JOHNSON v. L.O

• Decision Date: 29 January 2010
• Docket Number: 2080501.
• Citation: 42 So.3d 759
• Parties: Roy JOHNSON v. L.O.
• Court: Alabama Court of Civil Appeals

42 So.3d 759

Roy JOHNSON v. L.O.

2080501.

Court of Civil Appeals of Alabama.

January 29, 2010.

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Joe Espy III and Benjamin J. Espy of Melton, Espy & Williams, PC, Montgomery, for appellant.

Submitted on appellant's brief only.

MOORE, Judge.

Roy Johnson appeals from a judgment of the Lee Circuit Court awarding L.O. $35,000. We affirm.

On August 13, 2006, Roy Johnson, who co-owned a house with his son, Steven Johnson, and his then daughter-in-law, L.J. (now L.O.)¹, who were then contemplating a divorce, signed a document ("the note") stating the following:

"This letter is to confirm and guarantee payment of $35,000.00 to [L.O.] as her share of the house located at 208 Bridgewater Terrace, Helena, Al. She agrees to sign [an] appropriate deed upon the sale of the house by Steven Johnson and grants to Steven Johnson the right to determine the time and place of the sale. L.O. forfeits any claim or interest in the said house and property and is not liable for any sale of the property that results in financial loss. She forfeits any claim to any financial gain upon the sale of the property. This sum shall be paid upon the completion of the sale or June, 2007 which ever date occurs first."

L.O. fulfilled her obligations as outlined in the note, but Roy refused to pay her $35,000. Roy claimed that, in addition to the consideration set out in the note, L.O. also agreed to cooperate in trying to get dismissed certain criminal charges L.O. had filed against Steven arising out of a July 4, 2006, incident occurring in Baldwin County ("the Baldwin County incident"). Roy asserted that L.O. had breached that portion of their agreement, thereby relieving him of his duty to pay the $35,000. L.O. denied that she had ever agreed to try to get the charges against Steven dismissed as partial consideration for the note.

Upon Roy's refusal to pay the $35,000, L.O. filed a civil action against Roy seeking compensatory and punitive damages for his failure to pay the note and for fraud. Roy denied any liability for the note or for fraud. Steven intervened in the action claiming that L.O. had fraudulently failed to disclose the note to him during their divorce proceedings and seeking an equitable share of any proceeds awarded to L.O. in the event L.O. recovered in the action. The case proceeded to a trial by jury, at the close of which the trial court entered a judgment as a matter of law in favor of Roy on L.O.'s fraud claim. The jury thereafter returned a verdict in favor of L.O. and against Roy on her remaining claim and awarded her $35,000; it also returned a verdict in favor of Steven and against L.O. on Steven's fraud claim and awarded him $1,000. Roy filed a motion for a new trial, which was denied by operation of law, see Rule 59.1, Ala. R. Civ. P.; he then timely appealed to this court was going to live off after the divorce was over?"

Roy replied that he had previously secured employment for L.O. at which she was earning in excess of $60,000 per year and that she was receiving voluntary child support in the amount of $1,000 per month from Steven.

Citing Bennett v. Brewer, 682 So.2d 448 (Ala.1996), Roy asserts that wealth of the parties to litigation is "wholly irrelevant and immaterial" and should never be injected into litigation in any way, shape, or form. Bennett cannot be read so broadly; Bennett does, however, indicate that, in certain circumstances, it is reversible error for a trial court to fail to take strong measures to instruct a jury that it is improper for an attorney to argue the wealth of a defendant as even a partial basis for its verdict. 682 So.2d at 451-52. In Bennett, the attorney for the defendant timely and specifically objected to the first and every subsequent mention of the defendant's wealth during closing argument.

In this case, before the cross-examination of Roy, L.O.'s attorney asked L.O. on direct examination about the August 13, 2006, meeting. One of the questions L.O.'s attorney asked L.O. was: "Now, did you and [Roy] ever discuss how you were going to afford to live after the divorce?" Roy's attorney did not object to that question. L.O. responded that she and Roy had not discussed how she would live but that they had discussed a way she could "get started." That "way" included Roy's providing her the note for her share of the Helena home. Later in her direct examination, L.O. testified that, on August 13, 2006, she did not have "any funds to fall back on other than this promise to pay the $35,000"; that she lived off of $500 per month Steven had provided her before the divorce; and that, after her divorce, all she and her three children had to sustain them was her paycheck. Roy objected to that line of questioning, but only after L.O. had completed her testimony. Although the trial court sustained the objection, Roy did not move to strike the foregoing testimony.

