Ott v. Smith

• Decision Date: 30 April 1982
• Citation: 413 So.2d 1129
• Parties: James OTT v. Jack W. SMITH, et al. 80-598.
• Court: Alabama Supreme Court

Page 1129

413 So.2d 1129

James OTT v. Jack W. SMITH, et al.

80-598.

Supreme Court of Alabama.

April 30, 1982.

Allen W. Howell, Montgomery, for appellant.

Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.

PER CURIAM.

Plaintiff, James Ott, filed an action for legal malpractice against his former attorneys, Jack and Earl Smith. A jury found in favor of the defendants and plaintiff appeals. This action arises from a previous action filed by Phyllis Fox against Ott for the wrongful repossession and conversion of a night club, the corporate stock of the night club, and the furniture and fixtures on the premises of the night club, and for the wrongful eviction of Fox from the premises, in which action she recovered a judgment for $103,346.00. That judgment was affirmed by this Court in Ott v. Fox, 362 So.2d 836 (Ala.1978). Subsequently, Ott filed suit against these defendants, his former attorneys. We affirm.

The initial action followed a sale of the Flamingo Club by James Ott to Phyllis Fox and Phyllis Schidler. The sale involved a lease-purchase agreement covering furniture and fixtures and a lease on the building itself. These agreements included cross-default provisions to allow Ott to reclaim possession of the premises if payments were not timely made. Fox later bought Schidler's interest in the night club, but she became delinquent in the payments due Ott. Ott accepted the late payments for some time, but in one month when the payments were later than usual, Ott evicted Fox and repossessed the fixtures, furniture, stock, and night club. Fox then sued Ott and obtained the $103,346.00 judgment previously mentioned.

Ott brought this action against his attorneys, Jack Smith and Earl Smith, alleging: (1) the attorneys failed to disclose a serious conflict of interest in that Jack Smith was allegedly sexually involved with Phyllis Fox; (2) the attorneys failed to show that Fox did not own the furniture and fixtures allegedly converted, but that they had been owned by a corporation, thus depriving Fox of standing to sue for their conversion, and that any attorney exercising ordinary care and skill would have found existing authority to support this contention; (3) the attorneys negligently failed to show that the corporation had no value and thus no damages should have been awarded for its wrongful conversion; and (4) the Smiths failed to present and prosecute a compulsory counterclaim against Fox for deficiencies under the lease and security agreement.

On appeal, appellant presents a multiplicity of issues. The first issue to be decided is whether the trial court erred in granting the defendants' motion for a directed verdict as to the wanton misconduct count. Plaintiff charged that the defendants were guilty of wanton conduct in their professional duties by failing to inform the plaintiff of Jack Smith's "intimate involvement" with Phyllis Fox, which, plaintiff says, prevented the defendants from faithfully representing the interests of James Ott in the initial court action. At the present trial, Jack Smith vehemently denied any involvement with Fox and at the conclusion of testimony moved for a directed verdict. The defendants' motion stated in pertinent part:

"Comes now the Defendant SMITH AND SMITH, a partnership, and moves this Court to direct a verdict in their favor, and as grounds therefor states the following:

....

"2. There is no evidence of reckless or wanton misconduct which proximately caused the verdict to be returned against Mr. Ott in the Fox vs. Ott trial."

At trial the court initially denied the motion for a directed verdict, but when asked by defendants' counsel whether this denial included both the negligence and wantonness counts, the court replied that this was only for the negligence count and that the court believed there was no evidence as to wantonness, and the court granted a directed verdict on that issue. Appellant now contends that this was error, alleging that the defendants did not specifically move for a directed verdict on the wanton counts in any of their motions as required by Housing Authority of the City of Prichard v. Malloy, 341 So.2d 708 (Ala.1977). In that case, this Court stated:

"[A] general motion for a directed verdict, pursuant to Rule 50, can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for a verdict directing instruction on each of the individual issues."

