Charter Hosp. of Mobile, Inc. v. Weinberg

• Decision Date: 12 January 1990
• Citation: 558 So.2d 909
• Parties: CHARTER HOSPITAL OF MOBILE, INC. v. Sheldon R. WEINBERG. 88-639.
• Court: Alabama Supreme Court

Page 909

558 So.2d 909

CHARTER HOSPITAL OF MOBILE, INC. v. Sheldon R. WEINBERG.

88-639.

Supreme Court of Alabama.

Jan. 12, 1990.

Rehearing Denied Feb. 9, 1990.

Davis Carr and Forrest C. Wilson III, Mobile, for appellant.

Jim H. Fernandez of Allen & Fernandez and Russell S. Terry of Feibelman, Shulman & Terry, Mobile, for appellee.

PER CURIAM.

Dr. Sheldon R. Weinberg sued Charter Hospital of Mobile, Inc. ("Charter"), for damages based on wrongful termination of employment and on conversion of a treatment program for people suffering from drug abuse or alcoholism. He sought punitive damages on each claim. The jury returned the following verdict:

"We the jury find for [Dr. Weinberg] on the claim for wrongful discharge and assess compensatory damages in the amount of $10,000.

"We the jury find in favor of [Dr. Weinberg] on the claim for conversion and assess compensatory damages in the amount of $142,000.

"We the jury assess punitive damages against [Charter] in the amount of $107,000."

Prior to the submission of the case to the jury, Charter had filed a motion for a directed verdict as to each count. Those motions were denied. After the jury verdict Charter filed a motion for judgment notwithstanding the verdict as to each count. The trial court granted Charter's motion for judgment notwithstanding the verdict as to the wrongful termination count only. Charter now appeals from the judgment based on the verdict on the conversion count. Dr. Weinberg did not cross-appeal from the judgment notwithstanding the verdict on the wrongful termination count; therefore, for purposes of this appeal, the wrongful termination count was a "bad" count.

In Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala.1981), we addressed the effect of a general verdict when a good count and a bad count were submitted to a jury:

"[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count."

See, also, National Security Fire & Casualty Co. v. Vintson, 454 So.2d 942 (Ala.1984); Lawrence v. Lackey, 451 So.2d 278 (Ala.1984); and Cincinnati Ins. Co. v. Little, 443 So.2d 891 (Ala.1983).

We have not been cited to, nor can we find, a case involving special verdicts for compensatory damages and a general verdict for punitive damages when a good count and a bad count have both been submitted to the jury and the plaintiff has sought to recover punitive damages on both the good count and the bad count. We hold that the trial court cannot presume that the punitive damages verdict was returned on the good count, when the defendant properly challenged the bad count by a directed verdict motion and a motion for judgment notwithstanding the verdict, as specified in Aspinwall. Therefore, insofar as the judgment awards punitive damages, it must be reversed.

Charter also sought a new trial on the conversion count or, in the alternative, a remittitur of compensatory damages for conversion, which the trial court denied. We affirm this action of the trial court.

The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So.2d 793 (Ala.1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial.

"When a jury is the trier of fact, it is not for the trial judge, nor an appellate court, to attempt to determine with mathematical certainty that all of the various elements of evidence offered by the parties regarding specific costs and credits precisely equal the amount of the jury's verdict. We do not have trial by computer, nor do we have post-trial, or appellate, review by the computer. The reviewing court does not substitute its own judgment as to the amount of damages for that of the trier of fact."

G.M. Mosley Contractors, Inc. v. Phillips, 487 So.2d 876, 879 (Ala.1986). See, also, Hollis v. Wyrosdick, 508 So.2d 704 (Ala.1987).

"Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust."

Campbell v. Burns, 512 So.2d 1341, 1343 (Ala.1987). (Citation omitted.) See, also, Ashbee v. Brock, 510 So.2d 214 (Ala.1987); Jawad v. Granade, 497 So.2d 471 (Ala.1986); and White v. Fridge, supra.

