Coastal Concrete Co., Inc. v. Patterson

• Decision Date: 09 January 1987
• Citation: 503 So.2d 824
• Parties: COASTAL CONCRETE COMPANY, INC. v. Thomas R. PATTERSON. 85-840.
• Court: Alabama Supreme Court

Page 824

503 So.2d 824

COASTAL CONCRETE COMPANY, INC. v. Thomas R. PATTERSON.

85-840.

Supreme Court of Alabama.

Jan. 9, 1987.

Rehearing Denied Feb. 20, 1987.

Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, for appellant.

Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.

BEATTY, Justice.

Appeal by defendant, Coastal Concrete Company, Inc. ("Coastal"), from a judgment against it based upon a jury verdict for plaintiff, Thomas R. Patterson, in plaintiff's action based upon fraud. We affirm.

The complaint consisted of two counts. Count Two became the victim of defendant's motion for a directed verdict; thus, only Count One was submitted to the jury. Count One alleged: ¹

"1. On or about May 1, 1983, the Plaintiff was an employee of Coastal Concrete Company, Inc., and on or about that same day, the Plaintiff was fired from his position with said Defendant. After firing the Plaintiff, the Defendant refused to pay the Plaintiff for his last week of work and the Plaintiff filed suit, representing himself, in the Small Claims Court of Baldwin County, Alabama.

"2. Soon after he was fired from his employment, the Plaintiff made application for unemployment compensation and the Defendant opposed said application.

"3. On or about June 24, 1983, the Plaintiff came to Court in the Small Claims Court of Baldwin County, Alabama, to pursue his claim for his last week's wages and the Defendant appeared in Court and agreed with the Plaintiff, pursuant to Plaintiff's Exhibit # 1, attached hereto and made a part hereof, that the Defendant would [instate] Plaintiff's unemployment compensation in return for the Plaintiff dropping his Small Claims Court case.

"4. In reliance upon the Defendant's representation that it would [instate] the Plaintiff's unemployment compensation, the Plaintiff dropped his suit in the Small Claims Court of Baldwin County, Alabama.

"5. At the time the Defendant represented to the Plaintiff that it would [instate] the Plaintiff's unemployment compensation, the Defendant had no intention of so [instating] said unemployment compensation and did, in fact, turn right around and appear in opposition to said [instatement] before the State of Alabama Department of Industrial Relations Unemployment Compensation Agency. Due to said opposition put forward by the Defendant, the plaintiff was denied his unemployment compensation.

"6. The Defendant misrepresented its intention to [instate] the Plaintiff's unemployment compensation, the Defendant knew that it had no intention of so [instating] the unemployment compensation at the time it made the misrepresentation to the Plaintiff. The Plaintiff relied on said misrepresentation to his detriment, and has suffered damages due thereto."

The jury returned a verdict in favor of plaintiff and awarded $27,153.14 as damages.

The recitations of Count One contain many of the essential facts; however, some additions are necessary.

It appears that Patterson's claim in district court was for lost wages in the amount of $444.79, which included $20.00 in travel expenses. While this case was pending, Patterson, a concrete truck driver, was notified that his separate claim for unemployment compensation had been denied, based on his employer's statement that he had failed to clean off the build-up material on his truck. Patterson, claiming extenuating circumstances, appealed from that ruling, and his appeal on the unemployment compensation claim was pending when his small claims case for lost wages came up for a hearing.

At the hearing in small claims court, Patterson appeared pro se, and Roland Snarr, an employee of Coastal, appeared for the company. A settlement was reached by the parties. According to plaintiff, he agreed to dismiss his lawsuit if Coastal would pay him half his last week's wages and have his unemployment compensation instated. The trial court, in fact, entered the following order in the case: "By agreement--Def. to lift opposition to unemployment--& pay pl. one half of wages and court costs." On the date of that entry, Patterson went to Coastal's Robertsdale office and signed a release that had been prepared for Coastal at the direction of one of its employees, Richard Summerville:

"I, Thomas R. Patterson, do hereby release Coastal Concrete from all claims in connection with Small Claims Court--Case Number 483--settled on above date. I have received a check (# 254) in the amount of $153.14 as agreed upon. Coastal Concrete agrees to have my unemployment [instated] as soon as possible."

At the hearing on Patterson's appeal from the denial of his unemployment compensation claim, Richard Summerville appeared for Coastal. His testimony at the hearing on appeal, however, was consistent with that on which the original denial of unemployment compensation was based, i.e., that Patterson had been discharged for failure to keep his equipment clean. On that basis, Patterson lost his appeal, and this lawsuit ensued.

