author: STUART, Justice.

text:
    Ex parte Randall TURNER. (In re Tawanda Ware, as next friend of Demonica Ware v. Randall Turner et al.)
    1010861.
    Supreme Court of Alabama.
    June 21, 2002.

      Mark S. Boardman and Alicia Fritz Bennett of Boardman, Carr, Weed & Hutche-son, P.C., Chelsea, for petitioner.
   STUART, Justice.

Randall Turner, an assistant principal at Bellingrath Junior High School in Montgomery, filed this petition for a writ of mandamus directing Judge William A. Shashy to dismiss all claims against him based on qualified or State-agent immunity.

Turner states that on November 21, 1998, while patrolling the halls of Bellin-grath Junior High School, he stopped De-monica Ware, who was 12 years old at the time, and asked her to present her “hall pass.” Turner asserts that he did not know Demonica or know whether she was enrolled as a student at Bellingrath Junior High School. According to Turner, Demo-nica refused to produce a pass; she loudly resisted his efforts to stop her for questioning; and she tried to force her way past Turner. Turner says that when he grabbed Demonica’s arm to stop her, both he and Demonica fell to the floor. Demo-nica hit her head on a locker and suffered a bruise, but there were no lacerations or broken bones. Demonica, who it turns out was a student at Bellingrath, was expelled from school.

On November 22, 2000, Tawanda Ware, as next of friend of Demonica, sued Turner in his individual capacity and in his official capacity as assistant principal of Bellin-grath Junior High School; she also named as defendants the Montgomery County Board of Education and the State Board of Education. In her complaint, Ware alleged assault and battery, 42 U.S.C. § 1983 civil rights violations, negligence, and intentional infliction of emotional distress (the tort of outrage) and claimed damages for “loss of services of a child.” Turner filed a motion for a summary judgment asserting that he was immune from civil liability on the basis of State-agent immunity and that he enjoyed qualified immunity from the § 1983 claims. In his petition, Turner says the trial court dismissed the other defendants, but denied his motion for a summary judgment.

On January 29, 2002, Turner filed this petition for a writ of mandamus directing Judge Shashy to dismiss all claims asserted against him. On March 15, 2002, this Court ordered Ware to file an answer and a brief within 14 days. “[A]n answer in a mandamus proceeding is very important, as is evidenced by this Court’s holding that uncontroverted aver-ments of fact stated in an answer should be taken as true.” Ex parte Sharpe, 513 So.2d 609, 610 (Ala.1987). See also Ex parte Helbling, 278 Ala. 234, 177 So.2d 454 (1965). Moreover, mandamus relief may not be granted unless the respondent is granted an opportunity to answer the allegations in the petition. Sharpe, 513 So.2d 609; see also Rule 21(a), Ala.R.App.P.

In Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 327, 260 So.2d 589, 596 (1972), a case decided before the adoption of Rule 21, Ala.R.App.P., this Court stated:

“[T]he answer does not contain a denial of any of the facts stated in the petition for mandamus, nor does it contain aver-ments of other facts sufficient in law to defeat the petitioner’s application. It follows that the averments of fact in the petition for mandamus ... will be taken as true. — State ex rel. St. Peter’s M. Baptist Church v. Smith, [215 Ala. 449, 111 So. 28 (Ala.1927)]; Ex parte Cullinan, [224 Ala. 263, 139 So. 255 (Ala.1932)].”

Ware did not comply with this Court’s order; she did not file an answer and brief. Ware’s failure to respond to the allegations in Turner’s petition for a writ of mandamus compels this Court to consider the averments of fact in Turner’s petition as true.

Standard of Review

“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996)....
“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).”

Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000).

Analysis

Turner asks this Court to issue a writ of mandamus directing the trial court to enter a summary judgment in his favor, on the ground that he is protected against civil liability by the doctrines of State-agent immunity and qualified immunity.

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), Justice Lyons restated the rule governing State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting nr attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405 (emphasis added).

