Wyser v. RAY SUMLIN CONST. CO., INC.

"It is hereby ordered, adjudged and decreed by this Court that the Motion for New Trial is denied. Judgment of the jury is remitted to ($125,000) One Hundred Twenty-Five Thousand Dollars. If the Plaintiff refuses to accept the remittance a new trial will be ordered."

"Remittitur has been recognized in Alabama for many years as a legitimate device to end litigation. Rule 59(f), Ala.R.Civ.P., promulgated by this Court, expressly provides that '[t]he [trial] court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial . . .,' but provides that 'the acceptance of [the] remittitur by the plaintiff shall not prejudice his right to raise, on appeal by the defendant, his right to have the verdict reinstated in its full amount.' This Court is also independently authorized to require remittitur in an appropriate case. Code 1975, §12-22-71, provides:

" 'When an appeal is taken to the appropriate appellate court from the judgment of any court and the appellate court shall be of the opinion that thePage 240case should be reversed because the judgment of the lower court is excessive and that there is no other ground of reversal, the appellate court shall notify the appellee of the amount which it deems in excess of the just and proper amount of recovery and require the appellee, within a time to be stated in said notice, to remit such amount upon penalty of a reversal of the case. If the appellee does not, within the time stated in such notice or within such further time as may be granted by the court for good reason file a remittitur of such excessive amount, the appellate court shall reverse and remand the case; but, if the appellee shall file with the court a remittitur of the amount deemed excessive by the court, the appellate court shall reduce the amount of the judgment accordingly and shall affirm the case and enter a judgment for such reduced amount, which judgment so entered shall be and remain the judgment of the lower court and shall date back to the time of the entry or rendition of the judgment in the lower court.'

"In various cases, this Court has generally followed the principle that a trial court is accorded a large measure of discretion in determining whether to grant a remittitur.Todd v. United Steelworkers of America,441 So.2d 889,892(Ala. 1983). We have also generally held that when a trial court exercises its discretion to order a remittitur, its decision is presumed correct and will not be reversed on appeal absent evidence of an abuse of discretion.Id.

"Illustrative of the action this Court has taken in cases involving claims of excessive judgments, are the following:

"The trial court ordered remittitur, and this Court affirmed:Todd v. United Steelworkers of America, AFL-CIO,441 So.2d 889(Ala. 1983);Winchester v. McCulloch BrothersGarage, Inc.,388 So.2d 927(Ala. 1980);InternationalResorts, Inc. v. Lambert,350 So.2d 391(Ala. 1977);Stead v.Blue Cross-Blue Shield of Alabama,346 So.2d 1140(Ala. 1977);Taylor v. Birmingham News Co.,341 So.2d 689(Ala. 1977);Holcombe v. Whitaker,294 Ala. 430,318 So.2d 289(1975).

"The trial court ordered remittitur and this Court reversed:Shiloh Construction Co. v. Mercury ConstructionCorp.,392 So.2d 809(Ala. 1980);B M Homes, Inc. v. Hogan,376 So.2d 667(Ala. 1979);Alabama Farm Bureau Mutual CasualtyInsurance Co. v. Guthrie,338 So.2d 1276(Ala. 1976).

"The trial court refused to grant remittitur and this Court affirmed:American Pioneer Life Insurance Co. v. Sandlin,470 So.2d 657(Ala. 1985);White v. Fridge,461 So.2d 793(Ala. 1984).

"The trial court refused to grant remittitur and this Court reversed:Coca-Cola Bottling Co., Montgomery v. Parker,451 So.2d 786(Ala. 1984);Gulf Atlantic Life Insurance Co. v.Barnes,405 So.2d 916(Ala. 1981);General Electric CreditCorp. v. Alford Associates, Inc.,374 So.2d 1316(Ala. 1979);San-Ann Service Inc. v. Bedingfield,293 Ala. 469,305 So.2d 374(1974);Foodtown Stores, Inc. v.Patterson,282 Ala. 477,213 So.2d 211(1968).

"As can readily be seen by a review of these cases, this Court has not yet adopted specific standards for courts to apply in granting or denying remittitur. We believe that the time has come for this Court to study the remittitur practice in Alabama, and to adopt a rule or rules of practice which would ensure the protection of the jury system and the parties' right to a jury trial, but which would also protect the public's interest in decreased court costs and a speedy and just determination of every case upon the merits. We do not adopt those standards in this case, because to do so would effect a major change in current remittitur practice, and such a major change should be adopted only after adequate notice and deliberate study by the full Court.

"The Court considered the possibility of remanding this cause to the trial court, with directions, to require the trial judge to state what may have induced the verdicts which he found to be excessive, but we are convinced that present law does not require that the trial judge state any reasonsPage 241why he granted remittitur. InWilliams v. Williams,283 Ala. 292,295,216 So.2d 181,183(1968), this Court held:

" 'The amount of damages awarded in the verdict and judgment, in the light of the facts disclosed by the evidence, often furnishes the determining data.Sturdivant v. Crawford et al.,240 Ala. 383,199 So. 537. Where a court concludes that damages are inadequate, or excessive, it is not necessary that it declare what may have induced a wrongful award in the amount of damages assessed.'

