Green Oil Co. v. Hornsby

• Decision Date: 13 January 1989
• Citation: 539 So.2d 218
• Parties: GREEN OIL COMPANY, a partnership v. Dean HORNSBY and Sheila Hornsby, d/b/a Hornsby's Grocery. 86-1553.
• Court: Alabama Supreme Court

Page 218

539 So.2d 218

GREEN OIL COMPANY, a partnership v.Dean HORNSBY and Sheila Hornsby, d/b/a Hornsby's Grocery.

86-1553.

Supreme Court of Alabama.

Jan. 13, 1989.

Edwin L. Davis and Fred D. Gray, Tuskegee, for appellant.

Steven F. Schmitt of Hornsby & Schmitt, Tallassee, for appellees.

HOUSTON, Justice.

On April 17, 1986, Green Oil Company filed a two-count complaint against Dean Hornsby and Sheila Hornsby, d/b/a Hornsby's Grocery, for the recovery of certain personal property, including gasoline pumps and an underground tank, and on an open account for gasoline delivered and not paid for.The Hornsbys denied the debt on open account but admitted that the personal property belonged to Green Oil Company, and they filed a counterclaim alleging breach of contract and fraud.Green Oil Company filed a general denial to the counterclaim.The case was tried to a jury.The jury awarded Green Oil Company $2,000 and awarded the Hornsbys compensatory damages of $14,704.06 and punitive damages of $150,000.After Green Oil Company appealed to this Court, the case was remanded to the trial court for a hearing on the question of excessiveness of the jury verdict, pursuant to Hammond v. City of Gadsden, 493 So.2d 1374(Ala.1986).Following the Hammond hearing, the trial court ordered a new trial conditioned upon the Hornsbys' refusal to accept a remittitur of $125,000 in punitive damages.The Hornsbys accepted the trial court's remittitur of $125,000, reserving the right to question the trial court's decision on remittitur in the event Green Oil Company continued to prosecute the appeal pending in this Court.

We have searched the record and have been unable to find where Green Oil Company filed a motion for a directed verdict at any time during the trial of this case.Therefore, Green Oil Company's first issue, whether the trial court erred in refusing to grant its motion for a judgment notwithstanding the verdict, cannot be considered by this Court.Rule 50(b), Ala.R.Civ.P., provides in pertinent part:

"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may file a motion to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict...."

This Court has held that the filing of a motion for a directed verdict is a prerequisite to the filing of a motion for a judgment notwithstanding the verdict.Rush v. Eason Plumbing & Electrical Contractors, Inc., 361 So.2d 516(Ala.1978);Sunshine Homes, Inc. v. Newton, 443 So.2d 921(Ala.1983);Black v. Black, 469 So.2d 1288(Ala.1985).

Green Oil Company argues that it was error for the trial court to refuse to grant a new trial because the verdict was against the great weight and preponderance of the evidence.The decision of a trial court refusing to grant a new trial on the ground that the verdict is contrary to the great weight and preponderance of the evidence will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740(1891), overruled on other grounds, Jawad v. Granade, 497 So.2d 471(Ala.1986).Suffice it to say, that we are not clearly convinced that it was wrong and unjust for the trial court not to grant a new trial on the basis that the verdict was against the great weight and preponderance of the evidence.The evidence of fraud on the part of Green Oil Company was sufficient to support the verdict.

Green Oil Company next argues that it was error for the trial court to refuse to set aside the award of punitive damages.We disagree.

Reviewing the evidence most favorably toward the Hornsbys, as our standard of review requires, we note the following: There was evidence of a representation to the Hornsbys by Green Oil Company, that Green Oil Company would charge the Hornsbys seven cents a gallon above Green Oil Company's cost of purchasing gasoline.There is evidence that Green Oil Company never intended to charge the Hornsbys no more than seven cents a gallon above Green Oil Company's cost for gasoline; therefore, the jury could have found that that statement was false.There is evidence that initially Green Oil Company did charge the Hornsbys approximately seven cents a gallon above its cost for gasoline; however, this changed.

