Rel: March 26, 2004,
Williford v. Emerton
Notice: This
opinion is subject to formal revision before publication in the advance sheets
of Southern Reporter.
Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741
((334) 242-4621), of any typographical or other errors, in order that
corrections may be made before the opinion is printed in Southern
Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2003-2004
_________________________
_________________________
v.
Scott Emerton and Kristi Emerton
Appeal from Chambers Circuit Court
(CV-00-73)
SEE, Justice.
Scott Emerton and Kristi Emerton sued Kenny
Williford and Charlotte Williford, individually and d/b/a Ben-Mor Village, in
the Chambers Circuit Court. The dispute
involved the lease-purchase of a mobile home.
After a jury rendered a verdict in favor of the Emertons, the trial
court entered a judgment awarding them $383,000 in compensatory and punitive
damages. The Willifords appeal,
arguing: (1) that the verdict is
unsupported by the evidence, (2) that the amount of damages awarded is
unsupported by the evidence, (3) that the trial court improperly dismissed
their Batson v. Kentucky, 476 U.S. 79 (1986), challenge, and (4) that
the trial court improperly allowed the trial to proceed over their objection
that the Emertons' counsel had a conflict of interest that prohibited him from
serving as their counsel in this matter.
We affirm in part and remand with directions.
I.
On August 28, 1998, the Emertons entered
into a contract with the Willifords pursuant to which the Emertons were to
purchase a mobile home from the Willifords under a lease-to-own plan. The Willifords own and operate Ben-Mor
Village, a trailer park in Chambers County.
Under the terms of the lease-purchase contract, the Emertons made an
initial down payment of $500 and financed the remaining $2,500 at 9%
interest. They agreed to make monthly
payments of $150 until the balance was paid in full, at which point they would
gain title to the mobile home. The
Emertons simultaneously entered into a separate lot-rental contract with the
Willifords pursuant to which the Emertons agreed to pay $100 per month to rent
a lot in Ben-Mor Village, plus $10 per month for garbage collection and $15 per
month for water.1
Shortly afer entering into the
lease-purchase contract, the Emertons decided to upgrade, and, on October 9,
1998, they made a $500 down payment on a newer and larger mobile home and
entered into another lease-purchase contract with the Willifords for the second
mobile home. This contract replaced the
August 28 contract, but, except for the amount financed and the monthly
payments, it was identical in all respects to that contract. The amount financed in the October
lease-purchase contract was $7,500, and the monthly payments increased to
$200. The $125 lot rental and garbage
and water obligation remained unchanged, bringing the Emertons' total normal
monthly obligation to the Willifords to $325.
In November 1998, because of a problem with
their automobile, the Emertons were unable to meet their monthly obligation,
and on November 13, 1998, they made only a partial payment of $260.2
Because of the automobile problem, the Emertons were forced to move in
with Scott Emerton's parents so that his parents could drive Scott to and from
work. Because the Emertons had failed to
pay their entire balance, the Willifords, on November 23, placed on the door of
the mobile home a "Notice of Termination of Tenancy/Lease." The notice warned the Emertons that if they
did not surrender possession of the mobile home within 10 days they would face
legal action. On December 1, the
Willifords placed a second, identical "Notice of Termination of
Tenancy/Lease" on the door of the mobile home.3
On December 11, the Emertons and Scott's
mother returned to the mobile home with a truck to move their personal
belongings out of the home. The Emertons
claim that when they arrived, they saw that the Willifords had removed the door
to the mobile home and the Willifords were inside. Upon seeing the Emertons, Kenny Williford
allegedly became angry and told them they had 10 minutes to get everything out
of the home before he telephoned the police.
The Emertons claim that they then gathered what they could in 10 minutes
and left, leaving many of their possessions in the mobile home.
On March 21, 2000, the Emertons sued the
Willifords, alleging conversion, trespass, the tort of outrage, and breach of
contract. The case was tried before a
jury on September 16, 2002. The jury
returned verdicts in favor of the Emertons on their conversion and
breach-of-contract claims.4
On the breach-of-contract claim, the jury awarded the Emertons $25,000
in compensatory damages, interest, and costs.
On the conversion claim, the jury awarded the Emertons $8,000 in
compensatory damages and $350,000 in punitive damages. On September 19, 2002, the trial court
entered a judgment in favor of the Emertons in the total amount of $383,000 in
accordance with the jury verdict.
The Willifords filed a motion for a new
trial or a judgment as a matter of law ("JML")5 and a motion for a remittitur. The trial court denied both motions, and the
Willifords appealed.
II.
