Tanner v. Ebbole

• Decision Date: 30 December 2011
• Docket Number: 2091121 and 2100172.
• Citation: 88 So.3d 856
• Parties: Victoria Louise TANNER v. Chassity Greech EBBOLE d/b/a LA Body Art. Demented Needle, LLC, and Paul Averette, Jr. v. Chassity Greech Ebbole d/b/a LA Body Art.
• Court: Alabama Court of Civil Appeals

88 So.3d 856

Victoria Louise TANNER

v.Chassity Greech EBBOLE d/b/a LA Body Art.

Demented Needle, LLC, and Paul Averette, Jr.

v.Chassity Greech Ebbole d/b/a LA Body Art.

2091121 and 2100172.

Court of Civil Appeals of Alabama.

Sept. 23, 2011.

Opinion on Return to Remand Dec. 30, 2011.

Patrick Collins, Daphne, for appellant Victoria Louise Tanner.

Derek C.S. Rose of The Rose Law Firm, P.C., Daphne, for appellants Demented Needle, LLC, and Paul Averette, Jr.

Robert E. Clute, Jr., and Neil L. Hanley of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee.

PITTMAN, Judge.

Chassity Greech Ebbole is the proprietor of LA Body Art, a tattoo and body-piercing business that, prior to the events leading to the underlying action, had been operating at 221 Dauphin Street in Mobile since 1995. Paul Averette, Jr., is the proprietor of Demented Needle, LLC, a competing tattoo and body-piercing business that began operating at 205 Dauphin Street in Mobile in May 2007. In 2008, Ebbole moved her business to another location in Mobile and sued Averette, Reginald Weaver,¹ Demented Needle, LLC, and several fictitiously named defendants. The complaint asserted slander, libel, and invasion-of-privacy claims.

The slander claim was based upon the allegation that the defendants had falsely and maliciously stated, among other things, that Ebbole had hepatitis and other communicable diseases and that she had exposed her customers at LA Body Art to those diseases. The libel claim was based upon the allegation that the defendants had posted in the Demented Needle shop an altered representation of Ebbole's tattoo work, with the statement, “L.A. Body Art–Chassity's work. Don't let this happen to you or anyone you know!” The invasion-of-privacy claim was based upon the allegation that the defendants had appropriated a plaster cast of Ebbole's torso, had adorned it with satanic symbols, and had used it as a mannequin for displaying Demented Needle T–shirts for sale.

In August 2009, Ebbole amended the complaint to add Victoria Louise Tanner as a defendant. Ebbole asserted that Tanner was an employee of Demented Needle and that Tanner had committed libel and had participated in a civil conspiracy. Specifically, Ebbole alleged that Tanner had posted on her “MySpace” Web page false and malicious statements that questioned Ebbole's skill as a tattoo artist and body piercer. Ebbole further alleged that Tanner had conspired with Averette and Demented Needle to deprive Ebbole of business and to cause her mental anguish.

After the trial court entered a default judgment against Weaver, see supra note 1, Ebbole's claims against Averette, Tanner, and Demented Needle, LLC (“the defendants”), were tried to a jury. The defendants moved for a judgment as a matter of law (“JML”) at the close of Ebbole's case and at the close of all the evidence. The trial court denied the JML motions. The jury returned a verdict awarding Ebbole zero compensatory damages from any of the defendants but awarding punitive damages as follows: $200,000 against Demented Needle, LLC; $100,000 against Averette; and $10,000 against Tanner. Over the defendants' objections, the trial court refused to accept the verdict, recharged the jurors, and gave them new verdict forms, instructing them as follows:

“THE COURT: All right. Ladies and gentlemen, ... [t]he reason I sent you all back is what we got from y'all is technically an improper verdict form....

“....

“To remind you again you see from your form, there are two types of damages, compensatory damages and punitive damages.... Compensatory damages are meant to compensate an injured party. Punitive damages are meant to punish a party committing a wrong and to deter that party from committing similar wrongs and also to deter perhaps other folks from committing similar wrongs in the future.

