Poston v. Gaddis

• Decision Date: 22 June 1979
• Citation: 372 So.2d 1099
• Parties: James E. POSTON v. Martha A. T. GADDIS, etc., et al. 77-796.
• Court: Alabama Supreme Court

Page 1099

372 So.2d 1099

James E. POSTON v. Martha A. T. GADDIS, etc., et al.

77-796.

Supreme Court of Alabama.

June 22, 1979.

Joe S. Pittman, Enterprise, for appellant.

Kenneth T. Fuller, of Cassady, Fuller & Marsh, Enterprise, for appellees.

BLOODWORTH, Justice.

This is the second appeal of this case. In Poston v. Gaddis, 335 So.2d 165 (Ala.Civ.App.1976), cert. denied, 335 So.2d 169 (Ala.), the Court of Civil Appeals reversed and remanded a judgment in favor of the plaintiffs Gaddis because the trial court erred in denying defendant Poston the right to a jury trial in the breach of contract action and on the counterclaims. The facts out of which the controversy arose are well stated in the opinion of the Court of Civil Appeals, id. 335 So.2d at 166:

"(Hubert D. Gaddis and Martha A. T. Gaddis) and defendant James E. Poston entered into a contract for the construction and sale of a house in consideration of payment by plaintiffs of $38,500.00. During construction certain changes were made departing from the original plans and specifications. Such changes resulted in an overrun from the contract price. The authorization for many of the changes was disputed in the evidence. Defendant presented plaintiffs a statement for the increased price due to the alleged overrun. Plaintiffs disputed the overrun and authorization of the changes in construction. Defendant refused to convey to plaintiffs unless paid some $43,000.00, and placed the house on the market for sale. (Mr. and Mrs. Gaddis) brought suit against Poston and his wife for specific performance and damages for breach of contract . . .."

"Subsequent to plaintiffs filing suit, defendant sold and conveyed the property to James and Charlotte Oliver. Plaintiffs amended suit and added the Olivers as defendants for specific performance."

"The matter proceeded to trial on complaint and counterclaims. Judgment was entered denying specific performance to plaintiffs, denying relief on defendants' counterclaims but granting damages to plaintiffs for breach of contract."

335 So.2d 165, 166.

Plaintiffs Gaddis did not appeal the denial of their plea for specific performance on the first appeal. After the reversal of the award of money damages on the first appeal, and on remand, plaintiff Martha A. T. Gaddis filed a suggestion of the death of plaintiff Hubert D. Gaddis and, as executrix of the estate of Hubert D. Gaddis represents the estate. The second action was for damages claimed by plaintiffs and for damages claimed by defendant Poston on his counterclaim. The jury found for plaintiffs Gaddis solely in the sum of $10,196.60. Defendant Poston appeals. We reverse and remand.

Jurisdiction

At the outset, we are faced with a jurisdictional problem. Defendant Poston indicates, in his brief, that his counterclaim for damages of $25,000 for breach of the amended construction contract was dismissed on his own motion. But, the record contains no formal order dismissing the counterclaim. No motion to dismiss the counterclaim was either orally made or granted during the course of the trial. The only notation of record is on the margin of the counterclaim by the label "COUNTERCLAIM" where there appears the word "out." Clearly, this notation is not sufficient under Rule 58(b), ARCP to constitute an order of court dismissing the counterclaim, because it does not appear who wrote this word or when it was written and the requisite "intention to adjudicate" cannot be inferred under these circumstances.

The case was tried to the jury solely on plaintiffs' claim, and the jury responded by giving the plaintiffs a verdict. Thus, a threshold jurisdictional question is presented: "In the absence of an order of dismissal of the counterclaim or a Rule 54(b), ARCP order, is the decree of the trial court a final judgment capable of supporting an appeal?" We think so.

In Hingle v. Gann, 368 So.2d 22 (Ala.1979), this Court held that where the trial court's final decree in a boundary dispute established the true boundary between the parties but made no mention of damages for trespass sought by both plaintiffs and defendants, each claim for money damages will be deemed denied by the trial court.

Similarly, in Johnson v. McDole, 394 F.Supp. 1197 (W.D.La.1975), the federal district court in Louisiana (in which an action was brought to enforce a California judgment) held that where a default judgment on a cross-complaint, containing two claims, failed to mention one claim and no evidence was offered on that point at the default judgment hearing, the claim was deemed to have been rejected by the California court.

