Se Environmental Infrastructures v. Rivers, 1060615.

Citation12 So.3d 32
Decision Date27 June 2008
Docket Number1060615.,1060643.,1060876.
PartiesSOUTHEAST ENVIRONMENTAL INFRASTRUCTURE, L.L.C. v. Larry RIVERS; Southeast Environmental Infrastructure, L.L.C. v. Doster Construction Company, Inc., Integral Building Group, L.L.C., and Metropolitan Gardens Developers, L.L.C.; Southeast Environmental Infrastructure, L.L.C. v. Larry Rivers et al.
CourtSupreme Court of Alabama

M. Christian King and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; and R. Larry Bradford and Shane T. Sears of Bradford & Sears, P.C., Birmingham, for appellant.

Brian Mosholder and Samuel Ingram of Carpenter, Ingram & Mosholder, Montgomery, for appellee Larry Rivers.

Stanley A. Cash and Joseph R. Duncan, Jr., of Huie, Fernambucq & Stewart, Birmingham, for appellees Doster Construction Company, Inc., Integral Building Group, L.L.C., and Metropolitan Gardens Developers, L.L.C.

SMITH, Justice.

These three appeals arise from an action Larry Rivers filed against Southeast Environmental Infrastructure, L.L.C. ("SEI"), and Metropolitan Gardens Developers, L.L.C., a joint venture consisting of Doster Construction Company, Inc., and Integral Building Group, L.L.C. (collectively "the joint venture").

Facts and Procedural History

Rivers was injured on October 8, 2004, while he was working as an independent contractor with SEI at the "Hope VI" job site in Birmingham. The joint venture was the general contractor for the Hope VI project, and it had contracted with SEI to install water and sanitary sewer lines on the project.

At the time of his injury, Rivers was working with two employees of SEI, Robert Dawson and Melvin Butler, to install sanitary sewer pipes. Just before Rivers's injury, Butler was using a trackhoe to lift an iron ductile pipe and move it into place in a trench in which Rivers was standing. According to Butler, Dawson had used a synthetic canvas strap to secure the pipe to the bucket of the trackhoe. As Butler maneuvered the trackhoe to move the pipe toward Rivers, the strap either slipped or broke between the pipe and the trackhoe, and the pipe struck Rivers in the head. Rivers suffered traumatic brain injury and other physical injuries; he was hospitalized for 21 days and incurred medical expenses of $207,000.

Rivers sued SEI and the joint venture, asserting, among other things, claims of negligence and wantonness and seeking compensatory and punitive damages. The joint venture filed a cross-claim against SEI, alleging breach of contract based on SEI's failure to defend and indemnify the joint venture as well as its failure to provide insurance coverage for Rivers's claims.

Before trial, the joint venture reached a pro tanto settlement with Rivers for $275,000. The joint venture and SEI agreed for the joint venture's cross-claim to be tried without a jury. The joint venture and SEI also agreed that the trial court could adopt, for the trial of the cross-claim, the evidence presented in the jury trial of Rivers's claims against SEI.

The jury returned a verdict against SEI after a five-day trial and awarded Rivers $1.1 million in compensatory damages and $400,000 in punitive damages, and the trial court entered a judgment on that verdict. The trial court then made written findings of fact and conclusions of law on the joint venture's cross-claim against SEI and entered a judgment holding that the joint venture was entitled to indemnification from SEI for the $275,000 settlement with Rivers. The trial court also entered a judgment awarding certain costs and attorney fees to Rivers and the joint venture.

SEI filed a postjudgment motion for a judgment as a matter of law ("JML") or, in the alternative, for a new trial. SEI also filed a motion for a remittitur of the compensatory-and punitive-damages awards and requested a hearing in accordance with the decisions of this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). The trial court scheduled those motions to be heard on December 1, 2006. The day before that hearing, however, the trial court informed the parties that it was postponing that part of the hearing addressing SEI's motion for a remittitur.

At the hearing on December 1, 2006, the trial court heard arguments regarding all postjudgment motions except the motion for a remittitur. Ten days later—without holding a hearing on SEI's motion for a remittitur—the trial court entered an order denying SEI's postjudgment motions for a JML, a new trial, and a remittitur.