On appeal, defendant presents a number of issues concerning the trial court's denial of its motion for a directed verdict at the close of the evidence; its denial of defendant's motion for judgment notwithstanding the verdict or new trial; the plaintiff's failure to refund the consideration he received before his rescission of the release entered into by the parties; and the failure of plaintiff to prove actual damages. We will consider these issues seriatim.

I.

Did the trial court err in denying defendant's motion for a directed verdict?

The answer to this question is dependent upon the presence or absence of "any evidence," or a scintilla thereof, of fraud. Allstate Enterprises, Inc. v. Alexander, 484 So.2d 375, 376 (Ala.1985).

"Fraud" is defined as (1) a false representation (2) of a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So.2d 752 (Ala.1981). If fraud is based upon a promise to perform or abstain from performing in the future, two additional elements must be proved: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, coupled with (2) an intent to deceive. Clanton v. Bains Oil Co., 417 So.2d 149 (Ala.1982).

The testimony bearing upon the existence of "any evidence" of fraud came from the testimony of Richard Summerville, from which we quote extensively here:

"Q. Would you read the note that the Judge put in the file there? Would you read that to the Jury?

"A. '6-24-83. By agreement, Defendant to lift opposition to unemployment and pay Plaintiff one-half of wages and court cost. Rebecca Wolf represents Plaintiff and will check with Coastal Concrete on lifting suspension. Otherwise court to enter judgment for either Defendant or Plaintiff for entire amount.' And initials.

"Q. It says on there 'By agreement, Defendant to lift opposition to unemployment.' Is that what it said?

"A. Yes, it did.

"Q. And let me show you Plaintiff's Exhibit Number One and does that appear to be on Coastal Concrete Company letterhead?

"A. Yes, it does.

"Q. Do you know who drew it?

"A. Diane White

"Q. Did she draw it at your direction?

"A. Yes, she did.

"Q. So you directed her to draw this agreement; is that correct?

"A. Yes, I did.

"Q. And does this say Coastal Concrete agrees to have my unemployment [instated] as soon as possible? Is that what the last line says?

"A. The last line, yes, sir.

"Q. And you directed her to prepare that; is that correct.

"A. Not in those words, I did not.

"Q. Well, you had better tell the Jury what words you told her to use then.

"A. To help him have his unemployment benefits [instated].

"Q. Well, that's what it says; doesn't it?

"A. It says, 'Agrees to have my unemployment [instated] as soon as possible.'

"Q. Your lady prepared this; didn't she?

"A. Yes.

"Q. At your direction?

"A. Yes.

"Q. She was working for the company when she prepared it; wasn't she?

"A. Yes, sir.

"Q. Agent of the company?

"A. Yes, sir.

"Q. And that is what y'all drew up for Mr. Patterson to sign in return for dropping his lawsuit; is that correct?

"A. Repeat.

"Q. That is what you all drew up in return for him dropping his lawsuit; is that correct?

"A. Yes, that is correct.

"Q. Well, I want you to look over there at that Jury and tell them what you have done to help him get his unemployment [instated].

"A. I did everything that he asked me.

"When Ronnie came to the office, and I can't remember what date it was, but it was after this letter was signed. And asked me that particular day what I had done to help him to date and I, in return, asked him what he wanted me to do and he didn't know and I had never been through it before and I didn't know.

"Within the next few days, I received notice to appear and that is what I did. That is all I knew to do, was to show up at the hearing.

"Q. So you didn't do anything to help him; did you?

"A. I just told you, I showed up at the hearing.

"Q. Showed up at the hearing and testified that he wouldn't keep his truck clean and that he had plenty of time to do it; is that right?

"A. Certainly, I was under oath to tell the truth.

"Q. Did you tell him that you were going to say all of this at the time that you drew up the agreement?

"A. No, I didn't. I didn't know what the questions would be.

"Q. You didn't know what the questions would be, you just, then I guess, drew up the agreement and agreed not even knowing what you were going to do? Correct?

"A. That is correct. I didn't know what I was going to do.

"I told Ronnie that I would help him but I had never been faced with this before. I didn't know what steps to take.

"Q. You had never testified before in an unemployment hearing?

"A. Not in regard to this.

"Q. Not in regard to this but you have testified; haven't you?

"A. In one other case.

"Q. In one other case. Well, don't you know that if you go over there and...