The Willifords' first argue on appeal that
the jury's verdicts in favor of the Emertons on the conversion and
breach-of-contract claims are unsupported by the evidence. In considering previous appeals challenging a
jury's verdict, this Court has said:
"Upon
review of a jury verdict, we presume that the verdict was correct; we review
the tendencies of the evidence most favorably to the prevailing party; and we
indulge such reasonable inferences as the jury was free to draw from the
evidence. We will not overturn a jury
verdict unless the evidence against the verdict is so much more credible and
convincing to the mind than the evidence supporting the verdict that it clearly
indicates that the jury's verdict was wrong and unjust."
Campbell v.
Burns, 512 So. 2d
1341, 1343 (Ala. 1987). Moreover, this
presumption of correctness "is strengthened by the trial court's denial of
the motion for a new trial." Friendly
Credit Union v. Campbell, 579 So. 2d 1288, 1291 (Ala. 1991).
The Willifords argue that there was no
basis on which the jury could have found them liable on the breach-of-contract
and conversion claims because, they allege, the evidence was undisputed that
the Emertons breached the contract first by failing to meet their entire
obligation for November, and "[u]nder general principles of contract law,
a substantial breach by one party excuses further performance by the
other." Nationwide Mutual Ins.
Co. v. Clay, 525 So. 2d 1339, 1343 (Ala. 1988). The Willifords also argue that, because the
lease-purchase contract stated that all rights to the mobile home reverted to
the Willifords if the Emertons did not make a payment within 30 days of its
becoming due, they cannot be found liable for conversion.
The Emertons argue that, based on their
payment on November 13 of $260, they never breached the lease-purchase
contract, which is the only contract they are suing on, and which required a
monthly payment of only $200. Therefore,
they argue, because they were current on the payment required by the
lease-purchase contract, the Willifords had no right to terminate the
lease-purchase contract or to interfere with their possession of the mobile
home. They acknowledge that they may
have breached the lot-rental contract, but they argue that that breach should
not be imputed to the lease-purchase contract, an entirely separate
agreement.
Moreover, they argue, even if their failure
to meet all of their November obligation constituted a breach of the
lease-purchase contract, that breach did not occur until 30 days after the end
of November, or December 30, because the lease-purchase contract did not
specify a due date for payments made under it.
The lease-purchase contract states only that payments should be made
"on the same day of each month"; it never explicitly states what that
date is. The Willifords argue that it is
clear that the monthly payments for the mobile home were due on the first day
of each month based on (1) the separate lot-rental contract calling for payment
of the amount due under that contract on the first day of each month and (2) an
amortization schedule the Emertons were given when they signed the
lease-purchase contract that listed the monthly payments as being paid on the
first day of the month in which they were due.
However, as the Emertons counter, the lease-purchase contract contains a
merger clause stating that the contract "is the entire agreement of the parties
and there are no other agreements either written or oral, other than is
expressly set forth herein."
Therefore, they argue, the lot-rental contract and the amortization
schedule cannot be considered when interpreting the lease-purchase contract.
When a contract is ambiguous, its meaning
is an issue for the jury to determine. Kirkland
& Co. of Anniston, P.C. v. A & M Food Serv., Inc., 579 So. 2d 1278,
1282 (Ala. 1991). After hearing
testimony regarding the above arguments, the jury returned verdicts finding
that the Willifords were liable for conversion and for breach of contract. The Willifords have not shown that "the
evidence against the verdict is so much more credible and convincing to the
mind than the evidence supporting the verdict that it clearly indicates that
the jury's verdict was wrong and unjust," Campbell, 512 So. 2d at
1343; therefore, this Court will not disturb the jury verdicts. See Marsh v. Green, 782 So. 2d
223, 227 (Ala. 2000) (stating that this Court will "decline to substitute
[its] judgment for that of the jury in matters dealing with credibility of
witnesses and weight of the evidence").
III.
The Willifords argue that the amount of
damages awarded the Emertons was unsupported by the evidence. The jury awarded a total of $383,000 in
damages: $25,000 in compensatory
damages, interest, and costs on the breach-of-contract claim; and $8,000 in
compensatory damages plus $350,000 in punitive damages on the conversion claim.
We pretermit any consideration of the
Willifords' argument that the evidence was insufficient to support the damages
awarded on the breach-of-contract claim, because the Willifords failed to
preserve that issue for our review. That
argument was raised for the first time in the Willifords' posttrial motion. As this Court stated in Industrial Technologies,
Inc. v. Jacobs Bank, [Ms. 1011966, April 25, 2003], ___ So. 2d ___, ___
(Ala. 2003):
"It is well-established that 'a timely
post-trial motion [for a JML] is necessary to permit an appellate court to
consider the sufficiency of the evidence.'
Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877, 880 (Ala.
1979); see also Joseph Land & Co. v. Gresham, 603 So. 2d 923, 927-28
(Ala. 1992); King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc.,
518 So. 2d 714, 716 (Ala. 1987).
However, '[i]t is a procedural absolute that a [posttrial motion for a
JML], based on the "insufficiency of the evidence," is improper, if
the party has not moved for a [JML] on the same ground at the close of all the
evidence.' Barnes v. Dale, 530
So. 2d 770, 776 (Ala. 1988)."
In Industrial
Technologies, the defendant, at the close of all the evidence, moved for a
JML on six grounds; however, none of those six grounds included a challenge to
the sufficiency of the evidence as to the compensatory damages. Id.
Therefore, this Court held that "[b]ecause that argument was first
raised in a posttrial motion for a JML, it is not reviewable." ___ So. 2d
at ___.
In the present case, counsel for the
Willifords stated at the close of all the evidence that the "only motion
[she] want[ed] to renew [was] for a directed verdict6 on the conversion."7 Because this motion did not
implicate the breach-of-contract claim, the Willifords' challenge to the
sufficiency of the evidence supporting the damages awarded on the
breach-of-contract claim was raised for the first time when the Willifords
filed their posttrial motion for a JML.
Therefore, the issue was not preserved for appellate review.
The Willifords did preserve for review
their argument that the $8,000 compensatory-damages award on the Emertons'
conversion claim was not supported by the evidence. At trial the Emertons presented evidence of
only $2,180 in actual damages; on appeal, the Emertons claim that the extra
$5,820 can be attributed to the mental anguish associated with the loss of
items with sentimental value that were in the mobile home, including wedding
gifts and wedding photographs.8 We agree. Therefore, we affirm the award of $8,000 in
compensatory damages on the conversion claim.
See New Plan Realty Trust v. Morgan, 792 So. 2d 351 (Ala.
2001) (compensatory-damages award of $100,000 affirmed where landlord converted
tenant's property worth $46,679, because the additional amount could be damages
attributed to mental anguish).
Finally, the Willifords challenge the
jury's verdict awarding the Emertons $350,000 in punitive damages on their
conversion claim. The Willifords first
argue that we should remand this case to the trial court because that court
failed to put in writing its reasons for denying their postjudgment motion for
a remittitur, as required by Hammond v. City of Gadsden, 493 So. 2d 1374
(Ala. 1986). Second, they argue that the
award is excessive and outside the constitutional parameters set forth by the
Supreme Court of the United States in BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996). After the judgment was entered on the jury's
verdict, the Willifords filed both a motion for a new trial or a JML and a
motion for a remittitur styled as a "Motion to Review and Conduct Hearing
or Receive Additional Evidence or Both on Punitive Damage[s] Award." The trial court held a hearing and denied
both motions in a one paragraph order.
The order reads:
"This
matter coming before the Court on Defendants' Motion for New Trial or [JML] and
Motion to Review and Conduct Hearing or Receive Additional Evidence or Both on
Punitive Damage[s] Award and the Court having taken testimony, heard argument
from counsel and receiving exhibits and caselaw and considering the same, it is
hereby ordered that said motions are DENIED."
It is unclear
whether the trial court allowed the defendants to submit additional evidence on
the propriety of the amount of the punitive-damages award,9 but even if it did consider such
evidence and denied a remittitur, without a written statement of the reasons
for that denial the requirements of Hammond have not been
satisfied. As we explained in Love v.
Johnson, 775 So. 2d 127, 127-28 (Ala. 2000), such a written statement is
necessary before this Court can conduct a proper review on appeal:
"In Hammond[v. City of Gadsden, 493
So. 2d 1374 (Ala. 1986)], this Court required that a trial court 'reflect in
the record the reasons for interfering with a jury verdict, or refusing to do
so, on the grounds of excessiveness of the damages.' 493 So. 2d at 1379; see
also ALFA Mut. Ins. Co. v. Brewton, 554 So. 2d 953 (Ala.
1989). In Hammond, this Court
stated the reason for the requirement:
"'[T]he trial judge is better positioned to
decide whether the verdict is ... flawed [as excessive]. He has the advantage of observing all of the
parties to the trial--plaintiff and defendant and their respective attorneys,
as well as the jury and its reaction to all of the others. There are many facets of a trial that can
never be captured in a record, so that the appellate courts are at a special
disadvantage when they are called upon to review [a] trial [court's] action in
this sensitive area....'
