Walker-Waddell Realty, Inc. v. Kresge
| Decision Date | 16 September 1988 |
| Docket Number | WALKER-WADDELL |
| Parties | REALTY, INC. v. Conrad B. KRESGE and Patricia M. Kresge. Charles D. ROSSER, et al. v. Conrad B. KRESGE, et al. 86-911, 86-912. |
| Court | Alabama Supreme Court |
Robert L. Gonce and Mary Anne Westbrook of Gonce, Young & Westbrook, Florence, for appellants.
Conrad B. Kresge and Patricia M. Kresge, pro se.
Harold G. Peck, Florence for appellee Bohannon Pest Control.
Buyers Conrad and Patricia Kresge sued Rosser, Gardner, and McNees, sellers; Bohannon Pest Control; and Walker-Waddell Realty, Inc., for fraud, wantonness, and breach of contract based on the sale of a house to the Kresges. The house was later found to contain termites. The sellers filed a cross-claim against the realtor and Bohannon; directed verdicts were granted in favor of Bohannon on all counts and in favor of the realtor on the breach of contract count. The case went to the jury against the sellers on fraud, wantonness, and breach of contract; against the realtor on fraud and wantonness; and on the sellers' cross-claim against the realtor. The jury returned a $60,000 general verdict in favor of the buyers against Rosser, Gardner, McNees, and Walker-Waddell Realty, assessing $15,000 against each of the four defendants. 1 The jury awarded $1 to Rosser, Gardner, and McNees on their cross-claim against Walker-Waddell Realty. The trial judge struck that part of the verdict apportioning the damages among the four defendants as surplusage and entered judgment against them in the amount of $60,000. Both the sellers and the realtor filed motions for new trial or, in the alternative, judgment notwithstanding the verdict, which were denied. There are two issues raised on appeal that merit our review.
First, appellants contend that reformation of the apportioned $60,000 judgment was error under Vanguard Indus. Corp. v. Alabama Power Co., 455 So.2d 837 (Ala.1984). In Vanguard, the jury returned a $35,000 verdict in favor of Alabama Power against Vanguard and Hartford Fire Insurance Company as joint tort-feasors. The verdict form apportioned that amount between Vanguard ($25,000) and Hartford ($10,000). The trial court struck this added language as surplusage, and this Court reversed, stating that "[a] jury verdict that assesses separate amounts (whether equal or unequal) against joint tort-feasors is an illegal verdict and is not subject to the trial court's correction by striking certain portions thereof as 'surplusage.' " Vanguard, 455 So.2d at 838.
Reversal is also warranted in this case, as it was in Vanguard, based upon City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25 (1916). Compare Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966). In City of Birmingham, the city and one of its employees were sued as joint tort-feasors in a personal injury action. The jury returned a verdict in favor of the plaintiff and against the defendants separately for $50 each. The trial judge erased the original entry of the verdict on the trial docket sheet and substituted $100 as the judgment. This Court reversed, saying that "[the] plaintiff had the right to have the error corrected, but not in the way attempted by the lower court." City of Birmingham, 196 Ala. at 131, 72 So. at 27. In the present case, the trial court should not have accepted the verdict and struck the added language.
As in City of Birmingham and Vanguard, the Kresges, upon this Court's reversal of the judgment and remand of this cause, may elect within 14 days of this Court's judgment which of the four defendants (Rosser, Gardner, McNees, or Walker-Waddell) it chooses to proceed against, for the sum of $15,000, and must dismiss the other three. Then the trial court will enter the appropriate judgment. Vanguard, 455 So.2d at 838. Otherwise, the trial court is instructed to set aside the judgment appealed from and order a new trial as to each defendant.
The second issue is whether the trial court erred in granting Bohannon Pest Control's motion for directed verdict as to the sellers' cross-claim.
The sellers employed the realtor to sell the 40-year old house for them. After looking at the house three times, the Kresges signed a contract with the sellers, which provided: Thereafter, the realtor contracted with Bohannon to do an inspection of the house,...
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