Ex parte Vincent

• Decision Date: 24 September 1999
• Citation: Ex parte Vincent, 770 So.2d 92 (Ala. 1999)
• Parties: Ex parte Donald J. VINCENT. (In re Donald J. Vincent v. First Alabama Bank.)
• Court: Alabama Supreme Court

770 So.2d 92

Ex parte Donald J. VINCENT.

(In re Donald J. Vincent v. First Alabama Bank.)

1980300.

Supreme Court of Alabama.

September 24, 1999.

Rehearing Denied March 3, 2000.

Robert F. Prince and Erby J. Fischer of Prince, Poole & Cross, P.C., Tuscaloosa, for petitioner.

Initial reply brief filed by Michael D. Smith, R. Cooper Shattuck, and Elizabeth F. Colwick of Hubbard, Smith, McIlwain, Brakefield, Shattuck & Browder, P.C., Tuscaloosa, for respondent.

Subsequent reply brief filed by R. Cooper Shattuck and Paige M. Carpenter of Rosen, Cook, Sledge, Davis, Carroll & Cade, P.A., Tuscaloosa, for respondent.

LYONS, Justice.

Donald J. Vincent sued First Alabama Bank (hereinafter "First Alabama") and his former wife, Betty Jo Vincent (hereinafter "ex-wife"), seeking damages based on allegations of negligence, breach of contract, conversion, and wantonness, all resulting from First Alabama's allowing the ex-wife unauthorized access to two safe-deposit boxes held by Vincent, one at First Alabama's Brookwood branch and the other at its Bessemer branch. Vincent alleged that his ex-wife wrongfully gained access to the safe-deposit boxes and stole $500,000 in cash that he says was in the boxes. A jury returned a verdict in Vincent's favor for $10,000 on his negligence claim.

Vincent moved for a new trial on the following grounds: (1) that the jury had awarded him inadequate damages; (2) that the trial court had improperly excluded from evidence a document that he says could have proved he was entitled to more in damages than the jury awarded; and (3) that the trial court had improperly denied his challenge of a prospective juror pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court denied his new-trial motion. The Court of Civil Appeals affirmed. See Vincent v. First Alabama Bank, 770 So.2d 86 (Ala.Civ.App.1998). We granted certiorari review.

Before the Court of Civil Appeals, Vincent contended that the trial court had erred in denying his motion for a new trial, making the same arguments he had presented to the trial court. In affirming, the Court of Civil Appeals held that the evidentiary issue and the Batson issue were not properly before it because those issues did not relate to the adequacy of the damages. In so holding, the court cited Nichols v. Perryman, 615 So.2d 636 (Ala.Civ. App.1992), and Ex parte Weyerhaeuser Co., 702 So.2d 1227 (Ala.1996), for the proposition that "a party who prevailed in the trial court can appeal only on the issue of adequacy of damages awarded." 702 So.2d at 1228. We granted certiorari review to consider the issue regarding the exclusion of the document. Based on that issue, we reverse and remand.

Vincent argues that the Court of Civil Appeals should have considered the evidentiary issue, because, he argues, the excluded document directly affected the question of adequacy of the damages. In support of his argument, Vincent cites Hicks v. Westbrook, 537 So.2d 482, 483 (Ala.Civ.App.1987), reversed in part on other grounds, 537 So.2d 486 (Ala.1988), which holds that an appellate court will consider an argument alleging evidentiary error at trial when it amounts to a challenge to the adequacy of the jury verdict. See, also, Dare Productions, Inc. v. State, 574 So.2d 847, 849 (Ala.Civ.App.1990) (holding that a plaintiff who wins at trial may appeal only those issues that concern the amount of damages the plaintiff recovered); Holloway v. Henderson Lumber Co., 203 Ala. 246, 82 So. 344 (1919) (holding that the only rulings a victorious plaintiff can appeal are those rulings affecting the amount of the recovery).