"493 So. 2d at 1378-79."
When a trial
court fails to put in writing its reasons for denying a motion to review a
punitive-damages award for excessiveness, this Court's practice has been to
remand the cause for the trial court to enter an order in compliance with Hammond. See, e.g., Love, 775 So.
2d at 128; Spencer v. Lawson, 815 So. 2d 502 (Ala. 2001); Southern
Pine Elec. Coop. v. Burch, [Ms. 1020066, March 28, 2003] ___ So. 2d ___
(Ala. 2003). We therefore remand this
case to the trial court for the entry of an order that complies with the
requirements of Hammond. On
return to remand, the Willifords will have the opportunity to renew their
argument that the punitive-damages award is outside the constitutional
parameters set forth in Gore and Hammond/Green Oil Co. v.
Hornsby, 539 So. 2d 218 (Ala. 1989), should they still wish to do so.
IV.
The Willifords also argue that the trial
court erred in overruling their motion, made pursuant to Batson v. Kentucky,
476 U.S. 79 (1986), challenging the jury's composition. Specifically, the Willifords argue that the
trial court erred in placing the burden on them to show that the Emertons'
strikes were racially motivated, when the burden should have been on the
Emertons to show that the strikes were not racially motivated. This Court has consistently held that
"[t]he burden of persuasion is initially on the party alleging a
discriminatory use of peremptory challenges to establish a prima facie case of
discrimination." Thomas v.
Diversified Contractors, Inc., 578 So. 2d 1254, 1255 (Ala. 1991). Once a prima facie case has been established,
the burden then shifts to the other party to provide a legitimate
nondiscriminatory reason for the challenges.
Id. In the present case,
the trial court correctly placed the burden on the Willifords to establish a
prima facie case of discrimination. When
the only argument that the Willifords offered in support of their Batson
motion was the fact that the impaneled jury consisted of 1 white juror and 11
black jurors, the trial court concluded that the Willifords had not established
a prima facie case of discrimination and denied the motion.
A trial court's ruling on a Batson
motion is entitled to great deference, and an appellate court will not reverse
a judgment because of such a ruling unless that ruling is shown to be clearly
erroneous. Ex parte Branch, 526
So. 2d 609, 625 (Ala. 1987). The
Willifords have failed to make such a showing.
In Sharrief v. Gerlach, 798 So. 2d 646, 655 (Ala. 2001), this
Court stated that "'"'it is important that the defendant come forward
with facts, not just numbers alone, when asking the [trial] court to find a
prima facie case of ... discrimination."'"' (Quoting McElemore v. State, 798 So.
2d 693, 696 (Ala. Crim. App. 2000), quoting other cases.) This Court has repeatedly listed the
different ways a party can establish a prima facie case of discrimination for
purposes of a Batson claim; however, the Willifords instead relied upon
"numbers alone." For that
reason, the trial court properly determined that the Willifords had not
established a prima facie case and denied their Batson motion without
requiring the Emertons to provide race-neutral reasons for their strikes. See also Ex parte Trawick,
698 So. 2d 162, 168 (Ala. 1997) ("Without more, we do not find that the
number of strikes ... used to remove women from the venire is sufficient to
establish a prima facie case of gender discrimination.").
V.
Finally, the Willifords argue that the
trial court improperly allowed the trial to proceed over their objection that
the Emertons' counsel had a conflict of interest that prohibited him from
serving as their counsel in this matter.
At the conclusion of voir dire, the Willifords informed the court that
they had consulted with William Smith, an attorney who was then assisting the
Emertons' primary counsel, Charles Reynolds, with the trial, about representing
them in this case. Smith acknowledged
meeting with the Willifords about representing them in a case, but stated that
he did not remember it being the present case and that he never represented
them. Nevertheless, because of Smith's
consultation with the Willifords, the court found that Smith had a conflict and
excused Smith from the case.
While acknowledging that the trial court
promptly excused Smith from the case upon learning of the conflict, the
Willifords now argue that the court erred in failing also to excuse Reynolds
from the case. In support of this
proposition, the Willifords cite Green v. Montgomery County, 784 F.Supp.
841 (M.D. Ala. 1992) (holding that under Rules 1.9 and 1.10, Ala. R. Prof.
Cond., an attorney and his law firm were disqualified from participating in
litigation where the attorney had discussed the underlying facts of the case
with the opposing party while considering whether to represent that
party). However, the Emertons argue that
the record shows that the Willifords waived any objection they had to
Reynolds's continued participation in the trial.