It is thus we conclude that when no evidence is presented concerning a claim, the court's oral charge to the jury makes no mention of such claim and judgment is rendered on all other issues presented and covered by the oral charge, then the judgment will be considered a final judgment as to all issues. Authorities, supra. On the other hand, if a claim is to be adjudicated in a separate proceeding, the record must reflect an order of severance or an order for a separate trial entered prior to judgment. See Key v. Duke Insurance Agency, 340 So.2d 781 (Ala.1976). In the absence of such an order in this situation, the judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied.

Merits

On this appeal, defendant contends that because there were certain changes made during the construction of the house, this vitiated the original written contract and that the terms of the modified agreement were not sufficiently certain to support an award of money damages. As authority for his position, defendant relies primarily on Dendy v. Anchor Construction Co., 294 Ala. 120, 313 So.2d 164 (1975). However, in Dendy the Court affirmed a denial of specific performance because the trial court could have concluded that the terms of the agreement to sell land were not clearly understood and that there was sufficient evidence of the abandonment of the contract. Thus, there was no abuse of discretion by the trial court. In the instant case since the demand for specific performance was specifically denied in the first action, we regard Dendy as being inapt authority.

The next issue raised is whether the trial court erred in admitting into evidence over objection a deed executed shortly before trial conveying property from defendant Poston to his wife without consideration. Evidence of one's property transfers after the occurrence of some event which may render him liable in damages is admissible to show a consciousness of liability and a purpose to avoid satisfaction of it. Prestwood v. Ivey, 273 Ala. 281, 138 So.2d 713 (1962); Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389 (1949). Thus, the admission of such evidence does not constitute reversible error.

Defendant also contends that the trial court erred in admitting into evidence over objection a title insurance policy issued to the Olivers, purchasers of the house and lot in question, because the insurance policy was outside the framework of the issues and its admission was in violation of Rule 18(c), ARCP. Since the policy was not a liability policy of the defendant, Rule 18(c) does not apply. However, assuming arguendo, that error was committed in the admission of this policy, the error was "harmless" since no substantial rights of defendant Poston were affected. Rule 61, ARCP. The admission of this evidence was clearly not prejudicial.

Defendant next asserts that the trial court erred in giving certain written charges requested by the plaintiffs. These written charges are not of record. Although the Committee Comments to Rule 10, ARAP indicate that Rule 10 abolishes the presumption that if there is any omission from the record of any matter essential to a decision of any question presented on appeal the ruling of the trial court will be deemed correct, in Smith v. Haynes, 364 So.2d 1168 (Ala.1978), this Court held:

"We agree with the Court of Civil Appeals in its reiteration of the long-standing and well-settled principle of our cases that a trial court's findings and conclusions on the facts will not be reviewed when it affirmatively appears there was evidence before the trial court which was not in the record on appeal, and that where all the evidence is not in the record, it is presumed the missing evidence is sufficient to support the judgment appealed from. . . ."

"(W)e think the appellees had a right to rely on the appellant's designation . . . . It is certainly the obligation of the party designating to see that the matters designated are placed in the record."

In the instant case, defendant designated "the entire reporter's record, including all written charges given by the court"; however, it was his obligation to see that all matters designated were placed in the record. Thus, because the written charges requested by the parties are not of record, we cannot review whether the trial court erred in giving the charges requested by plaintiffs.

The next issue raised is whether under the "Dead Man's Statute" (§ 12-21-163, Code 1975), the trial court erred in sustaining plaintiffs' objections to questions concerning the substance of conversations the defendant had with Hubert D. Gaddis, deceased.

Defendant asserts that because he was called by the plaintiffs as an Adverse witness and questioned with regard to various aspects of his "transaction" with the deceased, his incompetency under the Dead Man's Statute was waived. Pertinent parts of his testimony indicating how the "Dead Man's Statute" question arose are as follows:

(DIRECT EXAMINATION)

(By Plaintiffs' Attorney)

"Q You had entered in the contract to build the house for $38,500 had you not?

"A Yes, sir."

"Q Mr. Poston, your contract with Mr. and Mrs. Gaddis provided that they would pay you the sum of $38,500 upon completion of the house, did it not?

"A Yes,...