Bethune v. City of Mountain Brook

• Decision Date: 02 July 1976
• Parties: Louise L. BETHUNE et al. v. CITY OF MOUNTAIN BROOK, a Municipal Corp. SC 1456.
• Court: Alabama Supreme Court

Page 148

336 So.2d 148

Louise L. BETHUNE et al. v. CITY OF MOUNTAIN BROOK, a Municipal Corp.

SC 1456.

Supreme Court of Alabama.

July 2, 1976.

Rehearing Denied Aug. 20, 1976.

Donald L. Collins and A. Eric Johnston, Birmingham, for appellants.

J. M. Breckenridge, Michael C. Quillen and L. Vastine Stabler Jr., Birmingham, for appellee.

SHORES, Justice.

The issues raised on this appeal are set out at length in Justice Maddox' dissenting opinion.

We affirm the trial court in granting the City of Mountain Brook's motion for a new trial. See Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

The trial judge was of the opinion that '. . . the overwhelming evidence is against the plaintiff on each of the issues . . .' Therefore, to reverse the order granting the motion for a new trial, we must find that the great weight of the evidence '. . . plainly and palpably supports the verdict, which means that we will not reverse in such case unless the evidence presented at trial plainly and palpably shows that the trial court was in error.' Jones v. Strange, 289 Ala. 76, 79, 265 So.2d 860, 862 (1972).

The court noted in the prior appeal of this case, Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974), that there were many disputed facts surrounding the execution of the contract between the Board of Education and the plaintiffs and the role of the City of Mountain Brook in connection with this contract. We held summary judgment was inappropriate. In reviewing the evidence adduced after a full trial of this cause, we are not led inescapably to the conclusion that the trial court was plainly and palpably wrong in granting the motion for a new trial.

Another reason given by the trial court for granting the motion for a new trial was the conduct of counsel for the plaintiffs in engaging in 'grossly improper and highly prejudicial' final argument. The trial court cited specific instances of what it considered improper argument and found the effect of the statements to be ineradicable. We have held on numerous times that '. . . the action of the court in granting a motion for a new trial cannot be based upon argument of counsel, unless the remarks are grossly improper and highly prejudicial to the opposing party.' Louisville & Nashville R. Co. v. Sullivan Timber Co., 126 Ala. 95, 104, 27 So. 760, 763 (1899). In this regard, much is left to the discretion of the trial judge. As this court said in Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 469, 91 So.2d 828, 829 (1957):

'The trial judge was present and was in a position to observe the manner of counsel and the countenance and expressions of the jury and the things complained of which transpired. In other words, the trial court, in acting upon the motion, was in possession of data and circumstances which are not and could not be presented by the record to this court. For this reason, we cannot disturb the conclusion reached unless we can say that it affirmatively appears from the great weight of the evidence and the surrounding facts and circumstances that this conduct did not influence the jury in the rendition of the verdict either as to result or amount . . .'

While we might be constrained to agree with the trial judge that the cumulative effect of the improper argument demands a new trial, we cannot apply, on review, the same test as did the trial court. Before it was data which we do not and cannot have. We must determine whether it affirmatively appears from the great weight of evidence and surrounding facts and circumstances that the improper argument did not influence the jury. The record is devoid of any such affirmative showing. Therefore, the judgment of the trial court in granting the City's motion for a new trial is affirmed.

AFFIRMED.

HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

MADDOX, FAULKNER and JONES, JJ., dissent.

MADDOX, Justice (dissenting).

This case is here on appeal for the second time. In this Court's prior decision, Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974), the questions raised were stated as follows:

'1. Can a municipality agree to permit a real estate developer to file a subdivision plat at a later time?

'2. Can a municipality enter into an oral agreement?

'3. Were there disputed material facts presented which would prevent the entry of a summary judgment?

'The Bethunes (appellants) owned property adjacent to property bought by the Board of Education of the City of Mountain Brook from Nelson Weaver Mortgage Co., Inc. for a school. The Bethunes and the Mountain Brook Board of Education entered into an agreement in which the Bethunes agreed to build two streets across their property to the school property.

