arkansas Rules of Civil Procedure into separate phases of one trial to be conducted before

the same jury.

On March 8, 2018, Stout filed a second motion in limine. In this motion, he sought

to exclude any history of prior DUIs or DWIs he had received as completely irrelevant to

any phase of trial or any issue remaining to be tried. He had testified in a deposition that he

had received more than one DWI or DUI over thirty years prior to the accident in this case.

In their March 9, 2018 response to Stout’s motion in limine, the Curetons agreed

that because Stout admitted liability, the traffic citations and subsequent convictions were

not relevant in the compensatory-damages phase of the trial. The Curetons stated that they

understood the court’s ruling on the motion to bifurcate and would abide by the ruling.

The parties proceeded to a jury trial on March 13-14, 2018. After completing the

compensatory-damages phase of the trial, the jury returned with separate verdicts awarding

3
the Curetons $1,000 each in compensatory damages. Each verdict form was signed by ten

jurors. The parties then commenced the second punitive-damages phase of the trial.

During his opening statement of the punitive-damages phase, the Curetons’ attorney

said “we’re asking you to punish the defendant for his behavior. This was not his first DWI.”

Stout’s attorney immediately asked to approach the bench, at which time he objected and

brought up his second motion in limine about the prior DWIs and the court’s handling of

the matter in chambers prior to trial. The court agreed that its orders and/or instructions

had been violated by the Curetons’ attorney and that there was no way to cure such a

violation. Stout sought a mistrial only as to the punitive-damages phase because the

compensatory-damages phase had been tried and the jury had rendered verdicts and also

because the punitive-damages phase could be heard separate and apart from the

compensatory-damages trial. The Curetons argued that any mistrial should be for both

phases of the case. The court granted the mistrial only as to the punitive-damages phase and

discharged the jury.5 The court’s mistrial ruling was memorialized in a detailed order entered

on March 22, 2018.

On April 10, 2018, judgment was entered on the jury’s verdicts of compensatory

damages. On May 10, the Curetons filed their notice of appeal from this judgment.

The Curetons raise several points in this appeal. We are not able to address the merits

of the appeal at this time due to finality issues. Whether an order is final and subject to

appeal is a jurisdictional question that this court will raise sua sponte. Moses v. Hanna’s Candle

5
On July 11, 2018, a separate jury heard the evidence on punitive damages and
rendered a verdict that is the basis of the companion appeal. See Cureton v. Stout, 2020 Ark.
App. 406, the companion case handed down this day.

4
Co., 353 Ark. 101, 103, 110 S.W.3d 725, 726 (2003). In order to discourage piecemeal

litigation, an appeal may be taken only from a final judgment or decree, with certain limited

exceptions. For a judgment to be final, it must dismiss the parties from the court, discharge

them from the action, or conclude their rights to the subject matter in controversy. See Ark.

R. App. P.–Civ. 2(a). Arkansas Rule of Civil Procedure 54(b) permits an appeal from an

order resolving fewer than all claims against all parties but only when a proper certificate is

executed by the circuit court. Without either a final order pursuant to Arkansas Rule of

Appellate Procedure–Civil 2(a) or an order with a proper Arkansas Rule of Civil Procedure

54(b) certification, we do not have jurisdiction to hear this case. Moses, supra. We do not

have such an order here.6

A circuit court, in furtherance of convenience or to avoid prejudice, or when separate

trials will be conducive to expedition and economy, may order a separate trial of any claim

or issue. Ark. R. Civ. P. 42(b). However, when separate trials are ordered, the case as a

whole remains intact and usually results in but one judgment. See Barnhart v. City of

Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994). “There is no final judgment until all of

the issues have been resolved and judgment entered on the whole case unless a lesser

judgment is certified under the provisions of Rule 54(b).” Id. at 744–45, 875 S.W.2d at 80–

81 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2392

(1st ed. 1971)). Consequently, a trial on any of the individual issues does not result in a final

6
We are cognizant that the Curetons attempted to obtain a Rule 54(b) certification
from the court but were denied. This denial of certification is not itself appealable nor does
it render the compensatory-damages judgment a final order. See Bean v. Ark. Dep’t of Human
Servs., 2016 Ark. App. 58.

5
judgment for purposes of appeal. See Barnhart, supra; Ellis v. Agriliance, LLC, 2012 Ark. App.

549.

The circuit court in this case ordered separate trials on the issues of compensatory

and punitive damages in order to avoid prejudice to Stout.7 However, pursuant to Arkansas

Rule of Civil Procedure 42(b), the case as a whole remained intact until the entry of a single

judgment. Barnhart, supra. The confusion here occurs because the court entered two separate

judgments instead of one single judgment. But the entry of the two separate judgments does

not circumvent our rules on finality. The compensatory-damages judgment in this appeal is

not final because it did not resolve the issue of punitive damages. As such, it did not dismiss

the parties from the court, discharge them from the action, or conclude their rights to the

subject matter in controversy. Nor did the circuit court issue a Rule 54(b) certification

allowing for an interlocutory appeal of its decision. Because the order on appeal is not final,

the appeal is subject to dismissal. Servewell Plumbing, LLC v. Summit Contractors, Inc., 360

Ark. 521, 202 S.W.3d 525 (2005); Barnhart, supra.

Appeal dismissed.

WHITEAKER and HIXSON, JJ., agree.

Rainwater, Holt & Sexton, P.A., by: Meredith S. Moore, for appellants.

Benson & Bennett, P.L.C., by: Justin Bennett, for appellee.

7
We are cognizant of the fact that in this appeal, the Curetons have alleged that the
circuit court erred in its ruling on separate trials. We are not addressing the merits of this
alleged error. We are merely concluding that the ruling of the court concerning the
separation of trials creates a finality issue.

6