Allen v. Fountain

• Decision Date: 20 December 2002
• Citation: 861 So.2d 1104
• Parties: Robert W. ALLEN v. Miranka FOUNTAIN.
• Court: Alabama Court of Civil Appeals

861 So.2d 1104

Robert W. ALLEN v. Miranka FOUNTAIN.

2010910.

Court of Civil Appeals of Alabama.

December 20, 2002.

Michelle A. Meurer of Pearson, Cummins & Hart, L.L.C., Spanish Fort, for appellant.

Miranka Fountain, pro se.

THOMPSON, Judge.

Robert W. Allen appeals from an order of the Mobile Circuit Court granting Miranka Fountain a new trial in a civil action arising from business activities of the Mobile School of Massage Therapy, Inc. ("MSMT"). We reverse and remand with instructions.

In September 2000, Allen, through counsel, sued Fountain and William A. Morey, alleging that Morey had sold Fountain shares of stock in MSMT that were actually owned by Allen and that Fountain had subsequently sold the assets and stock of MSMT to a third party without Allen's consent and had not compensated Allen for the sale of the stock or the assets. Allen sought damages on theories of breach of contract, breach of fiduciary duty, and conversion. In December 2000, Morey and Fountain, acting pro se, filed a joint answer denying the allegations in the complaint and a counterclaim alleging that they had suffered financial losses arising from Allen's purportedly "purposeful and malicious" actions to damage MSMT; they later amended their counterclaim to add a breach-of-contract claim. Morey and Fountain later jointly filed a number of motions and responses to motions in the case and jointly filed a witness list in preparation for trial.

A jury trial was held between December 17, 2001, and December 19, 2001, on the parties' claims. During the trial, the trial court entered judgments as a matter of law on Allen's conversion claim and on Morey and Fountain's claim asserting that Allen had damaged MSMT; the remaining claims were submitted to the jury. On December 19, 2001, the jury returned a verdict in favor of Allen on all claims, awarding compensatory damages of $68,000 and punitive damages of $30,000.

After a judgment was entered on the jury's verdict, Morey, still acting pro se, filed a motion for a new trial; Fountain, who retained counsel, filed a separate motion, seeking a new trial, a judgment as a matter of law, or a remittitur. As grounds for seeking a new trial, Fountain alleged that the verdict was inconsistent and against the great weight of the evidence, that certain jurors had fallen asleep during the trial, and that she "was not allowed to speak on her own behalf while proceeding in the trial pro se." Morey subsequently filed a suggestion of bankruptcy, and all proceedings as to him have been automatically stayed. On April 18, 2002, after a hearing on Fountain's postjudgment motion, the trial court entered an order granting a new trial, stating as follows, in pertinent part:

"Upon review of several excerpts from the record and after careful consideration of the argument of counsel for defendant Fountain and for plaintiff, the court is of the opinion that in one or more instances during the trial Fountain was denied the opportunity to speak for herself and therefore, to avoid an unconstitutional infringement upon the rights of this party to be heard on her own behalf, ... a new trial must be granted as between plaintiff and defendant Fountain."

Allen's appeal to the Supreme Court from the trial court's interlocutory order granting a new trial, which order is appealable as of right (see § 12-22-10, Ala.Code 1975), was transferred to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Allen contends that the trial court abused its discretion in granting Fountain's motion for a new trial; he contends that the record is devoid of evidence tending to show that Fountain was denied the right to speak on her behalf. In support of the trial court's new-trial order, Fountain's sole contention is that she was improperly denied the ability to represent herself. Although "`[i]t is open to appellee to show error in the trial on any other of the grounds assigned in the motion,'" Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 291, 267 So.2d 132, 139 (1972) (quoting Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 132, 81 So.2d 674, 675 (1955))(emphasis omitted), Fountain has not argued that any of the other grounds presented in her motion would support the new-trial order in this case. Thus, the sole question presented for review is whether the trial court abused its discretion in ordering a new trial on the alleged basis that Fountain "was not allowed to speak on her behalf" during the first trial. See Vaughan v. Oliver, 822 So.2d 1163, 1170 (Ala.2001)

(the grant or denial of a motion for a new trial is within the sound discretion of the trial court, and its ruling on such a motion will not be reversed unless that ruling constituted an abuse of discretion).