We review Turner’s claim of immunity by the standards set forth in Cran-man. Turner is protected under the doctrine of State-agent immunity because his actions occurred while he was discharging his duties in educating students. The evidence before us indicates that Turner’s decision to detain and question Ware was made while he was acting in his official capacity. In support of his motion for a summary judgment, Turner filed an affidavit, which contains uncontroverted sworn statements of fact that fit his conduct within category “(5)” of the Cranman restatement quoted above and that affirmatively negate exception “(2)” for acts committed willfully, etc. The affidavit describes the educational duty that Turner was discharging, provides the rule that imposed that duty, and demonstrates that Turner was exercising his judgment in discharging that duty. Turner also establishes his good faith, his lack of malice, his authority, and the absence of a mistake of law in the affidavit. Therefore, Turner’s affidavit establishes State-agent immunity as to the state-law causes of action.

We recognize that, with the benefit of hindsight, one might question the wisdom of Turner’s method of detaining Ware; we will not, however, second-guess his decision. Viewing the facts in a light most favorable to Ware, as we must, see Guaranty Funding, supra, we conclude that there is insufficient evidence indicating that Turner acted “willfully, maliciously, fraudulently, in bad faith” in exercising his judgment when he confronted Ware. State-agent immunity protects educators, as agents of the State, in their exercise of judgment in educating students. The trial court erred in denying Turner’s motion for a summary judgment as to the state-law causes of action.

Turner further asks this Court to direct the trial court to enter a summary judgment in his favor with regard to the § 1988 claim on the ground that his actions were protected by qualified immunity.

“ ‘To state a claim under § 1983, the plaintiff must allege facts constituting a deprivation of a constitutional right, under color of state law.’ C.B. v. Bobo, 659 So.2d [98] at 102 [ (Ala.1995) ]. Furthermore, in order to recover against a teacher or a school administrator under § 1983, a student must establish not only that he or she was deprived of a constitutional right, but also that the person who deprived him or her of that right did so in bad faith or with deliberate indifference to his or her rights. Id.”

Boyett v. Tomberlin, 678 So.2d 124, 127 (Ala.Civ.App.1995). “School officials are entitled to qualified immunity from § 1983 liability for good faith, nonmalicious actions taken to fulfill their official duties. Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975).” Byrd v. Sullivan, 657 So.2d 830, 833 (Ala.1995).

Turner’s affidavit provides uncon-troverted sworn statements that sufficiently establish qualified immunity from the § 1983 action. No evidence was presented indicating that Turner acted in bad faith or maliciously in handling the incident. Nothing before us indicates that Turner deprived Ware of her rights under the United States Constitution. The trial court erred in denying Turner’s motion for a summary judgment on the ground of qualified immunity from the § 1983 action.

Conclusion

Turner has shown that he has a clear legal right to the relief sought. The trial court is directed to enter a summary judgment in favor of Turner.

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

      . Throughout his petition to this Court and his pleadings in the trial court, Turner asserts "discretionary-function immunity" as a ground for relief. This Court in Ex parte Cranman, 792 So.2d 392 (Ala.2000), abandoned the use of the term "discretionary-function immunity” in favor of the term "State-agent immunity.” Therefore, we have analyzed this petition in terms of "State-agent immunity.”


source: Caselaw Access Project

author:
JOHNSTONE, Justice. HOUSTON, Justice
      LYONS, Justice

license: Public Domain

text:
    Ex parte FIRST USA BANK, N.A. (In re Wilbur Leroy Davis v. First USA Bank, N.A.).
    1000692.
    Supreme Court of Alabama.
    June 28, 2002.
    Michael L. Edwards, Steven F. Casey, and Cynthia G. Burnside of Balch & Bing-ham, L.L.P., Birmingham; and Jon B. Terry of Bains & Terry, Bessemer, for petitioner.
    Lloyd W. Gathings and Honora M. Gath-ings of Gathings, Kennedy & Associates, Birmingham; and E.L. Brobston of Brob-ston & Brobston, Bessemer, for respondent.
    Deborah Alley Smith of Christian & Small, L.L.P., Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.
   JOHNSTONE, Justice.

WRIT DENIED.

MOORE, C.J., and BROWN, J., concur.

HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ., concur specially.

STUART, J., dissents.

HOUSTON, Justice

(concurring specially).

I join Justice Lyons’s special concurrence.

Based on the material before this Court at this time, I cannot hold that the trial court abused its discretion in permitting the amendment to the complaint. If upon the trial of this action, a judgment exceeding $75,000, exclusive of interest and costs, is entered in favor of the plaintiff and against the defendant, and the facts in the record show an abuse of 28 U.S.C. § 1441, then this Court can take the necessary action to prevent such abuse. See Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1192 n. 3 (Ala.2001).

