Hilb, Rogal & Hamilton Company v. Beiersdoerfer, No. 1071395 (Ala. 9/25/2009)
Decision Date | 25 September 2009 |
Docket Number | No. 1071396.,No. 1071395.,1071395.,1071396. |
Parties | Hilb, Rogal & Hamilton Company et al. v. Werner Beiersdoerfer Werner Beiersdoerfer v. Hilb, Rogal & Hamilton Company et al. |
Court | Alabama Supreme Court |
Appeals from Jefferson Circuit Court (CV-01-1091)
Hilb, Rogal & Hamilton Company, Hilb, Rogal & Hamilton of Alabama, Inc., and BDF-Meadows, Inc. (collectively referred to as "the HRH corporations"), appeal from the trial court's order remitting the damages awarded to Werner Beiersdoerfer and against the HRH corporations. Beiersdoerfer cross-appeals from that same order. We reverse and remand.
This is the third time this case has been before this Court. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196 (Ala. 2006) ("Beiersdoerfer I"); Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So. 2d 1045 (Ala. 2007) ("Beiersdoerfer II"). The underlying facts are stated in Beiersdoerfer I, 953 So. 2d at 1199-1204, and are not repeated here.
In Beiersdoerfer I, this Court affirmed the trial court's judgment in part, reversed it in part, and remanded the cause for additional proceedings. 953 So. 2d at 1210. On remand, the trial court held that it did not have jurisdiction to review the HRH corporations' motion for a remittitur of the $1.25 million verdict in favor of Beiersdoerfer, and the HRH corporations appealed. Beiersdoerfer II, 989 So. 2d at 1052-54. In Beiersdoerfer II, we held that "[t]he trial court had jurisdiction to consider the HRH corporations' motion for a remittitur upon our remand of the case in Beiersdoerfer I." 989 So. 2d at 1058. We reversed the trial court's order denying the motion for a remittitur and remanded the cause for the trial court to determine "whether the damages awarded for mental anguish were excessive, and whether the HRH corporations are due a setoff for a percentage of the commissions earned by Beiersdoerfer pursuant to the contract the jury found to be in existence and enforceable." 989 So. 2d at 1058.
On remand from Beiersdoerfer II, the trial court ordered a remittitur of the compensatory damages awarded to Beiersdoerfer from $1.25 million to $900,000. The trial court also held that the HRH corporations were entitled to a setoff of 60% of the $63,000 that Beiersdoerfer apparently had earned in commissions under the contract he had with the HRH corporations. The HRH corporations appeal from the trial court's order, and Beiersdoerfer cross-appeals.
The HRH corporations argue that the remittitur was inadequate; conversely, Beiersdoerfer argues that no remittitur was warranted and that the HRH corporations were not entitled to a setoff. Although the parties strongly contest those issues, they both agree that the trial court's order must be reversed because it did not give Beiersdoerfer the option of electing a new trial in lieu of the remittitur.
Rule 59(f), Ala. R. Civ. P., states:
"The court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial; and, the acceptance of such remittitur by the plaintiff shall not, on appeal by the defendant, prejudice the plaintiff's right to seek reinstatement of the verdict in its full amount."
In B & M Homes, Inc. v. Hogan, 347 So. 2d 1331, 1331-32 (Ala. 1977), this Court held that the trial court committed reversible error in granting the defendants' motion for a remittitur without giving the plaintiffs an opportunity to choose a new trial in lieu of the remittitur. 347 So. 2d at 1332. This Court stated:
Addressing the same issue in McCormick v. Alabama Power Co., 293 Ala. 481, 306 So. 2d 233 (1975), this Court stated:
W. T. Rawleigh Co. v. Hannon, 32 Ala. App. 147, 22 So. 2d 603 (1945). (Emphasis supplied [in McCormick].)
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