“All right. In order to award punitive damages there must be ... an award of some amount of compensatory damages. If you find that [Ebbole] has proven each element of the claims for libel and/or slander or the other claims under the law that I've given you but you find that [Ebbole] has not proven any substantial injury caused by the statements complained of or by the other acts complained of, then you may find for [Ebbole] and award nominal compensatory damages to [Ebbole]. Nominal compensatory damages are damages in a very small amount, usually one dollar, and their main purpose is to vindicate [Ebbole]—and her reputation by showing that [Ebbole] prevailed.”

After being reinstructed, the jury returned a verdict awarding compensatory damages of $1 against each of the defendants and leaving in place the original punitive-damages awards. The trial court accepted the jury's second verdict and entered a judgment accordingly. The defendants filed renewed motions for a JML or, alternatively, for a new trial or for a remittitur; only Tanner requested a hearing on her postjudgment motion.

After their postjudgment motions were denied, Tanner, Averette, and Demented Needle appealed. The supreme court transferred the appeal taken by Averette and Demented Needle to this court, pursuant to Ala.Code 1975, § 12–2–7(6), and it was consolidated with Tanner's appeal, which was taken directly to this court.

Standard of Review

Our supreme court has outlined the following standard of review for a ruling on a JML motion:

“ ‘ “When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12–21–12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovantand entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).” ’ ”

Norfolk Southern Ry. Co. v. Johnson, 75 So.3d 624, 638–39 (Ala.2011) (quoting CSX Transp., Inc. v. Miller, 46 So.3d 434, 450–51 (Ala.2010), quoting in turn Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).

The first two issues to be considered involve arguments raised only by Averette and Demented Needle; the third issue involves an argument raised only by Tanner; and the fourth issue involves arguments raised by all three appellants.

I. Refusal to Accept the First Verdict

Averette and Demented Needle argue that the trial court erred in refusing to accept the jury's first verdict, which assessed zero compensatory damages against the defendants. Averette and Demented Needle contend that Ebbole presented no evidence indicating either that her business had suffered an economic loss or that she had personally suffered any emotional distress as a result of the defendants' conduct. Accordingly, they say, the first verdict reflected the jurors' finding that Ebbole simply suffered no compensable injury, and the second verdict, they suggest, is attributable to a desire, after the trial court's instruction regarding nominal damages, to award $1 and to leave the courtroom and is not supported by the evidence presented. That argument is neither borne out by the record nor supported by Alabama law.

Ebbole submitted her federal income-tax returns for the years 2004 through 2008. Her average income for the years 2004 through 2007 was $30,122, with no income for a single year falling below $28,000. In 2008, however, Ebbole's income dropped to $20,009—approximately one-third less than the average of the previous four years. Ebbole testified that she had suffered from nausea and depression and had consulted a psychiatrist as a result of the defendants' conduct.

Moreover, even if Ebbole had presented no evidence of special damages, such as lost income, her general damages would be presumed because the defendants' words were slanderous per se. “[W]hen the plaintiff has proven slander per se, the law presumes injury to reputation and mental suffering.” Liberty Nat'l Life Ins. Co. v. Daugherty, 840 So.2d 152, 162 (Ala.2002). “Once a communication is found to be slanderous per se, a plaintiff may recover nominal or compensatory damages without proof of actual harm to his reputation or proof of any other harm.” Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 897 (Ala.2004).

“ ‘When words are slanderous in themselves, the right to damages follows as a consequence from speaking in a slanderous way, because it is the incalculable tendency of slander to injure the person slandered, in his reputation, profession, trade, or business. It would frequently be difficult to prove any pecuniary injury from slander, and always impossible to establish its full extent.... Therefore, when words are actionable in themselves, the law implies damages.’ Johnson v. Robertson, 8 Port. [ (Ala.) 486,] 489 [ (1839) ].”

Webb v. Gray, 181 Ala. 408, 413, 62 So. 194, 196 (1913) (quoted in Johnson Publ'g Co. v. Davis, 271 Ala. 474, 488, 124 So.2d 441, 451 (1960)). See also Restatement (Second) of Torts § 572 (1977) (stating that “[o]ne who publishes a slander that imputes to another an existing venereal diseaseor other loathsome and communicable disease is subject to liability without proof...