341 So.2d at 709-10. As shown above, however, the defendants' motion for directed verdict specifically states in ground number two that no evidence of wantonness exists and requests a directed verdict for that reason. All other grounds listed dealt with the plaintiff's negligence count. Likewise, the request was orally made in open court for a directed verdict on the wantonness count. We believe that these factors in combination were sufficient requests for a directed verdict. Furthermore, at the time the motion was granted, the attorney for the appellant did not interpose a proper objection to the adverse ruling. It is a well settled rule that a party who fails to object to alleged errors at the trial level may not raise these alleged errors for the first time as the basis for an appeal. Holt v. Davidson, 388 So.2d 548 (Ala.1980); Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979). An objection must be made and a ground stated therefor, or the objection and alleged error are deemed to have been waived. Thus, we cannot say that the trial court erred in respect to this issue.

Appellant also alleges as error that the trial court erred in refusing to allow the reading into evidence of the deposition of Bonnie Pass. The appellant's complaint alleged that Jack Smith engaged in illicit and immoral activities during the evening between the two days of the Fox v. Ott trial. The deposition of Bonnie Pass, which was appellant's only evidence on that issue, was found by the trial court to be irrelevant. In the deposition, Bonnie Pass stated that she and Jack Smith had spent two to three hours together the night between the first and second day of the Fox v. Ott trial, that they had gone to a motel room, had a couple of drinks, and had sex. On cross-examination, however, this testimony was severely weakened by the fact that she did not know what motel was involved, what time of night the alleged rendezvous occurred, what day it took place, or any of the details of the meeting. Finally, when questioned about her whereabouts around Thanksgiving, 1977, the time of the Fox v. Ott trial, she stated that she was in North Carolina with a boy friend.

It is the rule in Alabama that the trial court may exclude evidence, even though it is relevant, when it would serve little or no purpose except to arouse the passion, prejudice, or sympathy of the jury. Whether such evidence should be excluded is largely within the trial court's discretion. Valley Mining Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961). In addition to the fact that the testimony was questionable, plaintiff offered absolutely no evidence to show that these alleged acts affected Jack Smith's performance at trial the following day. The trial judge properly exercised his discretion and we cannot say that to exclude this testimony was an abuse of discretion.

Appellant further alleges that in instructing the jury the trial court erred in giving three of defendants' requested charges and in refusing five of plaintiff's charges. Defendants' charges thirteen and twenty-two related to contributory negligence. Appellant contends that contributory negligence did not apply in this situation, yet the plaintiff likewise requested a similar charge on contributory negligence. We find no error in these charges.

Defendants' requested charge seventeen dealt with the right of conversion upon interference with mere possession of chattels as embodied in Code 1975, § 6-5-261. This charge stated:

"I charge you that an action for conversion such as that brought by Phyllis Fox against James Ott can be brought by the owner of personal property or by one who is in the mere possession of personal property even if that person in possession of personal property does not have title to the property. If you are reasonably satisfied from the evidence in this case that Phyllis Fox was a proper party to maintain the conversion action against James Ott and to recover for the items sued for, then I charge you that no motion or other action by Jack and Earl Smith would have been successful in the case filed by Phyllis Fox against James Ott."

Appellant contends, however, that the charge ignores the conflict of interest alleged in plaintiff's case and fails to take into account defendants' failure to set up and prosecute a compulsory counterclaim for the plaintiff in Fox v. Ott. This contention is without merit. The charge was accurate, predicated upon the jury's believing in Fox v. Ott that either Fox owned the property or was in possession of the property.

Plaintiff Ott also contends that it was error to refuse to give plaintiff's requested charge thirty-two, which stated that an attorney is liable for the consequences of ignorance or non-observance of the rules of practice of the courts in which he practices. This charge, however, was adequately covered by plaintiff's charge thirty-three. Refusal to give a requested jury charge is not error where the refused charge was fairly and fully covered by another given charge. Jefferson Standard Life Insurance Co. v. Pate, 290 Ala. 110, 274 So.2d 291 (1973).

Plaintiff's requested charge thirty-six was also denied by the trial court. Appellant contends that this charge covered an important part of his case: That the defendants failed to prosecute the...