Cleveland v. Gilbert

• Decision Date: 08 May 1985
• Citation: Cleveland v. Gilbert, 473 So.2d 1075 (Ala. Civ. App. 1985)
• Parties: Richard CLEVELAND v. Abbie Cleo GILBERT, as executrix of the estate of Melvin Eugene Gilbert, deceased. Civ. 4648.
• Court: Alabama Court of Civil Appeals

Page 1075

473 So.2d 1075

Richard CLEVELAND v. Abbie Cleo GILBERT, as executrix of the estate of Melvin Eugene Gilbert, deceased.

Civ. 4648.

Court of Civil Appeals of Alabama.

May 8, 1985.

Rehearing Denied June 12, 1985.

Certiorari Denied Aug. 23, 1985

Alabama Supreme Court 84-1017.

James M. Sizemore, Jr. and Sarah Clark Bowers, Sylacauga, for appellant.

Ralph D. Gaines, Jr. and Robert B. Barnett, Jr. of Gaines & Cleckler, Talladega, for appellee.

BRADLEY, Judge.

Richard Cleveland and his father sued Abbie Cleo Gilbert as executrix of her husband's estate, based on injuries resulting from an automobile crash. The jury returned a verdict in favor of Cleveland for $4,000 and in favor of his father for $450. Cleveland appeals.

Cleveland appeals only on the basis of evidentiary error in the trial court. The law in Alabama is well settled that the party who prevailed in the trial court can appeal only on the issue of the adequacy of the damages awarded him, and the appeal can be brought only after he timely filed a motion for new trial which was overruled by the trial court. Prescott v. Fletcher, 379 So.2d 333 (Ala.Civ.App.1979), cert. denied, 379 So.2d 334 (Ala.1980). See also, Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980); Fallaw v. Flowers, 274 Ala. 151, 146 So.2d 306 (1962). Cleveland did not base his appeal on the adequacy of damages, nor did he even ask the trial court for a new trial. No issue having been presented to this court for decision, the judgment of the trial court is...