Rush v. Eason Plumbing & Elec. Contractors, Inc.

Decision Date30 June 1978
Citation361 So.2d 516
PartiesChris C. RUSH et al. v. EASON PLUMBING & ELECTRICAL CONTRACTORS, INC., a corporation. 77-190.
CourtAlabama Supreme Court

Ronald A. Drummond of Livingston & Drummond, Scottsboro, for appellants.

John F. Proctor, Scottsboro, for appellee.

BLOODWORTH, Justice.

Contractor and Surety appeal from a judgment for Subcontractor in a suit on a payment bond, and from a denial of their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We affirm.

Subcontractor, Eason Plumbing & Electrical Contractors, Inc., sought to recover on a payment bond for work performed and materials furnished in the construction of the Goose Pond Colony and Recreation Complex in Scottsboro, Alabama. Contractor, Chris C. Rush, doing business as the Rush Building Company, Inc., was the prime contractor and the principal under the payment bond. Surety, Great American Insurance Company, was the surety under the payment bond, which was payable to the "Public Park and Recreation Board of the City of Scottsboro." After giving written notice to Surety of its claim for plumbing, heating and air conditioning work performed, Subcontractor brought this suit for $19,082.85 allegedly due on its contract, plus interest and attorneys' fees. The jury found for Subcontractor and assessed damages in the amount of $14,800.00.

The basis of Contractor's and Surety's appeal is that the trial court erred in denying their motion for judgment n. o. v. or for a new trial based on an improper award of attorneys' fees to Subcontractor. They contend that attorneys' fees could be awarded only under the public bonding statute, § 39-1-1 (Code 1975), but that the bond in this case does not meet the requirements of that statute, since it is not "payable to the state, county or municipal corporation or subdivision letting the contract." It is contended that the "Public Park and Recreation Board of the City of Scottsboro" is a public corporation, not a subdivision of a municipal corporation.

Rule 50(b), ARCP, dealing with a motion for judgment n. o. v., states: "Not later than 30 days after entry of judgment, a party Who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * * " (Emphasis added.) The record does not show that either Contractor or Surety moved for a directed verdict. A motion for a directed verdict is a prerequisite to a motion for judgment n. o. v. Starling v. Gulf Life Insurance Company, 382 F.2d 701 (5th Cir. 1967). The trial court's denial of the motion for judgment n. o. v. was proper.

In support of their alternative motion for a new trial, Contractor and Surety stated eight grounds, two of which deal with the question of attorneys' fees:

"7. Attorney for plaintiffs was not entitled to an attorney's fee and that portion of the jury's verdict relating to an attorney's fee was erroneous and would require a new trial.

"8. Plaintiff was not entitled to an award of attorney's fees under the law."

There are two reasons why there was no error in overruling the motion for new trial.

First, the assertion of these grounds...

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7 cases
  • Peak v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 7, 2012
    ...motion for a new trial, raise arguments that should have been presented during trial.’ 675 So.2d at 1301.Rush v. Eason Plumbing & Elec. Contractors, Inc., 361 So.2d 516, 518 (Ala.1978) (‘A motion for a new trial cannot replace a timely objection or exception which could, and should, properl......
  • Peak v. State, CR-10-0753
    • United States
    • Alabama Court of Criminal Appeals
    • April 27, 2012
    ...raise arguments that should have been presented during trial.' 675 So. 2d at 1301. Rush v. Eason Plumbing & Elec. Contractors, Inc., 361 So. 2d 516, 518 (Ala. 1978) ('A motion for a new trial cannot replace a timely objection or exception which could, and should, properly be made during the......
  • Lloyd Noland Hosp. v. Durham
    • United States
    • Supreme Court of Alabama
    • January 7, 2005
    ...for a new trial, raise arguments that should have been presented during trial." 675 So.2d at 1301. Rush v. Eason Plumbing & Elec. Contractors, Inc., 361 So.2d 516, 518 (Ala.1978) ("A motion for a new trial cannot replace a timely objection or exception which could, and should, properly be m......
  • Green Oil Co. v. Hornsby
    • United States
    • Supreme Court of Alabama
    • January 13, 1989
    ...directed verdict is a prerequisite to the filing of a motion for a judgment notwithstanding the verdict. Rush v. Eason Plumbing & Electrical Contractors, Inc., 361 So.2d 516 (Ala.1978); Sunshine Homes, Inc. v. Newton, 443 So.2d 921 (Ala.1983); Black v. Black, 469 So.2d 1288 Green Oil Compan......
  • Request a trial to view additional results

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