Boros v. Baxley

• Decision Date: 26 February 1993
• Citation: 621 So.2d 240
• Parties: George BOROS v. William J. BAXLEY, et al. 1910866.
• Court: Alabama Supreme Court

Page 240

621 So.2d 240

George BOROS v. William J. BAXLEY, et al.

1910866.

Supreme Court of Alabama.

Feb. 26, 1993.

Rehearing Denied May 28, 1993.

George Boros, pro se.

Stephen A. Rowe and E. Berton Spence of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.

MADDOX, Justice.

This is a legal malpractice action. The plaintiff, George Boros, acting pro se, presents five issues: whether the trial judge erred in (1) directing a verdict for the defendants; (2) refusing to recuse himself from the case; (3) denying Boros's request for a continuance; (4) granting the defendants' motion in limine as to punitive damages and damages for mental anguish; and (5) denying Boros's motion to amend his complaint. We affirm. ¹

Boros sued William Baxley, Charles Dauphin, and the law firm of Baxley, Stuart, Ward & Dillard, alleging legal malpractice; specifically, Boros alleged that in an earlier case they had failed to file his complaint within the statutory period of limitations. The underlying case involved Boros's purchase of real estate from Jack Shewmake. Boros had employed Gwen Palmer, an agent of the real estate company of Johnson-Rast & Hays, to help negotiate the purchase from Shewmake. After moving into the house, Boros found numerous problems.

Boros then retained the Baxley firm to sue Shewmake, Palmer, and Johnson-Rast & Hays on the basis of fraudulent misrepresentation. Shortly after filing suit, the Baxley firm terminated its relationship with Boros because of a dispute over attorney fees. The trial court in the underlying case entered a summary judgment for Palmer and Johnson-Rast & Hays, without stating a specific reason. Boros and Shewmake had settled their dispute before the summary judgment was entered. This Court affirmed the summary judgment, concluding that the applicable statute of limitations period had expired before the lawsuit was filed. Boros v. Palmer, 472 So.2d 1020 (Ala.1985). On October 4, 1985, Boros filed the present suit.

In this action, Boros presented his evidence to a jury. On the defendants' motion, the trial court directed a verdict against Boros on the basis that he had failed to show that he would have recovered against Palmer and Johnson-Rast & Hays in the underlying lawsuit alleging fraudulent misrepresentation had that case been timely filed. Boros appeals from the resulting judgment for the defendants. We affirm.

The Directed Verdict Issue

Initially, we note that a motion for directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. See, Rule 50(a), Ala.R.Civ.P.; Alabama Power Co. v. Williams, 570 So.2d 589 (Ala.1990); John R. Cowley & Bros., Inc. v. Brown, 569 So.2d 375, 376 (Ala.1990); J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). The ultimate question presented by the motion, of course, is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, supra, at § 8.37.

For actions filed on or before June 11, 1987, the applicable standard of review is the "scintilla evidence rule." Section 12-21-12(e), Ala.Code 1975; Maharry v. City of Gadsden, 587 So.2d 966 (Ala.1991). Under the "scintilla evidence rule" the nonmovant could defeat a directed verdict motion by showing "a mere gleam, glimmer, spark, or trace of evidence" supporting each element of his cause of action or defense. See, e.g., Gross v. Republic Steel Corp., 400 So.2d 383 (Ala.1981), and Gadsden Paper & Supply Co. v. Washburn, 554 So.2d 983 (Ala.1989).

Additionally, in reviewing a motion for directed verdict this Court must view all the evidence in a light favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw. Williams v. Allstate Ins. Co., 591 So.2d 38 (Ala.1991).

Concerning legal malpractice, this Court has stated:

"[I]n a legal malpractice case a plaintiff must prove, basically, the same [elements] that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So.2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So.2d 1176 (Ala.1985). Thus, the elements [a plaintiff] must prove in order to support his legal malpractice claim are a duty, a breach of that duty, an injury, that the breach was the proximate cause of the injury, and damages. Moseley; Tyree; and Herston v. Whitesell, 348 So.2d 1054 (Ala.1977). [Additionally,] [i]n a legal malpractice case, the plaintiff must show that but for the defendant's negligence he would have recovered on the underlying cause of action, Johnson v. Horne, 500 So.2d 1024 (Ala.1986), or must offer proof that the outcome of the case would have been different. Hall v. Thomas, 456 So.2d 67 (Ala.1984)."

McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So.2d 198, 199-200 (Ala.1991).

