Delmore v. Gonzales

• Decision Date: 17 December 2004
• Citation: Delmore v. Gonzales, 903 So.2d 140 (Ala. Civ. App. 2004)
• Parties: Juanita DELMORE and Augustus Gomez v. James GONZALES.
• Court: Alabama Court of Civil Appeals

903 So.2d 140

Juanita DELMORE and Augustus Gomez v. James GONZALES.

2030204.

Court of Civil Appeals of Alabama.

December 17, 2004.

Ellen T. Turner, Mobile, for appellants.

Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee. YATES, Presiding Judge.

On April 3, 2001, Juanita Delmore sued James Gonzales, her stepfather, in the Mobile District Court, alleging conversion of personal property left to her by her deceased mother's will. Delmore also alleged negligence and a breach of contract. On June 11, 2001, Delmore filed a petition to probate her mother's will in the Probate Court of Mobile County. On June 8, 2001, Augustus Gomez, Delmore's half-brother, sued Gonzales, his stepfather, in the Mobile Circuit Court, alleging conversion of personal property left to him by his mother's will. At some point, Gonzales was declared incompetent by the probate court and a conservator was appointed to represent his interests. On October 25, 2001, Gonzales's conservator petitioned the probate court to exempt $15,500 as a homestead, personal property, and family allowance pursuant to §§ 43-8-110 through 112, Ala.Code 1975. Pursuant to Rule 42(a), Ala. R. Civ. P., the three actions were consolidated in the circuit court.

During the trial of these actions, Gonzales objected to any attempt by Delmore or Gomez to testify as to the value of any item of their mother's personal property. Gomez had prepared a report that detailed each item of personal property that he alleged had been left to him and Delmore under their mother's will and assigned a dollar value to each one of those items; Gomez assigned values to the items of personal property partly based on his sentimental attachment to the items. Gonzales also objected to Gomez's value assessments contained in the report. During the trial, Gomez testified that he was familiar with the personal property that his mother owned because he lived with his mother when she married Gonzales and, after Gomez moved out of his mother's house, he frequently visited her. Delmore also testified that her mother had obtained many of the items of personal property before her mother had married Gonzales and that she was familiar with all of her mother's personal property.

At the close of Delmore and Gomez's case-in-chief, Gonzales moved for a judgment as a matter of law ("JML") pursuant to Rule 50, Ala. R. Civ. P., because Delmore and Gomez had not established the value of any of the items of personal property. The trial court granted this motion on October 9, 2003. Delmore and Gomez filed a timely notice of appeal. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Delmore and Gomez allege that the trial court improperly excluded a report prepared by Gomez that included a dollar value for each piece of personal property that they alleged was due to them under their mother's will. They also argue that the trial court improperly excluded from their claims of conversion $17,000 dollars in cash found in their mother's bedroom.

Our supreme court has stated:

"When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present `substantial evidence' in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992)."

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830 (Ala.1999).

The following occurred during oral arguments on Gonzales's motion for a JML:

"THE COURT: There is one issue I think is controlling whether or not the Plaintiffs can give — establish the question of value to go to the jury. If they cannot do that, I think the case is due to go out on the Defense's motion. If either one of the Plaintiffs wants to research that issue and think there is clear-cut law, that based on what is already presented before this jury that they have — that their clients could establish the value. I think — I will deny [Gonzales's] motion.

"I'll be very [candid], I don't think that there is. . . . The question for me to determine, in my opinion, is whether or not the personal property, the assets, the personal property in the home exceeds the statutory exemption.

". . . .

"[Counsel for Delmore]: Your Honor, what about the fact that we offered Exhibit Nine and you never ruled on what —

"THE COURT: Because of that particular issue, that's the issue. That's why I did not allow Exhibit Nine in based on that issue. I was not satisfied that I can allow the Plaintiffs to establish that value, that's the whole issue. If I would have allowed that, then I would automatically be denying [Gonzales's] motion, that's the issue.

". . . .

"THE COURT: We're taking that up now because that's the sole basis of his motion for a [judgment as a matter of law,] in my opinion.

". . . .

"THE COURT: . . . I think the law is that a Plaintiff — the owner can testify to the value of his or her property, an example, in a car accident, you can — say if my car was in an accident, I can tell you the fair market before and the fair market value afterwards. It doesn't matter if I have no expertise in that area, I can do that and I think they make an exception for that in the law, not only in this State but I think that's true in most jurisdictions. Can I get on the stand and tell the value of a car if I didn't — if I was involved in an accident and it was the other driver's car, I cannot give an opinion as to what I think was the fair market value before and after, because that's not my car and I've not laid a basis of my — the basis of my knowledge or expertise in that area. What you're asking me to do is to allow these Plaintiffs to give an opinion as to property that they're claiming, but not as yet been determined to be theirs. You're asking me to jump. Now if I accept the fact that it's their property, then I can and should allow them to give their opinion, but that has not been determined yet because before we can determine whose property it is, [Gonzales] has the right to do for a share, so that's why I stated prior to me even bringing the jury in, in the Court's opinion, we have to determine the value of the estate of Mrs. Gonzales at the time of her death, because they brought in the statutory exemption, which they're entitled to exercise. I don't know if I'm making myself clear or not. So if you can give me some fact — some law — not that the owner can give an opinion but that the Plaintiffs are individuals who are claiming the property can give an opinion, because what's based before me, they've stated that that's an opinion based on sentimental value and they think it's less than what it's actually worth but I've not allowed that actual exhibit into evidence because of that concern. And there was no testimony solicited from either Plaintiff as far as any particular item. The Plaintiff was relying on that exhibit that I've not allowed in because of the objection from the Defense counsel, so to me that's the issue.

". . . .

"THE COURT: It's the value. If whether or not someone can give the opinion — the best way I can phrase it is whether or not someone can give an opinion as to property that they're claiming is theirs.

". . . .

"[Counsel for Gonzales]: Okay. We also know that someone who does not own the property, unless properly qualified, cannot give the value of the property.

"THE COURT: I think that is the law in Alabama."

Rule 701, Ala. R. Evid., provides:

"If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."

Section 12-21-114, Ala.Code 1975, provides:

"Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion."¹

In Williamson v. Stephens, 577 So.2d 1272 (Ala.1991), our supreme court considered a case that is substantially similar to the present case. In Williamson, Williamson sued Stephens alleging conversion. 577 So.2d at 1273. Williamson's son had sold his house at which Williamson had stored some of his personal property. Stephens alleged that he had bought the son's house "contents and all." During the trial, Williamson tried to introduce a document that listed the items of personal property he had stored at his son's house. Williamson had also assigned a value to each item of personal property listed in the document. The trial court would not admit the list into evidence, and it granted Stephens's motion for a directed verdict² on the basis that Williamson had not proven the value of the items he alleged had been converted. Our supreme court cited this court's...