After the court determined that Smith would
have to be excused from the case, the Willifords' attorneys, Susan Harmon and
Thomas Worthy, engaged in the following exchange with the court:
"THE
COURT: Now, being that he's not involved
anymore, are you waiving any objection to him having been here to this point,
though?
"MS.
HARMON: No, sir.
"THE
COURT: You're not?
"MS.
HARMON: I don't have a problem with him
being here at all as far as sitting here.
He hasn't questioned the jury.
"THE
COURT: Hold on. We're not talking about that. That's not what we're talking about,
Susan. What I'm asking is are you
waiving any conflict, any objection to him having been here to this point?
"MR.
WORTHY: We'll reserve that.
"THE
COURT: Y'all will reserve that?
"MR.
WORTHY: Well, what my concern is, is that
obviously if he's got a conflict of interest, he shouldn't have been in the
case at all.
"THE
COURT: Well, that's what we're about to
resolve.
"MR.
WORTHY: Okay.
"MS.
HARMON: What Judge is saying, up until
this point, Bill [Smith] has not questioned the jury or spoken to them. I don't have a problem with that.
"THE
COURT: Yeah, that's what I'm talking
about. I just want to make sure that we
don't have any problem as to his appearance in this case for the [Emertons] up
to this point.
"MS.
HARMON: No.
"MR.
WORTHY: No, none at this point.
"MS.
HARMON: Because he has not even voir
dired the jury.
"THE
COURT: Okay. Well, then, Bill, I will have to excuse you
from this case, then.
"MR.
WORTHY: Thank you, Judge.
"THE
COURT: Okay. Thank you."
As this exchange indicates, the Willifords'
attorneys did not move the trial court to disqualify Reynolds. They did initially indicate that they would
not waive any objections associated with Smith's participation in the trial;
however, after discussing the matter further, the judge again stated that he
wanted "to make sure that we don't have any problem as to [Smith's]
appearance in this case for the [Emertons] up to this point." The Willifords' attorneys then responded
"No" and "No, none at this point" and the judge proceeded
with jury selection. At no point did the
Willifords object to continuing the trial.
Because they failed to object at that time, they cannot now raise the
issue on appeal.
VI.
The trial court's order denying the
Willifords' motion for a new trial is affirmed.
We remand the cause to the trial court, however, for that court to take
such steps as are necessary to enter an order in compliance with Hammond. The trial court is instructed to file a
return to this Court within 56 days of the release of this opinion, after which
the Willifords will have 14 days to file a supplemental brief, if they choose
to do so. The Emertons will then have
seven days to respond, and the Willifords may then file a reply brief within
seven days of the Emerton's response.
AFFIRMED IN PART; REMANDED WITH DIRECTIONS.
Houston, Lyons, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur.
1The $15
monthly fee for water covered only the first 3,000 gallons. The Emertons had to pay an additional amount
for any water they used in excess of 3,000 gallons.
2The
Emertons allege that the payment was to be applied first to fulfill their $200
mobile-home payment, with the remainder then being applied to the other
fees. However, there is no evidence
indicating that they informed the Willifords that the payment was so earmarked.
3At trial,
Scott Emerton gave contradictory testimony as to whether he received the
November 23 notice, the December 1 notice, or both. However, it is undisputed that he received at
least one of the notices while he was at the mobile home picking up mail.
5Rule 50,
Ala. R. Civ. P., as amended in 1995, renamed the "motion for a judgment
notwithstanding the verdict" as a "renewed motion for a judgment as a
matter of law."
6Rule 50,
Ala. R. Civ. P., as amended in 1995, renamed the "motion for a directed
verdict" as a "motion for a judgment as a matter of law."
7At the
close of the Emertons' case, defense counsel had moved for a "directed
verdict," actually a JML, see note 6, on the conversion count on the
theory that the Emertons had failed to prove ownership of any of the property
allegedly converted.
8The Emertons
concede that their failure to testify as to the value of the sentimental items
precludes them from recovering an award based on the actual or alleged
sentimental value of the items. See
Dependable Ins. Co. v. Kirkpatrick, 514 So. 2d 804 (Ala. 1987) (holding
that an award for compensatory damages cannot be based on speculation).
9"'[I]n
all cases wherein a verdict for punitive damages is awarded, the trial court
shall, upon motion of any party, either conduct hearings or receive additional
evidence, or both, concerning the amount of punitive damages.'" Byrd v. Petelinski, 757 So. 2d 400,
401 (Ala. 2000) (quoting § 6-11-23(b), Ala. Code 1975) (emphasis omitted).