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Neste Polyester10/5/2005
uch itemizations are not determinative and would not test the ultimate verdict in this case regarding the appropriateness of an award of lost profits. UZ Engineered Prods. Co. v. Midwest Motor Supply Co., Inc., 770 N.E.2d 1068 (Ohio App. 2001). Also, the interrogatories submitted omitted some of the elements of damage claimed by Viper. Like jury instructions, special interrogatories should accurately reflect the evidence and the damages claimed. McDaniel Bros. Const. Co. v. Mid-State Const. Co., 252 Ark. 1223, 482 S.W.2d 825 (1972); see also Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989); Property Owners Improvement Dist. v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992).
The final issue raised by Neste is that it should be awarded a new trial because of the cumulative errors alleged in the first three points. We do not reach the merits of this cumulative-error argument, as Neste failed to make a cumulative-error objection below. The supreme court has previously held that an appellant asserting a cumulative-error argument must show that there were individual objections to the alleged errors and that the cumulative-error objection was made to the trial court and a ruling was obtained. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Affirmed.
Vaught, J., agrees.
Hart, J., concurs.
Josephine Linker Hart, Judge, concurring.
I agree that this case must be affirmed, but write separately because I respectfully disagree with the majority's analysis concerning Neste Polyester's argument that the trial court erred in admitting evidence concerning Viper's lost profits theory for recovery of damages because lost profits are "special damages," and Viper failed to comply with Rule 9(g) of the Arkansas Rules of Civil Procedure that its damage theory be specifically pled. I cannot agree that Viper's pleadings "substantially complied" with Rule 9(g), or that this point was somehow barred because he failed to object to Viper's expert testifying about lost profits. Neste's argument fails simply because it has long been settled law that the purpose of requiring special damages to be pled is to prevent surprise, and where no surprise is pleaded and no time requested to prepare to meet the issue, there is no error. Arkansas Louisiana Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083, 468 S.W.2d 754 (1971). At oral arguments, Neste stated unequivocally that it was not surprised by Viper's damage theory; therefore, there is no reversible error.
I concur.
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