Lawler Mobile Homes, Inc. v. Tarver

• Decision Date: 16 May 1986
• Citation: 492 So.2d 297
• Parties: LAWLER MOBILE HOMES, INC., and Kemper Lawler v. McArthur TARVER. 84-1140.
• Court: Alabama Supreme Court

Page 297

492 So.2d 297

LAWLER MOBILE HOMES, INC., and Kemper Lawler v.McArthur TARVER.

84-1140.

Supreme Court of Alabama.

May 16, 1986.

James L. Martin, Eufaula, for appellants.

Louis C. Rutland and Lynn W. Jinks III, Union Springs, for appellee.

SHORES, Justice.

This is an appeal from a judgment entered after a jury verdict in favor of plaintiffMcArthur Tarver against defendantsLawler Mobile Homes, Inc., and Kemper Lawler.

On or about August 22, 1983, Tarver and his family (including his common-law wife, Rita Allen), went to a mobile home lot owned and operated by Lawler Mobile Homes, Inc.(corporation).There they met a salesman, Wayne Wilkes, who was an employee of the corporation.Wilkes showed Tarver and his family around the lot, and soon thereafter they found a mobile home that they expressed an interest in purchasing.After some discussion about the monthly payments and the down payment, Wilkes asked Tarver to leave a cash deposit while he submitted a credit application on Tarver.Tarver gave Wilkes $100.00 in cash and then signed a document entitled "A Plain Language Purchase Agreement."The document contained a description of the make and serial number of the mobile home to be purchased, the dimensions of the mobile home, the fact that it was a used home, and a notation of a $100.00 deposit.The document did not state the sales price, interest rate, or monthly payments.

Wilkes then signed the document.He signed where an officer of the corporation usually signed; however, Wilkes was not an officer of the corporation, nor was he ever given the express authority to sign on behalf of the corporation.The purchase agreement stated that it was "[n]ot valid unless signed and accepted by an Officer of the Company."

After Wilkes and Tarver signed the purchase agreement, Wilkes told Tarver that he would call him back when he received the result of Tarver's credit application.Tarver and his wife testified that three days later Wilkes called, informing them that Tarver's credit application had been approved (this is denied by Wilkes), and that they should bring Wilkes $700.00 more to complete the down payment.Tarver then brought Wilkes the additional $700.00, which Wilkes noted on the previously executed purchase agreement.Tarver claims that Wilkes also told Tarver that the purchase price of the mobile home was "about eighteen thousand dollars, and the monthly payment would be about two hundred" but that "he didn't know exactly till he got the financial paperwork on it."Wilkes then told Tarver to expect delivery of the home in approximately two weeks.

After two weeks had gone by, Tarver contacted Wilkes by phone.Wilkes informed him that there had been a small delay because certain paperwork concerning the mobile home had not come back yet.Wilkes again promised that the mobile home would be delivered and that Lawler Mobile Homes would bring it the next day.Tarver was instructed by Wilkes to wait at a certain location so that he(Tarver) could meet the delivery truck to show the crew where to put the mobile home.Tarver followed Wilkes's instructions and waited all morning.When the mobile home did not arrive, Tarver called Wilkes and received the explanation that the truck had broken down, but was assured that the mobile home would be brought that afternoon.Again Tarver waited and, again, the mobile home was not delivered.This was the beginning of a series of excuses, delays, and deceptions that would last for a period of almost four months.The record shows that Tarver and his wife made numerous calls to Wilkes and made numerous trips to the mobile home lot in their efforts to obtain their mobile home.On numerous occasions, Tarver or his wife waited at a particular location, as instructed by Wilkes, for delivery of the mobile home.On each such occasion, Tarver would receive some excuse from Wilkes as to why the mobile home was not being delivered.Finally, it became obvious that the mobile home was not going to be delivered, and Tarver sought the assistance of counsel.

Tarver's attorney sent defendantKemper Lawler, an officer, stockholder, and director of the corporation, a letter concerning this matter, and it is Lawler's contention that this was the first time he learned of Tarver's situation.Wilkes, on the other hand, testified on deposition (which was read to the jury, since Wilkes was incarcerated at the time of trial) that Lawler was aware of the situation, and that he had instructed Wilkes to keep putting Tarver off when Tarver would inquire about delivery of the mobile home, because Lawler was " 'trying to get it handled' " and because " 'we don't make nothing giving a man his money back.' "Tarver testified that he had not personally dealt with Lawler in regard to the purchase of the mobile home.Rather, all of his interactions were with Wilkes.Tarver testified that he discussed the matter with Lawler only after his attorney had contacted Lawler.