'One of the conditions of the purchase agreement made by and between the Mountain Brook Board of Education and Nelson Weaver Mortgage Co., Inc. was 'that Bethune Drive and Crosshill Road shall be extended and completed on or before December 31, 1965 . . .' across the property owned by the Bethunes. The Bethunes entered into a written contract with the Board of Education wherein they agreed to 'cause Bethune Drive and Crosshill Road to be extended and completed in strict compliance with the requirements of the City of Mountain Brook as public streets . . . said Bethune Drive and Crosshill Road to be located as shown in that certain map designated as Preliminary Plan of Westbury Addition to Mountain Brook . . . a copy of which has heretofore been filed with the Planning Commission of the City of Mountain Brook . . . and said Bethune Drive and Crosshill Road, as shown on said map as aforesaid, shall be dedicated to public use upon final approval by the Planning Commission of the City of Mountain Brook.'

'The Bethunes built the streets. They were dedicated to the City. The Bethunes claim that when the City accepted dedication of the streets, the City approved the plat and agreed to allow them to file the subdivision plat at a later date. The City refused to accept the plat when the Bethunes offered to file it in 1971. The Bethunes subsequently filed this lawsuit, claiming damages because of the alleged breach by the City of its agreement to allow the late filing. The City answered the suit and admitted that it accepted the streets on March 27, 1967. The City also admitted that it had denied, in December 1971, the property owners' request to admit the subdivision plat to be recorded, however, the City denies that it made any agreement to allow the plat to be recorded at a later time.

'The City also says that if any agreement was made, it was void because: (1) it was not in writing as required by Title 37, § 467, Code of Alabama, 1940; (2) the approval of subdivision plats is a legislative function and any attempt by one council to bind the exercise of that function would be void and contrary to public policy.'

After remand of the original appeal, the case was tried before a jury, which returned a verdict in the sum of $400,000 in favor of the plaintiffs. The trial judge granted a motion for a judgment notwithstanding the verdict filed by the City and in the alternative, he ruled that the City was entitled to a new trial.

On the first appeal of this case, this Court, discussing some of the disputed facts, said:

'According to the pleadings and the affidavits, as we view them, the Bethunes claim they received approval of their plat (with a deferred filing date) in consideration of their dedication of the two streets to the City. There is some evidence that the City was vitally interested in getting the two streets opened up to Mountain Brook High School. The City does not necessarily deny this, but says that the Bethunes were merely complying with the contractual obligation made by and between them and the Board of Education. These are disputed facts. This dispute over the facts shows that this was an inappropriate case for summary judgment. Rule 56, Alabama Rules of Civil Procedure. Therefore, we think the trial court erred in granting the City's motion for summary judgment.

'If the Bethunes can prove their claim that the City accepted the streets and impliedly agreed to give something in return, the Bethunes would be entitled to recover the reasonable value of the benefits which the City has accepted, used and retained.'

'The City cannot escape payment to the Bethunes for what it received from them, that is, if the Bethunes can prove their claim of an implied contract. Since many of the facts are seriously disputed, however, this opinion should not be construed as holding that there was an implied contract or that this Court believes the facts are favorable to one side or the other.'

In granting Mountain Brook's motion for a judgment notwithstanding the verdict, the trial court gave five reasons:

(1) The evidence was undisputed that the plaintiffs entered into a contract with the Board of Education of the City of Mountain Brook, and 'it is now clear that there is no dispute that the pre-existing contract was executed, was supported by adequate consideration, and that the consideration given by the plaintiffs in support of that contract is the same as the consideration claimed by the plaintiffs to support this action.'

(2) That 'the judgment (sic) is based only on evidence which tends to vary or add to the official minutes of the City Council.'

(3) That the 'action allegedly taken by the City is outside the power of the City Council.'

(4) That the alleged agreement was not the result of a corporate act.

(5) That the plaintiffs presented no evidence that the dedication of the streets resulted in a benefit to the city.

I will discuss each reason separately.

The first reason given by the trial judge in support of his action was that the plaintiffs were obligated to dedicate the streets under a pre-existing contract with the Mountain Brook Board of Education, the trial court finding that 'after six days of trial,...