PRUDENTIAL BALLARD REALTY CO. INC. v. Weatherly

• Decision Date: 28 July 2000
• Citation: 792 So.2d 1045
• Parties: PRUDENTIAL BALLARD REALTY COMPANY, INC., and Hugh Weimorts v. James WEATHERLY and Carol Weatherly.
• Court: Alabama Supreme Court

792 So.2d 1045

PRUDENTIAL BALLARD REALTY COMPANY, INC., and Hugh Weimorts v. James WEATHERLY and Carol Weatherly.

1981671.

Supreme Court of Alabama.

July 28, 2000.

Opinion Overruling Rehearing December 1, 2000.

Dissenting Opinion on Overruling of Rehearing December 22, 2000.

E. Hamilton Wilson, Jr., Clyde C. Owen, Jr., and T. Cowin Knowles of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellants.

Edward B. Parker II, Montgomery, for appellees.

Les Hayes III of Melton, Espy, Williams & Hayes, Montgomery, for amicus curiae Alabama Association of Realtors.

On Application for Rehearing

PER CURIAM.

The opinion released April 14, 2000, is withdrawn and the following is substituted therefor.

The defendants Prudential Ballard Realty Company, Inc., and its agent Hugh Weimorts appeal from a judgment entered on a jury verdict in favor of the plaintiffs James Weatherly and his wife Carol Weatherly. The Weatherlys had sued the defendants for damages based on fraudulent misrepresentations they allege the defendants made while the defendants had the Weatherlys' home listed for sale. We affirm.

"In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party...." Delchamps, Inc. v. Bryant, 738 So.2d 824, 831 (Ala.1999). Considered in that manner, the evidence suggests the following facts: In May 1995, the Weatherlys listed their Montgomery home for sale with Weimorts. Weimorts then assisted the Weatherlys in finding a home to purchase in Lowndes County. The Weatherlys signed a contract to purchase a home in Lowndes County, but the contract was contingent upon the Weatherlys' finding a purchaser for their Montgomery home before August 30, 1995. On August 28, 1995, Eddie Stallworth and his wife signed a contract to purchase the Weatherlys' Montgomery home. The Stallworths' contract was contingent on the Stallworths' being able to obtain financing for the purchase. Weimorts assured the Weatherlys that the Stallworths had the financing to purchase the Weatherlys' home, when in fact they did not. The Weatherlys told Weimorts that they could not afford to own both homes at the same time. Based upon Weimorts' misrepresentations, the Weatherlys closed on the purchase of the Lowndes County home and, anticipating closing on the sale of the Montgomery home, allowed the Stallworths to move into the Montgomery home. The Stallworths, however, were never able to get financing for the purchase of the Montgomery home; they began making rental payments to the Weatherlys. The Weatherlys did not sell the Montgomery home until October 1996. The Weatherlys allege that they suffered financial injury and mental anguish from October 1995 to October 1996, the 12-month period during which they owned both homes. The Weatherlys filed an action in Lowndes County to recover damages based upon the defendants' misrepresentations. The jury awarded the Weatherlys $250,000 in compensatory damages and $2.5 million in punitive damages. The trial court denied the defendants' motion for a new trial and their motion for a judgment as a matter of law, but conditioned its denial of a new trial on the Weatherlys' accepting a remittitur of punitive damages of $1,250,000. The Weatherlys accepted the remittitur.

The following issues are presented for review:

1. Whether the defendants were entitled to a judgment as a matter of law on the ground that the evidence was insufficient to submit the plaintiffs' claims to the jury;

2. Whether the defendants were entitled to a new trial on the ground that the plaintiffs engaged in racial discrimination in the use of their peremptory challenges;

3. Whether the defendants were entitled to a new trial on the ground that the trial court refused to give three of their requested jury instructions (nos. 53, 63, and 65);

4. Whether the defendants were entitled to a new trial on the ground that the compensatory-damages award was excessive; and,

5. Whether the defendants were entitled to a new trial on the ground that the punitive-damages award (as remitted) was excessive.