"`[W]hen a question is asked of a witness calling for inadmissible matter, it is mandatory upon the party against whom it is offered to object after the question but before the answer.' C. Gamble, McElroy's Alabama Evidence § 426.01(3) at 793-94. An objection not made until after a responsive answer is given comes too late. Williams v. State, 383 So.2d 547, 559 (Ala.Cr.App.1979), aff'd, Ex parte Williams, 383 So.2d 564 (Ala.), cert. denied, Williams v. Alabama, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)."

Sexton v. State, 529 So.2d 1041, 1051 (Ala. Crim.App.1988). If the response is given too quickly for a timely objection, the objecting party must move to strike or to exclude the answer and must receive an adverse ruling in order to preserve that evidentiary issue for appellate review. General Motors Corp. v. Johnston, 592 So.2d 1054, 1058 (Ala.1992).

Before Roy's cross-examination, the record already contained testimony regarding L.O.'s financial status to which Roy had either not objected or had objected too late. That evidence tended to show that L.O. depended on the $35,000 Roy had promised to sustain herself and that evidence injected into the proceedings L.O.'s financial status. The later question to Roy on cross-examination sought to solicit information in the same vein. Roy's responses actually contradicted L.O.'s testimony to a large degree and tended to disprove her need for the $35,000 in order to survive. For purposes of our review, the point is that any negative evidence the question possibly could have elicited would have been cumulative of the evidence already in the record. Therefore, whatever error the trial court may have committed in allowing Roy to respond would have been harmless error, which would not warrant a reversal. See Ex parte Key, 890 So.2d 1056, 1066 (Ala.2003) (stating that, even if the trial court exceeded its discretion in admitting certain testimony, any error was harmless because that testimony was cumulative); Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993) ("Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred."). For that reason, we see no grounds for reversing the trial court's judgment based on its failure to sustain the objection.

In his brief, Roy quotes an excerpt from the closing argument made by L.O.'s attorney in which the attorney stated:

"There [are] a lot of things you will do when you are scared, and a man that powerful telling you what to do—you saw him try to stare me down. It's time somebody sent him a message that, `hey, big boy, you don't run over us.'"

Roy's attorney immediately objected, but he did so without stating a basis for the objection, and the trial court overruled that objection. Again citing Bennett, and also relying on 1 Alabama Pattern Jury Instruction—Civil 1.12 (2d ed. 1993) ("In arriving at a verdict in this case you must not permit sympathy, prejudice or emotion to influence you."), Roy argues that it is prejudicial to introduce into evidence the social status of the litigants to play on the prejudice or sympathy of the jurors.

Because the statements of counsel during closing argument are not evidence, see Whitt v. State, 370 So.2d 736, 739 (Ala.1979), we construe Roy's argument as a claim that he has been prejudiced by an improper closing argument.

"It is well recognized in Alabama that `the trial judge in his discretion has control of arguments of counsel and this reviewing court will not interfere with that discretion except in cases of abuse.' Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 102, 289 So.2d 603, 606 (1974)."

Ashbee v. Brock, 510 So.2d 214, 216 (Ala. 1987).

The entirety of the excerpt quoted by Roy reads as follows:

"[L.O.'s counsel]: There [are] a lot of things you will do when you are scared, and a man that powerful telling you what to do—you saw him try to stare me down. It's time somebody sent him a message that, `hey, big boy, you don't run over us.'"

[Roy's counsel]: Your Honor, I object to that.

[Trial court]: Overruled. Go ahead.

"[L.O.'s counsel]: `You don't run us. You don't run everybody. You signed a four corner agreement. Then stick to it.'"

It appears from the full excerpt that the "message" L.O.'s attorney urged the jury to send to Roy was that his contractual agreement must be honored regardless of his social status, which is consistent with Alabama law. See Drummond Co. v. Boshell, 641 So.2d 1240, 1242 (Ala.1994) (quoting trial court's remark recognizing all persons are equal under the eyes of the law). In fact, Roy has not provided this court any legal authority precluding an attorney from mentioning the social status of a litigant, as opposed...