Bailey v. Avera
| Decision Date | 09 March 1990 |
| Parties | W.D. BAILEY v. Ralph AVERA and Max Carroll. 88-1344. |
| Court | Alabama Supreme Court |
Joseph E. Sawyer, Enterprise, and Wendell W. Mitchell, Luverne, for appellant.
Frank J. Tipler, Jr. and John M. Pennington of Tipler and Tipler, Andalusia, for appellees.
Plaintiff, W.D. Bailey, sued Ralph Avera and Max Carroll, alleging defamation, invasion of privacy, and intentional infliction of emotional distress. At the close of the plaintiff's evidence, the trial court directed a verdict in favor of the defendants on the count alleging intentional infliction of emotional distress. The jury returned a verdict in the defendants' favor on the remaining counts. Bailey filed a motion for new trial, which was denied. Bailey appeals from the defendants' judgment.
Bailey presents two grounds for reversal: (1) That the trial court erred in giving certain jury charges and in refusing the plaintiff's requested written jury charges relating to defamation and invasion of privacy and (2) that the trial court erred in directing a verdict as to the count alleging intentional infliction of emotional distress.
The first issue raised by Bailey is not properly before this court. Rule 51, Ala.R.Civ.P., reads as follows:
"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."
Applying that rule, this Court has said:
"The fact that no objections were made to the court's charge precludes the appellant from assigning as error the trial court's instruction to the jury...."
Gavin v. Hinrichs, 375 So.2d 1063, 1064 (Ala.1979) (citations omitted). Bailey made no objection to the trial court's charge before the jury retired and is, therefore, precluded from assigning as error the trial court's jury charges on defamation and invasion of privacy.
This case was filed after June 11, 1987. Accordingly, the "substantial evidence" rule is the standard for review in this Court. See Ala.Code 1975, § 12-21-12. Therefore, the standard of review applicable to a directed verdict would be whether the nonmoving party had presented substantial evidence in support of his position. If he had not, then a directed verdict would be proper. § 12-21-12.
Viewed most favorably to the appellant, the evidence at trial showed the following: In October 1985, Bailey, as chairman of the board of deacons of Brantley Baptist Church, retained the services of an attorney, Merrill Shirley, to represent the church in a lawsuit unrelated to this proceeding. The fee arrangement between the church and Shirley was that Shirley was to receive 20% of any recovery, plus $500 for expenses. In April 1986, a jury returned a verdict for the church in the amount of $100,000. Shirley approached Bailey about settlement of the case and compensation for extra time in preparation for trial. The board of deacons subsequently agreed that any money recovered over $80,000 would be paid to Shirley as an attorney fee. On May 29, 1986, Shirley recovered $107,500 for the church ($100,000 plus $7,500 accrued interest). Upon receipt of the settlement funds, Shirley presented two checks to Bailey. One check, for $70,400, was from Shirley's trust account; the second check, for $10,000, was from Shirley's personal...
To continue reading
Request your trial
-
Life Ins. Co. of Georgia v. Johnson
...party presented substantial evidence in support of his or her position. If not, then a directed verdict is proper. Bailey v. Avera, 560 So.2d 1038, 1039 (Ala.1990). A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no dispu......
-
Bobo v. Tenn. Valley Auth., Civil Action No. CV 12-S-1930-NE
...Fiberglass Corp., 595 So.2d 443, 456 (Ala.1992); Rule 50, A. R. Civ. P.; K.S. v. Carr, 618 So.2d 707, 713 (Ala.1993); Bailey v. Avera, 560 So.2d 1038, 1039 (Ala.1990); Woodruff v. Johnson, 560 So.2d 1040, 1041 (Ala.1990); Timmerman v. Fitts, 514 So.2d 907, 910 (Ala.1987).Gant, 662 So.2d at ......
- Jones v. BP Oil Co., Inc.
-
Bobo v. Tenn. Valley Auth.
...Corp., 595 So. 2d 443, 456 (Ala. 1992); Rule 50, A. R. Civ. P.; K.S. v. Carr, 618 So. 2d 707, 713 (Ala. 1993); Bailey v. Avera, 560 So. 2d 1038, 1039 (Ala. 1990); Woodruff v. Johnson, 560 So. 2d 1040, 1041 (Ala. 1990); Timmerman v. Fitts, 514 So. 2d 907, 910 (Ala. 1987).Owens-Corning Fiberg......