LYONS, Justice

(concurring specially).

The petitioner seeks relief from the trial court’s order allowing an amendment of the ad damnum clause more than one year after commencement of the action. The original complaint sought damages in the amount of $74,900, just $100.01 less than the jurisdictional amount necessary for removal to federal court. See 28 U.S.C. § 1332(a).

I find no abuse of discretion in allowing the amendment. I therefore concur to deny the petition. However, the Standing Committee on Alabama Rules of Civil Procedure should address the question of amendments either increasing the amount in controversy or removing a stated amount in controversy after the expiration of the one-year period for removal provided by 28 U.S.C. § 1446(h). See, e.g., Ark. R. Civ. P. 8(a) (demand for an unspecified amount limits recovery to a sum less than the amount required for federal court jurisdiction) or S.C. R. Civ. P. 8(a) (a party pleading a stated sum as an upper limit thereby limits that party’s claim).

HOUSTON, SEE, HARWOOD, and WOODALL, JJ., concur.


author: MADDOX, Retired Justice.

text:
    PRATT CAPITAL, INC. v. Thomas BOYETT and Nelda Boyett.
    1001653.
    Supreme Court of Alabama.
    June 28, 2002.
    J. Myron Smith, Prattville, for appellant.

      Clifford W. Cleveland and Kelly Tipton Lee of Cleveland & Colley, P.C., Prattville, for appellees Thomas Boyett and Nelda Boyett.
    Harry W. Gamble, Jr., of Gamble, Gamble & Caíame, L.L.C., Selma, for appellee The Peoples Bank & Trust Company.
   MADDOX, Retired Justice.

The dispositive issue presented by this appeal is whether the plaintiffs can amend the complaint to add new defendants after a certificate of judgment had already been entered against the defendant named in the original complaint, where no appeal was taken from that judgment. Because we hold that, based on the facts of this case, the Alabama Rules of Civil Procedure do not permit the trial court to allow the plaintiffs to amend their complaint to add additional defendants after a certificate of judgment has been entered, we reverse the judgment of the trial court that permitted the plaintiffs to so amend their complaint, and we remand the cause to the trial court for further proceedings.

Facts

Because a statement of the facts of this case is helpful in understanding the reasons we conclude that the judgment of the trial court should be reversed, we set out those facts for a more complete understanding of what led to the original dispute between the original parties and why we conclude that the plaintiffs should not have been permitted to amend their original complaint to add Pratt Capital, Inc. (“Pratt Capital”), as a defendant. We will, however, confine our discussion to those facts and the procedural.history that relate to the issue presented.

On August 27, 1999, the plaintiffs, Thomas Boyett and Nelda Boyett, individually and doing business as Prattville Roller Rink (hereinafter referred to collectively as “the Boyetts”), sued George Creel in the Autauga Circuit Court, alleging breach of contract, fraud, and conversion. The Boyetts alleged that they and Creel had agreed to acquire property in Elmore County on which they planned to build an entertainment facility to be known as the Action Zone. The Boyetts alleged that they had provided $61,500 for the purchase of the property and over $80,000 for improvements. They said that Creel had agreed to provide similar amounts of cash but that he did not. They also alleged that Creel had had title to the property placed in his name only, contrary to their agreement, and that on July 19, 1999, Creel had told them that the building would not be used for the Action Zone, but would be used for a restaurant. The Boyetts alleged that Creel stated that he would return the money the Boyetts had already invested within 30 days, i.e., by August 18, 1999. When Creel did not return the money, the Boy-etts sued.

On September 27, 1999, Creel filed an answer. Neither party requested a trial by jury, and on October 25, 1999, the case was set for trial on February 1, 2000.

On November 5, 1999, Creel’s attorney at that time filed a motion to withdraw as counsel, alleging that Creel had not complied with the employment agreement between Creel and him. On February 1, 2000, the case was continued, apparently because Creel did not attend the trial set on that date.

On March 1, 2000, the Boyetts filed a request for admissions, a motion to shorten time, and a motion to set the case for trial. On March 7, 2000, the court ordered that Creel respond to the request for admissions on or before March 22, 2000. On March 21, 2000, the case was set for trial on April 25, 2000, at 1:30 p.m.