Under Rule 59(a), Ala. R. Civ. P., a new trial in a civil action may be granted for any reason for which new trials were granted in actions at law in Alabama before the adoption of the Alabama Rules of Civil Procedure, including the reasons stated in § 12-13-11, Ala.Code 1975. See Scott v. Farnell, 775 So.2d 789, 791 (Ala. 2000)

. Among these grounds is "[e]rror of law occurring at the trial and properly preserved by the party making the application." § 12-13-11(a)(8), Ala.Code 1975. In other words, a trial court does not err in granting a new trial if it properly finds (1) that an error occurred in the preceding trial, and (2) that the party seeking the new trial "properly preserved" the issue.

The record does not contain a transcript of the entire trial, but is limited to the proceedings during voir dire, the parties' sidebar conferences with the trial judge before and during the trial, and the parties' arguments on dispositive motions presented during the trial. At the beginning of the trial, with all of the parties present, the trial court asked Morey, "[A]re you going to be the principal spokesman here?" Morey answered in the affirmative. When asked whether Morey would "do the questioning... on behalf of [him]self and Ms. Fountain," both Morey and Fountain responded "Yes." The trial court then explained to the parties that he would "allow a spokesman for each side—the attorney on the Plaintiff's side, Mr. Morey on the Defense side—to give [an] opening statement, to last not more than ... five minutes." The trial court stated that testimony would follow opening arguments, and at the end of the testimony a period would be allotted for closing arguments, noting that "Plaintiff's side goes first and last" and "The Defense goes in-between."

Later, during voir dire, the trial court stated that Fountain and Morey "will be representing themselves," and that "Morey will handle the interrogation of any witnesses." The trial court also asked Morey to identify for the jury the people who might be called as witnesses, and those people were identified as being "potential witnesses for the Defense." The trial court then allowed questioning of the venire by Allen's attorney and by "the Defendants... through Mr. Morey," after which a jury was struck. Although Fountain was present at all of these proceedings, she did not object to the trial court's treating of Morey as representing her interests as well as his own.

The reporter's transcript resumes during a sidebar conference at the close of Allen's case, at which time Allen's counsel filed various dispositive motions, which were denied. The trial court then asked whether "the Defense, the Defense being on behalf of William Morey and Miranka Fountain, ha[d] any motions to file." At that time, Morey responded that he had not had time to put together any motions, but that he would object to Allen's introduction of corporate statutes that had not been introduced up to that point as a basis of liability. The trial court then asked Morey to explain the factual basis of Morey and Fountain's counterclaim, and Morey again spoke on behalf of the two defendants. The trial court asked whether MSMT had been sold in July, and Fountain answered, "Yes, it was"; the trial court then asked what services Fountain might have been authorized to render and to receive compensation for after that sale, but the trial court expressly directed its question to Morey, noting that "Mr. Morey is handling the presentation for the two of you." There is no indication that Fountain objected to the trial court's statement, nor to its subsequent statement that 25 minutes would be allotted to "each side"—and that she and Morey together were considered one side—for closing arguments.

The transcript then discloses the sidebar conference held before closing arguments and the trial court's jury charge. During that conference, Morey asked a question concerning when to suggest a dollar figure as damages on the counterclaim, at which time the trial court responded that Morey could present that figure during closing argument just as Allen's attorney would seek a sum in her "opening argument," i.e., her initial closing argument. When Morey asked whether he would have an "opening argument," the trial court responded, "You only get one time," indicating that there would be no rebuttal argument from ...