Armstrong v. Roger's Outdoor Sports, Inc.

• Decision Date: 08 March 1991
• Citation: 581 So.2d 414
• Parties: Roger L. ARMSTRONG v. ROGER'S OUTDOOR SPORTS, INC. 88-1190.
• Court: Alabama Supreme Court

Page 414

581 So.2d 414

59 USLW 2571

Roger L. ARMSTRONG v. ROGER'S OUTDOOR SPORTS, INC.

88-1190.

Supreme Court of Alabama.

March 8, 1991.

Rehearing Denied May 10, 1991.

Zack Higgs, Huntsville, for appellant.

Wesley G. Smith and Danny D. Henderson, Huntsville, for appellee.

PER CURIAM.

Roger L. Armstrong purchased a boat, an engine for that boat, and a boat trailer from Roger's Outdoor Sports, Inc. ("Roger's Outdoor"). According to Armstrong, Roger's Outdoor represented to him before he bought the boat that the boat was "new" and that it had had "no prior owners"; later, Armstrong learned that the boat had had a prior owner. Armstrong filed an action against Roger's Outdoor, alleging fraud and misrepresentation in the sale of the boat. The jury returned a verdict for Armstrong, awarding him $3,625 in compensatory damages and $15,000 in punitive damages, and the trial court entered judgment on the verdict. Roger's Outdoor filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial and requested that the trial court reduce the award pursuant to Ala.Code 1975, § 6-11-23. Section 6-11-23 sets forth a procedure whereby a party, after a trial, is entitled to a hearing for post-verdict review of a punitive damages award and that section dispenses with any presumption of correctness in favor of such an award by the trier of fact.

Armstrong filed a motion requesting that the trial court declare § 6-11-23 unconstitutional. After considering this motion and holding a hearing pursuant to § 6-11-23, the trial court upheld the jury's verdict as to compensatory damages but eliminated the punitive damages award. Armstrong appeals, contending that §§ 6-11-23 and -24 violate article I, §§ 11 (right of trial by jury) and 13 (right through due process to remedy for injury) of the Alabama Constitution, as well as other Alabama and United States constitutional provisions.

In portions of §§ 6-11-23 and -24, the legislature has attempted to control some of the most inherently judicial functions exercised by the courts: a trial court's determination of how much deference to give to a jury verdict, the similar question of an appellate court's deference to a factfinder, and an appellate court's scope of review of a trial court's judgment. In previous instances of such legislative intrusion into the core of the judicial function, the courts have declared the attempt a violation of the constitutional mandate of separation of the powers of government. This, in our opinion, is the central question of this case.

The portions of § 6-11-23 to which we refer read as follows:

"(a) No presumption of correctness shall apply as to the amount of punitive damages awarded by the trier of the fact.

"(b).... After such post verdict hearing the trial court shall independently (without any presumption that the award of punitive damages is correct) reassess the nature, extent and economic impact of such an award of punitive damages, and reduce or increase the award if appropriate in light of all of the evidence."

Section 6-11-24 reads in its entirety:

"(a) On appeal, no presumption of correctness shall apply to the amount of punitive damages awarded.

"(b) The appellate court shall independently reassess the nature, extent and economic impact of such an award and reduce or increase the award if appropriate in light of all of the evidence."

Section 42 of the Alabama Constitution of 1901 reads:

"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

Section 43 reads:

"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

The appellant has not raised these sections of the Constitution as grounds for overturning the statutes. Normally, a court will not hold a statute unconstitutional except on a basis specifically argued by a party and necessarily presented in the case. If "no considerations of public policy or morals are involved[, a] party may ... waive a rule of law, or statute, or even a constitutional provision." Alabama Terminix Co. v. Howell, 276 Ala. 59, 62, 158 So.2d 915 (1963). This case presents a unique situation, however, because, if we were to reject the constitutional arguments raised by the appellant, we would presumably be required by the statutes to "independently" review the verdict and judgment with "no presumption of correctness" as to either the judgment of the trial court or the verdict of the jury, which in this case was "the trier of the fact." If the portions of these sections that we have quoted above violate the principle of separation of powers, that violation affirmatively intrudes into the judicial process even though §§ 42 and 43 of the Constitution have not been argued. Therefore, we must consider these questions of deference to the trier of fact and to the trial court.