With respect to the first issue, we note that we have carefully considered the defendants' argument that the evidence was insufficient for the trial court to submit the Weatherlys' claims to the jury. We conclude that the trial court properly denied the defendants' motion for a judgment as a matter of law. The evidence created fact questions for the jury to resolve.

As to the second issue, the record indicates that the jury was selected from a panel of 35 veniremembers. Of that panel, 26 members were black; 9 were white. The Weatherlys' attorney used nine of his peremptory challenges to remove white veniremembers and two of his peremptory challenges to remove black veniremembers. The Weatherlys and Weimorts are white. The defendants, relying on a number of cases, including Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), challenged the Weatherlys' use of their peremptory challenges and argued that the challenges were motivated by impermissible racial discrimination as evidenced by the removal from the panel of all nine white veniremembers. Following the procedure set out in Ex parte Branch, 526 So.2d 609 (Ala.1987), the trial court asked the Weatherlys to explain the reasons for their challenges. The defendants argue that the reasons given were pretextual. The trial court found the reasons given to be race neutral. We have reviewed the reasons given by the Weatherlys for each challenge, and we do not find the trial court's findings on this issue to be clearly erroneous. Ex parte Branch, supra

; Ex parte Thomas, 659 So.2d 3 (Ala. 1994) (discussing the "clearly erroneous" standard for reviewing the trial court's findings of fact on a Batson challenge).

In connection with their third issue, the defendants argue that the trial court erred to reversal in refusing three of their requested jury instructions. The record indicates, however, that requested instruction no. 53, which deals with one's duty to mitigate damages, was properly refused because the defendants did not affirmatively plead mitigation of damages as a defense, either in their answer or at any time during the trial. Any matter constituting an avoidance or affirmative defense, such as mitigation of damages, must be affirmatively pleaded. See Rule 8(c), Ala. R.Civ.P.; Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). Although the defendants did raise the issue just before the case was submitted to the jury (by objecting to the trial court's refusal to give requested instruction no. 53), the evidence relied on by the defendants in support of their mitigation-of-damages argument was sufficiently within the proof of the issues that were properly before the court to preclude the operation of Rule 15(b), Ala. R.Civ.P. See Harkins & Co. v. Lewis, supra. The trial court did not err in denying the defendants' requested instruction no. 53.

Furthermore, we find no error in the trial court's refusal of the defendants' requested instructions nos. 63 and 65. Section 6-11-20, Ala.Code 1975, provides, in part:

"(a) Punitive damages may not be awarded in any civil action, except civil actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff. Nothing contained in this article is to be construed as creating any claim for punitive damages which is not now present under the law of the State of Alabama.

"(b) As used in this article, the following definitions shall apply:

"(1) FRAUD. An intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury.

"(2) MALICE. The intentional doing of a wrongful act without just cause or excuse, either:

"a. With an intent to injure the person or property of another person or entity, or

"b. Under such circumstances that the law will imply an evil intent.

". . . .

"(5) OPPRESSION. Subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights."

The trial court instructed the jury in part as follows:

"If you are reasonably satisfied that the Defendants or either of them has been shown by clear and convincing evidence to be guilty of an intentional misrepresentation, deceit, or a concealment of a material fact that the Defendant had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the Defendant of thereby depriving the Plaintiff of property or legal rights or otherwise causing injury and the Plaintiff did suffer such injury or damage as a proximate result of the fraud or deceit, then in your discretion you may award punitive damages in addition to the actual damages."

Requested instruction no. 63 set out the definition of "malice," as stated in § 6-11-20(b)(2); requested instruction no. 65 set out the definition of "oppression," as stated in § 6-11-20(b)(5). Relying on § 6-11-20(b)(1), the plaintiffs based their fraud claims, with the exception of their reckless-fraud claim, on allegations of intentional misrepresentation, deceit, and suppression. Section 6-11-20(b)(1) defines "fraud" as "[a]n intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose [that] was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury." That section also states that in order to award...