On December 27, 1985, Green Oil Company charged the Hornsbys 13.4 cents per gallon above Green Oil Company's cost.This difference increased dramatically during 1986, and the following was the difference between the per gallon cost charged to the Hornsbys and the amount paid by Green Oil Company on the specified dates: January 9--16.4 cents; January 16--17.65 cents; January 23--18.6 cents; January 30--19.7 cents; February 6--20.25 cents; February 13--24.2 cents; February 20--27.5 cents; February 27--29.25 cents.

There was evidence of a representation made by Green Oil Company to the Hornsbys; there was evidence that the representation was false and that Green Oil Company knew it to be false; and there was evidence from which the jury could reasonably infer that the representation was made by Green Oil Company with the intent and purpose of deceiving the Hornsbys.

The Hornsbys were owners and operators of Hornsby's Grocery Store.They had never been in the grocery store or gasoline business before.When they started this business, they were dealing with an Amoco supplier from Camp Hill.They were satisfied with their relationship with this dealer, and they changed because of the representations made to them by partners of Green Oil Company.There is credible evidence that Mrs. Hornsby did not know how to ascertain the wholesale price of gasoline prior to the filing of this lawsuit by Green Oil Company, although there is evidence that she then learned how to ascertain this price and has done so frequently since this suit was filed.There is evidence to support a finding of every element of the cause of action for fraud in accordance with the trial court's thorough instructions to the jury.These instructions were not objected to by Green Oil Company; and after allowing all reasonable presumptions of its correctness, we find that the preponderance of the evidence against the jury verdict is not so decided as to clearly convince this Court that it is wrong and unjust.

As shown from the facts stated above, there was evidence to support an award of punitive damages.

The trial court in its Hammond order found the following:

"There is ample evidence to support the verdict for the Hornsbys for compensatory damages, and there is ample evidence to support a finding by the jury that [Green Oil Company] willfully and maliciously perpetrated a legal fraud upon the Hornsbys.The only question which arises from the evidence and surrounding circumstances in this case is whether the punitive damages award of $150,000.00 is excessive.We find that it is excessive, for the reasons that follow.

"The evidence supports a finding that [Green Oil Company was] very culpable and that the wrong to the Hornsbys was substantial.But in fixing the punishment, we must consider what amount is appropriate to prevent similar wrongs in the future, and in that connection we must ask what effect a large punitive damages award will have on [Green Oil Company].While we are prohibited from considering the worth of the defendants, we believe that it is appropriate to note that [Green Oil Company] is a relatively small, independent distributor of refined petroleum products which is owned and operated as a partnership out of Union Springs by the two Green brothers, Michael and Phillip.[Green Oil Company] is not incorporated, and any judgment against [Green Oil Company] therefore becomes a personal judgment against the Greens, jointly and severally....[I]t doesn't take a large verdict to be heard and felt a few miles down the road in Union Springs by two local individuals.

"Accordingly, the Court finds that the punitive damages award is excessive because of its effect upon the Greens, and that it should be reduced from $150,000.00 to $25,000.00....

"[The Hornsbys], then, shall either accept a remittitur in the amount of $125,000.00, or the Court will order a new trial."

As previously stated in this opinion, the Hornsbys did accept the $125,000 remittitur subject to our review of the remittitur in the event that Green Oil Company persisted in its appeal.

In City Bank of Alabama v. Eskridge, 521 So.2d 931, 932-33(Ala.1988), Justice Jones, writing for the Jones Division of this Court, stated as follows:

"The right to a trial by jury in civil cases is guaranteed by § 11, Alabama Constitution; therefore, a jury verdict will not be set aside unless it is flawed, thereby losing its constitutional protection.Upon finding a verdict to be flawed, the trial court, pursuant to A.R.Civ.P. 59(f), and this Court, pursuant to Code 1975, § 12-22-71, may interfere with it.At what point, however, will a damages award require a finding of a flawed jury verdict?

" 'First, it may include or exclude a sum which is clearly recoverable or not as a matter of law, or which is totally unsupported by the evidence, where there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure.In these situations, a trial court may, and should, reduce or increase the amount of the verdict to reflect the amount to which the parties are entitled as a matter of law.Second, a jury verdict may be flawed because it results, not from the evidence and...