In 1915, the legislature passed two acts with provisions strikingly similar to the ones at issue. Acts 1915, No. 656, p. 722, amended § 2846 of the Code of 1907. ¹ After providing for the right to appeal from the grant or refusal of a motion for new trial and prescribing the procedure for such an appeal, the act concluded: "And no presumption in favor of the correctness of the judgment appealed from, shall be indulged by the appellate court." Similarly, Acts 1915, No. 722, p. 824, amended § 5359 of the Code of 1907. The act required a party to demand a jury trial in order to receive one, and then made the following provision:

"Either party to a cause tried by the court without the intervention of a jury, may present for review the finding of the court on the evidence, and the Supreme Court, or Court of Appeals shall review the same with no presumption in favor of the finding of the trial court on the evidence, and if there be error, shall render such judgment as the court below should have rendered, or reverse and remand the cause for further proceedings as the Supreme Court or the Court of Appeals may deem right."

The "no presumption of correctness" portion of these two statutes was soon held inoperative on the ground that, if given effect, the provisions would violate the principle of separation of powers. Regarding Act No. 722, the Court said that the provision denying any presumption of correctness "can only apply where the opportunities of this court to consider the evidence is the same as the trial court, that is, when the evidence was taken by deposition." Hackett v. Cash, 196 Ala. 403, 405, 72 So. 52, 53 (1916). The Court continued:

"The Legislature evidently intended, by this act of 1915, to provide for trials without a jury in all courts unless it was demanded, and to do away with the necessity of excepting to the finding or conclusion upon the facts in order to review the same in the appellate court, but did not mean to override a long line of the decisions of this court as to what weight would or would not be accorded the conclusion of the trial court upon the facts. Moreover, if it was otherwise intended, it would be an invasion of the judiciary to require this court to disregard the finding of the trial court upon facts when said trial court had a better opportunity to pass upon and consider the evidence than the appellate court."

(Emphasis added.)

This construction of Act No. 722 was followed in Finney v. Studebaker Corp. of America, 196 Ala. 422, 72 So. 54 (1916). In Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1916), a similar holding was entered regarding the attempt of Act No. 656 to dispense with the presumption in favor of the trial court's ruling on a motion for new trial. In that case, the trial court had denied the defendant's motion for new trial, and this Court said:

"The record has been carefully examined; and while it may be conceded that the preponderance of the evidence was favorable to the defendant, yet in a case of this character, where the evidence was in conflict, the court is not called upon to set aside the verdict because it may not correspond with its opinion as to the weight of the evidence. We deem it unnecessary to discuss the testimony, but after a careful review of it we are not persuaded, under the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 South. 738, that a reversal should be rested upon this action of the court. The trial court had the witness [sic] before him, and had the advantage of observing their manner and demeanor on the stand. Under the long-established rule of this court in such circumstances, the presumption is in favor of the correctness of his ruling. This rule has not been changed by recent legislative enactment.--Acts 1914, p. 722. The reasoning in the cases of Hackett v. Cash, 196 Ala. 403, 72 South. 52, and [ Finney v. Studebaker Corp. of America ], 196 Ala. 422, 72 South. 54, applies to the above cited act."

199 Ala. at 390, 74 So. at 380 (emphasis added).

In Broadway v. State, 257 Ala. 414, 60 So.2d 701 (1952), the Court reaffirmed these principles, striking down a statute that required a trial court to grant a mistrial when a prosecutor commented on a defendant's failure to testify. This Court described the effect of the statute:

"This was supposed to make it mandatory upon the circuit court to grant the motion for a new trial when any such comment is made during the progress of the trial, although no objection was made to such comment, and it may not appear that the comment...