In its brief, Charter concedes that there was evidence from which the jury could have determined that Dr. Weinberg had a copyright covering the treatment program. Charter, however, contends that the amount of the jury award--$142,000 compensatory damages--for the conversion of the treatment program is not supported by the evidence.

The trial court charged the jury as follows:

"The damages recoverable for the conversion is the value of the property converted. That would be the common law copyright or trade secret at the date of the conversion or the value of the property at any time between the date of the conversion and up until the time of trial, whichever is greater, with interest thereon at the rate of six percent per annum from the time of the conversion up until the time of trial."

See Alabama Pattern Jury Instructions, No. 39.01. ¹

After a thorough review of the record, we find that no evidence of the kind ordinarily used to prove the value of property was introduced. It appears that such evidence of value, even of an intangible item such as a treatment program, should have been available from the sales proposals offered by Recovery from Chemical Dependency, Inc., ² to other facilities, but such evidence was not presented. However, viewing the evidence most favorably to Charter and indulging such reasonable inferences as the jury was free to draw from the evidence, we hold that there was some evidence in the record, uncontradicted and not objected to, that would have allowed the jury to award $100,000 plus six percent (6%) interest per year from the date of the conversion to the date of trial, thereby sufficiently supporting the jury's award of $142,000 in compensatory damages. ³ See National Surety Corp. v. Applied Systems, Inc., 418 So.2d 847 (Ala.1982). Therefore, we affirm the trial court's judgment insofar as it awarded compensatory damages for conversion.

Charter contends that there was no evidence to support the imposition of punitive damages for conversion. In order for punitive damages to be awarded for conversion, the law requires that the conversion be done in known violation of the owner's rights. See Roberson v. Ammons, 477 So.2d 957 (Ala.1985); Ott v. Fox, 362 So.2d 836 (Ala.1978).

This case was filed prior to June 11, 1987; therefore, the applicable standard of review is the "scintilla rule." See Ala.Code 1975, § 12-21-12. Thus, the issue before us is whether there is a scintilla of evidence that Charter knowingly converted the treatment program that Dr. Weinberg had developed.

Dr. Weinberg presented evidence at trial that he had developed the treatment program prior to his employment by Charter and that Charter had continued to use that treatment program subsequent to his termination without his consent (after he had demanded that Charter stop using it). Furthermore, Dr. Weinberg presented evidence that, prior to his employment, he had a discussion with Charter's administrator concerning the ownership rights to the treatment program and also presented to the administrator a job description, which recited that Dr. Weinberg was retaining ownership rights to the treatment program. Dr. Weinberg contends that any continued use of the treatment program by Charter after his termination would necessarily have been willful, because his ownership of the treatment program was an express term of his employment contract and was confirmed in his job description.

Charter does not deny its continued use of portions of the treatment program after Dr. Weinberg was terminated. Rather, Charter's administrator testified that it was his understanding that Dr. Weinberg had been hired to develop a treatment program for Charter and that Charter's staff thought it had every right to continue using the treatment program. Furthermore, the administrator testified that there was never any discussion with Dr. Weinberg concerning ownership rights to the treatment program and that he had never seen or approved a job description for Dr. Weinberg.

Based on the foregoing, we find that Dr. Weinberg presented at least a scintilla of evidence that Charter knew that it had no right or claim to the treatment program in question, but continued to use it in known violation of Dr. Weinberg's rights. Therefore, there existed a question of fact for the jury to determine as to whether Charter willfully converted the treatment program so as to justify the imposition of punitive damages. We recognize the conflicting statements concerning this issue; however, the credibility of the testimony presented by the witnesses is for the jury's determination. See Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979).

Having affirmed the compensatory damages award on the conversion count, we conclude that Dr. Weinberg's claim against Charter should be limited to such punitive damages, if any, as a jury on retrial may assess against...