Cite as 2017 Ark. 249

SUPREME COURT OF ARKANSAS

No. CV-17-425

NATHAN JARRETT AND KEY 

ENERGY SERVICES, LLC

APPELLANTS

V.

ANDREW J. BRAND

APPELLEE

Opinion Delivered: September 14, 2017

APPEAL FROM THE PERRY

COUNTY CIRCUIT COURT

[NO. CV-2011-52]

HONORABLE MACKIE M. PIERCE, 

JUDGE

DISSENT ON DENIAL OF

PETITION FOR REVIEW.

JOSEPHINE LINKER HART, Associate Justice

I would grant appellants’ petition asking for review of the decision of the Arkansas 

Court of Appeals in Jarrett v. Brand, 2017 Ark. App. 276. As the court of appeals 

acknowledges, the circuit court considered appellants’ argument and ruled against appellants, 

finding that the question whether the bankruptcy filing flowed from the automobile 

accident was a question of proximate cause for the jury as triers of fact. In their brief before 

the court of appeals, appellants argued that neither Arkansas law nor case law from other 

jurisdictions supported the circuit court’s conclusion. Appellants observed that Arkansas’s 

jury instructions did not consider bankruptcy losses as an element of damages. Appellants 

further noted that there were good public-policy reasons to support their position. And 

finally, appellants argued that, in considering the meaning of the phrase, “proximate cause,” 

an automobile accident could not be the proximate cause of a bankruptcy. But even though 
Cite as 2017 Ark. 249

2

appellants made the argument at trial, the circuit court ruled on it, and appellants made the 

same argument in their brief, the court of appeals concluded that 

[appellants’] arguments on appeal were never presented to the trial court. At trial, 

[appellants] made a generic motion in limine that bankruptcy losses were not an 

element of damages in a personal-injury case. On appeal, however, [appellants]

present[ ] specific challenges to the circuit court’s denial of his motion in limine. 

[Appellants] make[ ] sweeping public-policy arguments against the introduction of 

evidence of bankruptcy in personal-injury cases. For example, [appellants] contend[ ]

that a selective listing of assets and personal estimates of value do not reflect the 

complexity of a bankruptcy case. [Appellants] further argue[ ] that allowing evidence 

of bankruptcy damages in a personal-injury case “provides an opportunity for an 

unscrupulous plaintiff to tell the bankruptcy court one thing and the circuit court 

something else.” [Appellants] also assert[ ] that “the path from a car accident to 

bankruptcy is not a ‘natural and continuous sequence of events.’” [Appellants] go[ ]

on to cite other jurisdictions that [appellants] claim support [their] contention that 

claims of equity lost in bankruptcy should be precluded as damages in a personalinjury case. None of these specific arguments were presented to the trial court.

Jarrett, 2017 Ark. App. 276, at 6.

As is obvious even from the court of appeals’ decision, the issue of whether an 

automobile accident could proximately cause a bankruptcy was argued by the parties, ruled 

on by the circuit court, and argued in the appellate briefs. Thus, I would reverse the court 

of appeals’ decision and remand to the court of appeals to consider the merits of the 

argument.