On March 22, 2000, the Boyetts filed a motion to compel discovery. In their motion they alleged that Creel had failed to respond to the request for admissions. On March 22, 2000, the court ordered that Creel respond to the request for admissions on or before April 5, 2000. On March 24, 2000, the Boyetts filed a motion for a summary judgment, alleging that, based on Creel’s failure to respond to the request for admissions, there was no genuine issue of material fact and they were entitled to a judgment as a matter of law.

On March 29, 2000, the Boyetts’ motion for a summary judgment was set for hearing on April 25, 2000, at 9:00 a.m. On April 19, 2000, Creel, represented by attorney J. Myron Smith, apparently responded to the request for admissions, but his response does not appear in the record before us. On April 22, 2000, just three days before the hearing on the motion for a summary judgment, Creel deeded the property that is the subject of this dispute to Pratt Capital; the president of Pratt Capital was Creel’s attorney, J. Myron Smith. On April 25, 2000, the trial court entered a summary judgment for the Boyetts against Creel. The docket notation states, “Case called for testimony on damages. Testimony taken. Upon hearing the evidence, testimony on damages alone taken, Judgment is entered in favor of Thomas Boyett and Nelda Boyett and against George Creel in the amount of $168,767 compensatory damages plus $100,000 punitive damages plus cost of court.”

On April 26, 2000, a certificate of judgment was issued. On May 25, 2000, Creel, appearing pro se, filed a motion to alter, amend, or vacate the judgment and for findings of fact. On June 6, 2000, the court denied the motion. Creel did not appeal.

On September 13, 2000, the Boyetts filed an amendment to their original complaint, attempting to add as additional parties Pratt Capital, Inc., The People’s Bank & Trust Co., and fictitiously named defendants A, B, C, and D. On that same day, the Boyetts also filed a motion to set aside the transfer of the property by Creel to Pratt Capital, and they asked the court to perfect and enforce a lien on the property and to order its sale. On September 14, 2000, the Boyetts filed a motion for an injunction preventing Pratt Capital and Creel from encumbering or transferring the property. On September 25, 2000, the trial court set the motion for an injunction and the motion to set aside the transfer of property for a hearing on November 7, 2000, at 9:00 a.m. On October 20, 2000, Pratt Capital filed a motion to dismiss, alleging various grounds, including:

“The attempted Amendment of the cause of action originally filed against Defendant, George Creel, is improper in that' such action was concluded by a judgment entered by the Court on August [sic] 25, 2000. There has been no appeal. The attempted Amendment erroneously presumes that the case remains an active viable action which is capable of amendment. In fact, the case had been finally concluded by entry of the judgment on August [sic] 25, 2000, which was some 19 [sic] days prior to the attempt at adding Pratt Capital, Inc., as a party and stating a cause of action against Pratt Capital, Inc.
“The plaintiffs have erroneously attempted to add Pratt Capital, Inc., as a Defendant after the trial of their case and after judgment was rendered and the ‘Amendment to Complaint’ is a nullity, and must be disallowed as to Pratt Capital, Inc.”

(Emphasis original.) In the motion to dismiss Pratt Capital also alleged that Pratt Capital, Inc., was improperly named as a defendant and also as a garnishee, and that the motion to set aside the transfer of property should have been filed in Elmore County, where the real property was located, rather than in Autauga County. On October 31, 2000, the trial court set the motion to dismiss for hearing on November 20, 2000, and on November 7, 2000, the trial court made the following entries on the case action summary sheet:

“11-7-00 Motion for Injunction — argued — by agreement Injunction to issue — Pratt Capital is enjoined from further encumbering, transferring etc. to subject property. SR
“11-7-00 Motion to set aside transfer argued — granted—See Order to follow SR
“11-7-00 Motion to dismiss by Pratt Capital as set 11-20-00 argued this date — denied. SR”

On January 23, 2001, the trial court made the following entry on the case action summary sheet: “Motion to set aside transfer order of 11-7-00 is set aside. No written order following that 11-7-00 entry. Pratt Capital to file answer in 20 days. Case set for 2-20-01 @ 9:00 a.m.” On February 20, 2001, the trial court made the following entry to the case action summary sheet: “Motion to set aside transfer is set for trial on 3-20-01 at 9:00 a.m. Before the Court this date, Plaintiff offers to move cause to Elmore County if Defendant Pratt Capital wants to change venue to Elmore County. Case transferred to Elmore County.... Case set in Elmore 3-28-01 @ 9:00 before this Judge.”

