Clark v. Cowart
Decision Date | 09 September 1988 |
Parties | Hoyt CLARK and Wallace Coile v. John Michael COWART and David F. Byers. 86-1371. |
Court | Alabama Supreme Court |
Elizabeth R. Jones, Birmingham, for appellants.
William J. Baxley, Charles A. Dauphin, and David McKnight of Baxley, Dillard & Dauphin, Birmingham, for appellees.
Defendants, Hoyt Clark and Wallace Coile, appeal from a judgment based on a jury verdict in favor of the plaintiffs, John Michael Cowart and David F. Byers, in an action based upon alleged false representations made by the defendants to the plaintiffs concerning the parties' involvement in a business deal to purchase and operate the Birmingham Airport Motel.
This action was originally filed on December 16, 1982, in the Circuit Court of Jefferson County. In addition to containing the fraud count, the complaint sought an injunction to prevent Clark and Coile from removing Cowart from his management position at the Birmingham Airport Motel; it also contained a count asking that the defendants Clark and Coile be required to specifically perform an agreement between them and the plaintiffs. The circuit court severed the fraud count and proceeded with Cowart and Byers's equitable claims, initially granting a temporary restraining order to prevent Cowart's removal as manager of the motel and then proceeding, without a jury, to hear Cowart and Byers's specific performance count.
The decision on the equitable claims was entered on February 2, 1983, and subsequently appealed to this Court. This Court affirmed the trial court's decision, which denied specific performance of the September 27, 1982, agreement but which restructured the corporation created to purchase and operate the motel. The restructuring was achieved by reissuing shares equivalent to the investment made by each contributor. Our opinion in that case, Clark v. Cowart, 445 So.2d 884 (Ala.1984), correctly relates the facts that surrounded not only the signing of the September agreement but the entirety of the dealings that transpired between Cowart and Byers and Clark and Coile as related to the purchase and management of the motel. We therefore adopt the statement of the facts expressed in Clark v. Cowart, supra, at 885-87. From a judgment based on a jury verdict returned in favor of Byers for $175,000 and in favor of Cowart for $325,000, and from the denial of their motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, or, in the alternative, for a remittitur, Clark and Coile appeal.
On appeal, Clark and Coile present five grounds for error:
1. That the trial court erred in ordering a jury trial when there was no valid written jury demand by any party;
2. That the trial court erred in denying defendants' motion for new trial based on highly prejudicial and improper remarks made by plaintiffs' counsel in closing argument (plaintiffs' counsel referred to defendants Clark and Coile as "crooks");
3. That the trial court erred in granting plaintiffs' motion in limine in regard to defendants' affirmative defense of settlement;
4. That the trial court erred in overruling defendants' motion for judgment notwithstanding the verdict or, in the alternative, a new trial, or, in the alternative, for a remittitur; and
5. That the trial court erred by its submission to the jury of issues of fact that had been settled by an adjudication on the merits in a court of equity and affirmed by the Alabama Supreme Court.
The first issue raised by Clark and Coile, that it was error for the trial court to grant a jury trial when there was no written demand made or submitted to the court below, is untimely. No objection was made by Clark or Coile either before, during, or after the jury trial was held on the merits of the case. Error was first alleged by Clark and Coile on appeal to this Court; the claimed error was, therefore, raised too late. See, generally, Haaker v. Lawson, 497 So.2d 99 (Ala.1986).
Likewise, counsel for defendants Clark and Coile failed to timely object to the remarks made by plaintiffs' counsel during closing argument. This Court in Hill v. Sherwood, 488 So.2d 1357 (Ala.1986), stated:
Hill v. Sherwood, supra, at 1359. The statements made by plaintiffs' counsel have not been shown to be so grossly improper and highly prejudicial as to fall within the exception to the general rule as stated in Hill v. Sherwood, supra.
Appellants' third contention of error is not well founded.
Super Valu Stores, Inc. v. Peterson, 506 So.2d 317, 321 (Ala.1987).
The trial court correctly ruled that any offers of compromise would be inadmissible. Super Valu Stores, Inc. v. Peterson, supra. We quote from the record below:
The appellants next contend that the trial court's denial of their motion for a directed verdict and their motion for judgment notwithstanding the verdict or, in the alternative, a new trial, or, in the alternative, a remittitur, was reversible error.
This Court, in Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 856 (Ala.1981), stated the standard for appellate review of motions for directed verdict:
See also Surrency...
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