Fort v. AT & T Communications, Inc.

• Decision Date: 01 December 1989
• Citation: 562 So.2d 135
• Court: Alabama Supreme Court
• Parties: James W. FORT and Dolores Fort v. AT & T COMMUNICATIONS, INC., et al. 88-369.

Page 135

562 So.2d 135

James W. FORT and Dolores Fort v. AT & T COMMUNICATIONS, INC., et al.

88-369.

Supreme Court of Alabama.

Dec. 1, 1989.

Rehearing Denied April 27, 1990.

James G. Gann, Jr. and M. Keith Gann of Huie, Fernambucq & Stewart and R.B. Jones, Birmingham, for appellants.

Edward S. Allen and Jonathan S. Harbuck of Balch & Bingham, Birmingham, and Hugh A. Nash and Herbert B. Sparks, Jr. of Nash & Associates, Oneonta, for appellees.

ADAMS, Justice.

This is an appeal by James W. Fort and Dolores Fort from an order setting aside a $100,000 verdict in their favor and granting a new trial. We affirm in part and reverse in part.

The evidence indicates that in 1985, representatives of AT & T approached the Forts, seeking to obtain an easement that would permit AT & T to lay an optic fiber cable across the Forts' property. The evidence suggests that, when the Forts were unwilling to grant the easement, AT & T contacted Smoke Rise Development Corporation, the developer of the Forts' subdivision, and obtained an easement across the front of the Forts' property. ¹ After being notified by AT & T attorneys of its action and its intent to lay cable across his property in spite of his objections, James Fort purchased and hung several "no trespassing" signs and strung wire across his rear property line. AT & T alleges that it thereafter sought a permit to bury the cable along the right-of-way of old Highway 31, which paralleled the Forts' rear property line. Although the permit was not granted until July 1986, in May 1986 two men from a clearing crew cut one hardwood tree and approximately 20 saplings from the rear of the Forts' property. The Forts contend that in order to do so, the men had to have ignored his signs and crossed under or over his wire. Subsequently, the cable was successfully buried outside of the Forts' property line and along the right-of-way of old Highway 31.

The Forts sued AT & T, alleging trespass, slander of title, breach of warranty of quiet title and peaceful possession, denial of access to Highway 31, infliction of mental distress, and outrage. The trial court directed a verdict in favor of AT & T on all counts except the trespass count. The jury returned a verdict against AT & T for $100,000 on the trespass count; the trial judge thereafter granted a new trial, and his order stated in part as follows:

"After a careful review of the record and of the briefs submitted by the parties, the Court is of the opinion that the jury's verdict should be set aside and a new trial granted as to the trespass claim. The record demonstrates that the testimony and exhibits received at trial in support of the plaintiffs' trespass claim were greatly outweighed by the evidence of the plaintiffs' other claims, particularly the claims for punitive damages for slander of title. Although each of these other claims was removed from the jury's consideration by the Court's directed verdict, it is apparent that the cumulative effect of all of the testimony and all of the exhibits was to confuse the issues in the minds of the jurors. The Court is satisfied that no testimony or exhibits were improperly received, and is further satisfied that the jury was correctly charged as to the trespass issue before it. However, judging from the verdict and the size of the damages award, and considering all of the evidence cumulatively, the credibility of the witnesses, and the arguments of the counsel at trial, it is the Court's opinion that the ends of justice would best be served by granting a new trial on the trespass claim. Bekins Van Lines v. Beal, 418 So.2d 81 (Ala.1982)." (Emphasis added.)

The appellant in Bekins Van Lines v. Beal, 418 So.2d 81 (Ala.1982), cited by the trial judge to support the granting of a new trial, raised the following grounds in support of his motion for new trial:

"1. The verdict is contrary to the law.

"2. The verdict is contrary to the evidence.

"3. The evidence considered in the most favorable light in behalf of the Defendant is insufficient to support any verdict that might be rendered for the Defendant herein.

"4. The evidence was, as a matter of law, that the injuries sustained by Plaintiff, if any, on May 2, 1978, were the result of wanton conduct on the part of the Defendant. Defendant's [counsel] even admitted in the closing argument that Defendant did wrong.

"5. Opposing [counsel] addressed jury members individually during the summation constituting prejudice and reversible error.

"6. Noise from the construction immediately outside the Courtroom prevented the jury from hearing part of the testimony and jury instructions so that there was insufficient evidence and/or jury instructions to support a verdict and/or to constitute proper instructions to the jury.

"7. Members of the jury heard the Judge's instructions in that the burden of proof of Plaintiff was 'beyond a shadow of a doubt' which is an improper and prejudicial burden of proof. Note that this is based on the Affidavits of the jurors attached to this Motion and not in the instructions.

"8. One juror was asleep during a large portion of the trial and for this reason Plaintiff was not afforded a trial by 12 qualified jurors but was given a trial by one juror who heard part of the evidence and could, therefore, only contribute to part of the deliberation which could be worse than no contribution at all.

"9. One juror was interested in another trial, as opposed to this trial, to the point that the jury and the Court waited, on more than one occasion, for her to return from the other Courtroom so we could continue. Thus, obviously, that same juror was not properly listening to the evidence or the case and could, perhaps, cause more harm than good in deliberation.

"10. The decision was not a unanimous one as required by law. When the jury was polled, one member did not positively state that this was her verdict." "

Id. at 82-83. The trial judge, in granting the motion, stated:

"Having considered all the grounds asserted by the...