On March 29, 2001, the trial court entered the following order on the motion to set aside the transfer of property:

“This cause coming on before this Court upon the Motion to Set Aside the Transfer of Real Estate as filed by the original Plaintiffs, Thomas and Nelda Boyett as against Pratt Capital, Inc., as filed in the original cause of action in Autauga County, Alabama, and upon taking testimony of this cause in Elmore County, Alabama, on the issue presented in said Motion the Court does hereby find as follows:
“By way of review, the Court does give this history:
“1. This cause was originally filed by the Plaintiffs against George Creel in Autauga County, Circuit Court with service on George Creel on August 27, 1999 for Breach of Agreement (Contract), Fraud and Conversion. Defendant filed Answer through Hon. Stephen Lang-ham.
“2. Plaintiff files Motion for Summary Judgment, the same being granted and date being set for hearing on damages.
“3. Hearing on damages held on April 25, 2000, and judgment is entered in favor of Plaintiffs and against Defendant, George Creel in the sum of $268,767.00.
“4. Motion to Alter filed and denied.
“5. Plaintiff files Motion to Set Aside Transfer and adds Pratt Capital and People’s Bank and Trust.
“6. Plaintiff files Process of Garnishment.
“7. Cause of Action transferred to Elmore County on motion for trial of issue of the setting aside the transfer of property.
“Upon hearing the evidence, Court finds sufficient evidence provided by the Plaintiff and through testimony of the Defendant of a transfer of real estate by George Creel with actual intent to defraud creditors under their definition as cited in Section 8-9A-1 et seq. Code of Alabama 1975, as amended.
“This Court finds that George Creel transferred the title to the real estate located in Elmore Court to the same attorney who represented him in the damages hearing of April 25, 2000.
“Therefore, the transfer of the subject real estate located in Elmore County, Alabama, dated April 21, 2000 and recorded in RLPY 2000 14286, Office, Judge of Probate, Elmore County, Alabama, wherein George Creel is the grantor and Pratt Capital, Inc., was the named grantee, is set aside and held to be null and void as to the creditors of George Creel as of August 25, 2000.
“The Plaintiffs are hereby authorized to proceed through the Court for an Order for Sheriffs Sale and shall stand second only to the priority of The People’s Bank and Trust first mortgage lien.
“The Court additionally taxes costs of this proceeding and attorneys’ fees of $5000.00 against George Creel, the same is granted to the benefit of the Plaintiffs. “ORDERED this the 29^ day of March, 2001.
7S/ Sibley Reynolds
“CIRCUIT JUDGE”

On April 30, 2001, Pratt Capital filed a motion to alter, amend, or vacate the judgment, which the, trial court denied on May 2, 2001. Pratt Capital appealed.

Standard of Review

Justice See, writing for the Court in Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013 (Ala.2002), set out the standard of review:

“This Court must review de novo the propriety of a dismissal for failure to state a claim and must resolve all doubts in favor of the plaintiff:
“ ‘It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979)....
“ “Where a 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).’
“Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).”

888 So.2d at 1017-18.

Discussion

Pratt Capital argues that the trial court committed reversible error by “conducting proceedings on allegations of ‘Amendment to Complaint’ filed after the conclusion of trial and entry of judgment on the original complaint, where Plaintiffs did not move for leave to amend and Court did not grant leave to Amend Complaint, and new Defendant objected to proceedings.” (Pratt Capital’s brief, p. 15, emphasis original.) We agree.

It is undisputed that the trial court issued a certificate of judgment in the Boy-etts’ case against Creel on April 26, 2000. On May 25, 2000, Creel filed a motion to alter, amend, or vacate the judgment and for findings of fact; the trial court denied this motion on June 6, 2000.

Rule 4(a)(1), Ala. R.App. P., provides:

“[I]n all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the. notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure.”

Rule 4(a)(3), Ala. R.App. P., provides:

“The filing of a post-judgment motion pursuant to [Rule 59] of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion.”

Because the motion to alter, amend, or vacate the judgment, filed pursuant to Rule 59; Ala. R. Civ. P., was denied on June 6, 2000, the last day Creel could have possibly filed a notice of appeal in this case was July 18, 2000.