The Court of Civil Appeals correctly stated the rule that in Alabama a victorious plaintiff may appeal only as to the adequacy of damages. See Nichols, 615 So.2d at 637. However, this rule should not be applied to prevent Vincent from arguing that improperly excluded evidence affected the amount of the damages awarded. The proffered document appears to be a ledger, in the ex-wife's handwriting, that chronicles tens of thousands of dollars paid to various individuals. Vincent argues that the trial court's exclusion of the ledger may well have affected the amount of damages awarded to him. We conclude that had the jury been given the opportunity to view the ledger, there is a reasonable possibility that it might have awarded Vincent a substantially larger amount. Thus, the exclusion of the document may have affected the damages awarded to Vincent. The Court of Civil Appeals should have considered Vincent's argument regarding the exclusion of that document as a challenge to the adequacy of damages.

We now consider whether the document was wrongfully excluded. Donald M. Jones, the ex-wife's son, testified during trial that on June 4, 1991, at his mother's request, he drove her to the Brookwood and Bessemer branches of First Alabama. Jones said that he first drove his mother to the Brookwood branch, where she went into the bank and stayed for approximately 10 to 15 minutes while he waited for her in the car. Jones then stated that after his mother returned from inside the first bank, she directed him to drive her to the Bessemer branch. Jones testified that he again waited in the car at the Bessemer branch while his mother spent approximately 10 to 15 minutes inside. Jones further testified that his mother was wearing dark glasses and a scarf over her head and was carrying an oversized handbag on the day she entered the two banks.

The fact that the ex-wife entered the two banks on June 4, 1991, was uncontested. In her deposition, which was read at trial, the ex-wife admitted that she had misrepresented herself as Joy Dodge, Vincent's sister, to gain access to the safe-deposit boxes. The ex-wife stated in her deposition that she did open the safe-deposit boxes, but that she did nothing more than simply count the money that was inside.

Jones went on to tell the jury about his mother's unusual spending habits following her visit to the banks. He testified that she made several trips to Europe, spent $10,000 on portraits, purchased new vans, and put $25,000 in certificates of deposit. While Jones was still on direct examination, Vincent's attorney showed Jones a document and asked if he recognized the writing on the document as that of his mother. Jones stated that he was familiar with his mother's handwriting because she had worked for him, and he testified that he recognized the writing as hers. The proffered document was a page torn from a notebook; the page appeared to be a ledger of payments made by the ex-wife to various individuals. The ledger indicated that the payments began on June 4, 1991, the same date that the ex-wife visited the two banks. Vincent's attorney asked that the document be entered into evidence as an "admission" by the ex-wife, but the opposing attorney objected. The trial court sustained the objection.

The record reflects the following exchange between the court and Vincent's attorney regarding the introduction of the ledger:

"THE COURT: I am going to sustain. There has also been identification of her handwriting, and in this case this would be a violation under Rule 403 [Ala. R. Evid.] of introducing matters that are purported in her handwriting [sic].

"MR. PRINCE [Vincent's attorney]: Let me be heard. I am offering it as an admission against Betty [ex-wife] because it purports to be a listing made by her and all begins on the same day.

"THE COURT: I don't know what it purports. There is not a year.

"MR. PRINCE: I think there is an inference.

"THE COURT: I think the jury would have to speculate and the inferences they might draw would be prejudicial to the extent it would outweigh probative value because there has been such testimony that it is her handwriting as such, and there's been evidence that she signed Joy Dodge's name.

"MR. PRINCE: I am not offering it as a handwriting. She kept records of cash money she spent after going into the box.

"THE COURT: Sustain the objection. It is without prejudice to review it if she takes the stand later."

Later in the trial, Vincent's attorney again attempted to have the document offered into evidence. The record reflects the following concerning the second attempt:

"MR. PRINCE: I would like to revisit Exhibit 17. As I understood, one of the court's reasons for that was that there was no date on it, and I would point out to the court this: After her son has testified, there is a reference on here to loans to Sterling Services. He testified she worked for him at a designated time period, you know, and I think that ties back to a time in lieu of a year, and, therefore, we reoffer this. We think it is highly probative on her state of mind. She kept a record. It is an admission of cash payment. That is our argument. It may not be. It is offered into evidence.

"THE COURT: I have no other identification of what it is or whether this is part of a multi-page document. The reproduction indicates it's a page of a spiral notebook. My difficulty is that he was sort of vague about dates that she worked there. He covered a period of time. It could be both before and after the incident pertinent to this. And I think the other materials on there could be prejudicial to the extent they could outweigh relevance. It wasn't identified other than this looks like your mama's handwriting. And

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