Monteleone v. Trail Pontiac, Inc.

• Decision Date: 29 October 1980
• Citation: 395 So.2d 1003
• Parties: Sharon MONTELEONE v. TRAIL PONTIAC, INC., a corporation and Clint Phipps, jointly and individually. Civ. 2302.
• Court: Alabama Court of Civil Appeals

Page 1003

395 So.2d 1003

Sharon MONTELEONE v. TRAIL PONTIAC, INC., a corporation and Clint Phipps, jointly and individually.

Civ. 2302.

Court of Civil Appeals of Alabama.

Oct. 29, 1980.

Rehearing Denied Dec. 10, 1980.

Robert F. Clark, Mobile, for appellant.

Edward S. Sledge, III, of Hand, Arendall, Bedsole, Greaves & Johnston and Lionel L. Layden, Mobile, for appellee.

BRADLEY, Judge.

This is an appeal from the denial of a motion for a new trial in a fraud action.

The facts of this case have to be gleaned from the pleadings and from the trial court's oral charge due to the absence of any testimony.

The facts show that Sharon Monteleone bought a car from Trail Pontiac, Inc. The salesman was Clint Phipps. Monteleone brought suit against Trail and Phipps claiming fraud and deceit in the sale of the car in that the car was represented to be new when in fact it was used, and furthermore that the car was lien-free when in fact there was a lien against it. The defendants denied the allegations of the complaint.

The case was tried before a jury on November 5 and 6, 1979. A verdict was returned on November 6, 1979 which stated: "WE, THE JURY, FIND FOR THE PLAINTIFF AND AGAINST THE DEFENDANTS AND ASSESS HER DAMAGES AT THE SUM OF $000." The court entered judgment accordingly. Each member of the jury was polled by the court ex mero motu and each juror affirmed the verdict. The court asked the jury if the intention of the jury was to find for the plaintiff so as to require the defendants to pay costs, and the jury answered in the affirmative. Plaintiff's counsel did not object to the form of the verdict.

Plaintiff subsequently filed a motion for judgment notwithstanding the verdict, or, alternatively, a new trial. The trial court did not rule on this motion within ninety days and it was deemed denied pursuant to Rule 59.1, ARCP. From the denial of the motion for new trial Monteleone appeals.

The sole issue for our consideration is whether a jury's verdict in a fraud case finding for the plaintiff but awarding zero damages is inconsistent and therefore invalid. We conclude that such a verdict is invalid.

Damage is an essential element of fraud. § 6-5-100, Code of Alabama 1975; Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975). And, in the absence of proof of damage, plaintiff cannot recover even nominal damages. Oates v. Glover, 228 Ala. 656, 154 So. 786 (1934). We should not be understood, however, as saying that one must prove an exact monetary loss in order to recover nominal damages. See Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App., 1980).

Since the verdict which was in favor of the plaintiff awarded her zero damages, it is inconsistent and therefore invalid because an essential element supportive of a fraud judgment has been omitted. That is, the jury has concluded that plaintiff has not been damaged. In the absence of a finding of damage in a fraud case the plaintiff fails to prove his case. The verdict's inconsistency lies in the finding that the plaintiff has proved defendants' culpability but failed to prove that she had been damaged as a result of that culpability. Such a verdict is inconsistent and cannot stand.

Defendants contend that a new trial should not be awarded solely because the jury failed to award damages in some amount. However, as noted above there can be no finding for plaintiff in a fraud case without an award of damages in some amount. None were awarded in the instant case.

Defendants also argue that Monteleone's failure to object to the form of the verdict...