Rivers then filed a motion requesting the trial court to set a hearing on SEI's remittitur motion. Although it stated that it was not waiving its request for a hearing on the remittitur motion, SEI filed a response to Rivers's motion arguing that the trial court did not have jurisdiction to hold a hearing on its remittitur motion because the court had already denied SEI's postjudgment motions for a JML, a new trial, and a remittitur. On January 9, 2007, the trial court entered an order stating that SEI's argument that the trial court did not have jurisdiction to hold a hearing on the remittitur motion was an attempt to delay the proceedings "for delay's sake." The trial court held that SEI either had waived its right to a hearing on its remittitur motion or had invited any error that resulted from the trial court's not holding such a hearing.

SEI timely appealed from the judgment on Rivers's claim (case no. 1060615), the judgment on the joint venture's cross-claim (case no. 1060643), and the judgment awarding costs and attorney fees (case no. 1060876).

Discussion

Case No. 1060615—Judgment on Rivers's Negligence and Wantonness Claims

I.

SEI first challenges the sufficiency of the evidence Rivers offered in support of his negligence and wantonness claims. SEI argues that Rivers failed to present substantial evidence that SEI was negligent or wanton and that SEI's negligence or wantonness proximately caused Rivers's injury.

As noted, Rivers's claims against SEI were tried before a jury, and the trial court denied SEI's postjudgment motions for a JML and a new trial. In its postjudgment motions, SEI presented the same sufficiency-of-the-evidence challenges it now makes on appeal.

"`In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party ....' Delchamps, Inc. v. Bryant, 738 So.2d 824, 831 (Ala.1999). See also Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344 (Ala.1992), and Mason & Dixon Lines, Inc. v. Byrd, 601 So.2d 68 (Ala.1992). A presumption of correctness attaches to a jury verdict, `if the verdict passes the "sufficiency test" presented by motions for directed verdict and a JNOV.' S & W Properties Inc. v. American Motorists Ins. Co., 668 So.2d 529, 534 (Ala.1995). (Rule 50(a), Ala. R. Civ. P., now designates a motion for a directed verdict as a motion for a judgment as a matter of law, and Rule 50(b) now designates a motion for JNOV as a renewed motion for a judgment as a matter of law.) This presumption is strengthened by a trial court's denial of a motion for a new trial. Christiansen v. Hall, 567 So.2d 1338 (Ala.1990). `This Court will not, on a sufficiency of the evidence basis, reverse a judgment based on a jury verdict unless the evidence, when viewed in a light most favorable to the [verdict winner], shows that the verdict was "plainly and palpably wrong and unjust."' S & W Properties, 668 So.2d at 534 (quoting Christiansen, 567 So.2d at 1341). `Whether to grant or deny a motion for new trial rests within the sound discretion of the trial court, and this Court will not reverse a ruling in that regard unless it finds that the trial court's ruling constituted an abuse of that discretion.' Colbert County-Northwest Alabama Healthcare Authority v. Nix, 678 So.2d 719, 722 (Ala.1995). `Without a showing of such an abuse, the trial court's ruling must be affirmed.' Id."

Liberty Nat'l Life Ins. Co. v. Sanders, 792 So.2d 1069, 1072 (Ala.2000).

A.

SEI argues that to show that SEI was negligent Rivers was required to present substantial evidence showing (1) that the synthetic canvas strap holding the iron pipe while it was being moved broke, and (2) that the strap, before it broke, "was visibly worn or frayed such that it was unreasonable for SEI to use it to lift the pipe on the day of the accident." (SEI's brief, p. 23.)

1.

We first address SEI's contention that there was not substantial evidence showing that the strap broke while Butler was lifting the pipe with the trackhoe.

"The definition of `substantial evidence' is well settled:

"`"`Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)."'

"Lincoln Log Home Enters., Inc. v. Autrey, 836 So.2d 804, 805 (Ala.2002) (quoting Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Ala.2000))."

Ex parte Williamson, 907 So.2d 407, 414-15 (Ala.2004).

Geral Moss, who worked for the joint venture, testified that he arrived at the job site as the ambulance was transporting Rivers to the hospital. He testified that he inspected the scene and that he saw "a broken strap in the ditch" Rivers was in when he was injured. Moss stated that when he saw the broken strap it was attached "probably midway of the piece of pipe that had fallen" and that the strap "had the frayed ends on it."

SEI claims that Moss's testimony cannot be considered as substantial evidence that the strap broke while the pipe was being moved, because Moss later testified as follows:

"Q. Let me ask you this, Mr. Moss. Are you able to swear to this jury that that strap that you saw in the ditch after the accident was the strap involved in the accident?

"A. No, I cannot tell you that, no."

Moss also testified,...

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