Although the record is not entirely clear, it appears that at the time Lawler received the letter from Tarver's attorney, Lawler had investigated and discovered that Wilkes had taken deposits from other customers.Lawler and another employee testified that they had searched the corporation's receipt books and discovered that Wilkes had not written receipts for the money he had taken from these customers, as corporate policy required.Upon being confronted with this information, Wilkes wrote out a list of people from whom he had taken money and the amounts taken.The amounts totaled $8,510.00, and included in the list was Tarver's $800.00.Lawler fired Wilkes and turned this information over to the local law enforcement authorities.Wilkes was indicted on two counts of theft in the third degree, one of which was based on Lawler's property.Wilkes pleaded guilty to both charges, and was ordered to make restitution in the amount of $8,510.00, which included Tarver's $800.00.Wilkes denied taking Tarver's money and claimed that he pleaded guilty to avoid the possibility of a jury conviction--he said he was on probation at the time of this occurrence and was concerned about a possible habitual offender status.

The corporation eventually refunded $12,000.00 to $15,000.00 to customers who had given Wilkes their deposits.

In January of 1984, Tarver filed this action in circuit court.He named Lawler Mobile Homes, Inc., as a defendant, and by subsequent amendmenthe added Kemper Lawler.After several amendments, Tarver's complaint alleged breach of contract, including a claim for damages for mental anguish as a result of a breach of contract, misrepresentation, money had and received, and conspiracy.Prior to trial, the corporation and Lawler filed motions for summary judgment and for change of venue, which were denied.

The case was tried before a jury in Union Springs, Bullock County, Alabama.Lawler and the corporation moved for a directed verdict at the close of Tarver's evidence and at the close of all the evidence, challenging the sufficiency of the evidence as to each count asserted against each defendant.The trial judge denied these motions for directed verdict.The jury returned a verdict in the amount of $1,250,000.00 against both Lawler and the corporation.Lawler and the corporation thereupon moved for a new trial or, in the alternative, JNOV, and the trial court found the verdict rendered to be excessive by the amount of $994,000.00.The trial judge then conditionally granted the motion for new trial unless Tarver remitted all damages in excess of $256,000.00 and agreed to a reduction of the judgment to $256,000.00, in which event the motion for new trial would be denied.Tarver agreed to the reduction; the motion for new trial was denied.

On appeal, the issues are: (1) Whether the trial court erred in not granting the corporation's motion for change of venue; (2) whether the trial court erred in not granting Lawler's and the corporation's motion for summary judgment; (3) whether there was insufficient evidence to submit to the jury the issues of whether Lawler and the corporation were guilty of breach of contract, misrepresentation, and conspiracy; (4) whether there was insufficient evidence to submit to the jury the issue of damages for mental anguish under the breach of contract count; and (5) whether the trial court should have granted Lawler's and the corporation's motion for new trial or, in the alternative, JNOV on the ground that the verdict was the result of bias, passion, and prejudice.

At the outset, we agree with defendant Lawler that a directed verdict should have been entered in his favor on the contract count.There is not a scintilla of evidence that he was a party to the contract in issue.Tarver testified that the only person he ever had any dealings with concerning the purchase of the mobile home was Wilkes, the salesman.Therefore, it was error to submit the breach of contract count against Lawler to the jury.Since the jury rendered a general verdict against Lawler (and the corporation), and we are unable to determine upon which count(s) the jury based its verdict, we reverse and remand for a new trial as to Lawler.The remainder of this opinion is devoted to the issues raised by the corporation, and for the reasons discussed herein, the judgment against the corporation is affirmed.

I.

The corporation contends that the trial court abused its discretion in denying its motion for change of venue.

The denial of a motion for a change of venue in a civil action is not such a ruling of the trial court as may be reviewed by this Court on an appeal from a final judgment in the cause.NYTCO Services, Inc. v. Wilson, 351 So.2d 875(Ala.1977);Mathis v. Board of School Commissioners of Mobile County, 289 Ala. 552, 268 So.2d 822(1972).The proper method for obtaining review of a trial court's ruling on a motion for a change of venue is by a writ of mandamus.Ex parte Tidwell Industries, Inc., 480 So.2d...