". . . This Court has long recognized that appellate review of remittitur 'involves a review of [the] trial court's judgment based upon [the trial judge's] observation of all the witnesses who testified in the case and other incidents of the trial which cannot be reflected in the transcript and which are not available for observation by us.'Airheart v. Green,267 Ala. 689,693,104 So.2d 687,690(1958).

"InAirheart, this Court did conclude that in a case involving our homicide statute, as this case does, 'the amount of the verdict and the severity of the punishment are graded according to the degree of culpability. . . .'267 Ala. at 693,104 So.2d at 691. The trial judge very well may have applied theAirheartrule in this case.

"For an excellent discussion of the subject of remittitur in Alabama, see Commentary,Remittitur Practice in Alabama, 34 Ala.L.Rev. 275 (1983)."

"The jury returned a verdict of $12,000. The trial court ordered a remittitur of all but $2,000 without an explanation for its arriving at this particular sum. Thus, we are again asked to review a trial court order which has reduced a jury verdict without any explanation of the criteria utilized in doing so. InGeneral Motors Corp. v.Edwards,482 So.2d 1176(Ala. 1985), when similarly situated, a majority of the Court expressed its discomfort with deciding the propriety of trial court action without any established standards for the trial court's guidance and suggested that our Advisory Committee on Rules of Civil Procedure be called upon to suggest appropriate standards. Further deliberation has convinced us that the responsibility to adopt standards lies with this Court.

"We begin by recognizing that the right to a trial by jury is a fundamental, constitutionally guaranteed right, Art. I, § 11, Const. of 1901, and, therefore, that a jury verdict may not be set aside unless the verdict is flawed, thereby losing its constitutional protection. It is only in those cases that a trial court, pursuant to A.R.Civ.P. 59(f), and this Court, pursuant to Code 1975, §12-22-71, may interfere with a jury verdict. Insofar as damages are concerned, a jury verdict may be flawed in two ways. First, it may include or exclude a sum which is clearly recoverable or not as a matter of law, or which is totally unsupported by the evidence, where there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure. In these situations, a trial court may, and should, reduce or increase the amount of the verdict to reflect the amount to which the parties are entitled as a matter of law. Second, a jury verdict may be flawed because it results, not from the evidence and applicable law, but from bias, passion, prejudice, corruption, or other improper motive. It is this category of cases that most troubles both trial and appellate courts.

"The cases have consistently held that in deciding whether a jury verdict is excessive because it is the result of passion, bias, corruption, or other improper motive, a trial judge may not substitute his judgment for that of the jury.B M Homes, Inc. v. Hogan,376 So.2d 667(Ala. 1979);Vest v. Gay,275 Ala. 286,154 So.2d 297Page 242(1963). We have also recognized that the trial judge is better positioned to decide whether the verdict is so flawed. He has the advantage of observing all of the parties to the trial — plaintiff and defendant and their respective attorneys, as well as the jury and its reaction to all of the others. There are many facets of a trial that can never be captured in a record, so that the appellate courts are at a special disadvantage when they are called upon to review trial court action in this sensitive area, although increasingly they are required to do so. Therefore, it is not only appropriate, but indeed our duty, to require the trial courts to reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages.

"Our cases reflect a number of factors which are appropriate for the trial court's consideration: The culpability of the defendant's conduct,Ridout's-Brown Service, Inc. v. Holloway,397 So.2d 125(Ala. 1981); the desirability of discouraging others from similar conduct,Ford Motor Credit Co.v. Washington,420 So.2d 14(Ala. 1982); the impact upon the parties,Alabama Power Co. v. Hussey,291 Ala. 586,285 So.2d 92(1973). These are by no means exclusive. Justice may well require consideration of other factors, such as the impact on innocent third parties. We make no attempt to enumerate all of the factors which may be considered by the trial court. We instead leave that to its sound discretion. We do emphasize, however, that only where the record establishes that the award is excessive or inadequate as a matter of law, or where it is established and reflected in the record that the verdict is based upon bias, passion, corruption, or other improper motive may a trial court order a new trial or remittitur. Only by requiring that a record be made can this Court adequately discharge its role of appellate review of trial court action in either granting or refusing to grant a new trial where remittitur is granted or denied.

"In adopting this new procedure, we emphasize that no substantial rule of law is changed. A trial court may not conditionally reduce a jury verdict merely because it believes the verdict overcompensates the plaintiff;B M Homes, Inc. v.Hogan,376 So.2d 667(Ala. 1979);Vest v. Gay,275 Ala. 286,154 So.2d 297(1963); nor may the trial court substitute its judgment for that of the jury. We also reaffirm those cases which hold that, in considering the adequacy or excessiveness of a verdict, there can be no ironclad rule, and each case must be determined by its own facts.Williamsv. Williams,283 Ala. 292,216 So.2d 181(1968).

"We simply now require the trial courts to state for the record the factors considered in either granting or denying a motion for new trial based upon the alleged excessiveness or inadequacy of a jury verdict. We know of no other way by which this Court can discharge fairly its role of review."

"The law in Alabama is quite clear that while it is no defense to a claim based on wanton misconduct on the part of the defendant, contributory negligence is a complete defense to an action based on negligence."