The tort of fraudulent misrepresentation under § 6-5-101, Ala.Code 1975, requires "(1) a false representation, (2) regarding a material existing fact, (3) which the plaintiff relies upon, and (4) damages proximately caused by the misrepresentation." Smith v. J.H. Berry Realty Co., 528 So.2d 314, 316 (Ala.1988); Ex parte Leo, 480 So.2d 572, 574 (Ala.1985); and see, Country Side Roofing & Sheet Metal, Inc. v. Mutual Ben. Life Ins. Co., 587 So.2d 987, 991 (Ala.1991).

On appeal, the defendants maintain that Boros failed to prove that "but for [their] negligence he would have recovered on the underlying cause of action," because, according to the defendants, Boros failed to prove that he relied on any representations made by Palmer. After carefully reviewing the record, we conclude that the defendants are correct.

Our review of the record reveals not even a scintilla of evidence that Boros relied on Palmer's representations. In fact, Boros's own testimony establishes that he disbelieved Palmer's assertions and relied instead on assertions made by Shewmake. Boros testified ² as follows:

"But, Monday or Tuesday night--I'm not sure which--she [Palmer] came over to our hotel, the Mountain Brook Inn, to give us an offer, to have us sign an offer, and I said, 'I'd like to talk to the owner-builder.' I said, 'because I want to confirm what you say. I know that real estate agents have a habit of huffing and puffing. I want to confirm what you say, and most importantly, I want to make doubly sure there is no flooding.'

"....

"We didn't sign it [the offer] until after I had talked with the owner-builder, Jack Shewmake. I told her [Palmer] I wouldn't sign it. I thought it was an offer, not a binding sale agreement, and I told her that.

"I talked with Shewmake on the phone from my room at the Mountain Brook Inn for twenty-some minutes and I said, 'I'm concerned because we've had some bad luck with houses. Is there flooding?' [Shewmake's answer]: 'Oh, no, no, no, no. That was from construction.' [Boros]: 'Is it a well built house?' [Shewmake's answer]: 'Indeed, I build only good houses. It's all in here.' [Boros]: 'Is it energy efficient?' [Shewmake's answer]: 'Oh, yes, yes, yes.' "

(R. at 199-203; emphasis supplied.)

Additionally, this Court has stated:

"To claim reliance upon a misrepresentation, the allegedly deceived party must have believed it to be true. If it appears that he was in fact so skeptical as to its truth that he placed no confidence in it, it cannot be viewed as a substantial cause of his conduct.... The undisputed fact that [the plaintiff] was unwilling to accept the statement of [the defendant] without verification is evidence that he did not rely on it."

Smith v. J.H. Berry Realty Co., 528 So.2d 314, 316 (Ala.1988). (Emphasis supplied).

As in Smith, we conclude that a factfinder could not have found that Boros relied on Palmer's representations, because, according to his testimony, "he was in fact so skeptical as to [their] truth that he placed no confidence in [them]," and because he "was unwilling to accept [Palmer's representations] without verification." Id. Because Boros failed to establish a necessary element of his underlying fraudulent misrepresentation claim, necessarily he failed to establish his legal malpractice claim. The trial court properly directed a verdict for the defendants.

The Recusal Issue

Boros argues that the trial judge erred in refusing to recuse himself from the case. According to Boros, the trial judge exhibited a "hostile, demeaning, and prejudiced or biased attitude" toward him. (Appellant's brief at 27-28.) Boros stresses several remarks made by the trial court and argues that these remarks establish prejudice directly resulting in the judge's entering a directed verdict for the defendants.

Initially, we note that a petition for a writ of mandamus is the proper method for challenging the denial of a motion for recusal. Ex parte Balogun, 516 So.2d 606 (Ala.1987). However, because this is a pro se appeal, we address the issue.

The law in this area is well settled. The Canons of Judicial Ethics apply to all judges in this State and have the force and effect of law. Ex parte Balogun, 516 So.2d at 609. Canon 3 C. states:

"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:

"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding...."

(Emphasis supplied.)

This Court has interpreted Canon 3 C. (1) to impose a "reasonable person in the judge's shoes" standard. In Henderson v. G & G Corp., 582 So.2d 529, 530 (Ala.1991), this Court stated:

"The test for recusal is whether a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would conclude that there is a reasonable basis for questioning the judge's impartiality."

However, a judge's recusal is not required by the "mere accusation of bias unsupported by substantial fact."...