Rule 54(b), Ala. R. Civ. P., states:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form, of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

(Emphasis added.) Clearly, a judgment is not subject to revision after all the claims of all parties have been adjudicated, absent a timely motion filed pursuant to Rules 55, 59, or 60, Ala. R. Civ. P. Although Creel, on May 25, 2000, filed a motion to alter, amend, or vacate the judgment, the court denied that motion on June 6, 2000, and Creel filed no notice of appeal. Consequently, the judgment entered by the trial court in the case became final.

This case is similar to Hammond v. Realty Leasing, Inc., 351 So.2d 893 (Ala.1977). In that case, the trial court dismissed the plaintiffs complaint, and the plaintiff appealed to this Court. After we dismissed his appeal, the plaintiff attempted to amend his original complaint, and the trial court dismissed the petition to amend. On appeal from that denial, this Court stated:

“Amendments under Rule 15, Alabama Rules of Civil Procedure, are to be freely allowed, and this court has repeatedly said that Rule 15 must be liberally construed. E.g., Alabama Farm Bureau Mut. Casualty Ins. Co. v. Guthrie, 338 So.2d 1276 (Ala.Sup.Ct.1976); Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975).
“However, Rule 15 does not allow a party to amend his or her original complaint after an unsuccessful appeal.
“ ‘Where, although given an opportunity to amend, the pleader has stood upon his pleading and appealed from a judgment of dismissal, he will not normally be able to amend either in the appellate court, or in the trial court if the order of dismissal is affirmed, unless the mandate of the appellate court expressly permits such amendment.’ 3 Moore’s Federal Practice, 2d Ed., ¶ 15.11.
“ ‘To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation.’ 6 Wright & Miller, Federal Practice and Procedure, § 1489, p. 445. The decision in Hammond [v. Realty Leasing, Inc., 342 So.2d 915 (Ala.1977),] did not provide for any further amendment of the complaint.”

351 So.2d at 895.

In Wiggins v. State Farm Fire & Casualty Co., 686 So.2d 218 (Ala.1996), the plaintiff obtained a default judgment against Chris Sanders on a complaint charging Sanders with assault and battery. After the default judgment had been entered in that case, the plaintiff attempted to add Sanders’s insurance company as a defendant and force the insurance company to satisfy the default judgment pursuant to §§ 27-23-1 and -2, Ala.Code 1975. This Court held that the plaintiff could not recover against the insurance company in the action against Sanders and that to recover she would have to bring a separate action against the insurance company.

In Nichols v. Ingram Plumbing, 710 So.2d 454, 455 (Ala.Civ.App.1998), the Court of Civil Appeals stated:

“We must first consider whether this court has jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). When the judgment in favor of the [Municipal Workers’ Compensation Fund, Inc.] was entered on September 7, 1995, the trial court completed its adjudication of all matters in controversy between the litigants. Yet, it appears that the case remained on the trial court’s docket. A judgment that conclusively determines all of the issues before the court and ascertains and declares the rights of the parties involved is a final judgment. Crane v. American Cast Iron Pipe Co., 682 So.2d 1389, 1390 (Ala.Civ.App.1996). Although the trial court subsequently pm-ported to make ‘final’ the Fund’s default judgment, pm-ported to grant Waffle House’s ‘motion to dismiss,’ and purported to enter a new summary judgment in favor of Houston Plumbing and Ingram Plumbing, it had no jurisdiction to do any of those things. ‘[A] court cannot, by its subsequent action, divest a decree of its character of finality. A final decree is not rendered interlocutory by the retention of the case on the docket, nor by the subsequent rendition of another decree therein.’ Mingledorff v. Falkville Downtown Redevelopment Authority, 641 So.2d 830, 832 (Ala.Civ.App.1994), quoting 30A C.J.S. Equity, § 582, p. 649 (1965).”

454 So.2d at 455-56. See also Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988)(rule on amendment of pleadings did not allow insured to amend complaint on remand after the Supreme Court had reversed the judgment against the insurer on the bad-faith count, even though the remand was without directions, where the mandate of the Supreme Court did not permit such an amendment and amounted to a final adjudication; overruling Havard v. Palmer & Baker Eng’rs, Inc., 293 Ala. 301, 302 So.2d 228 (1974)).

In this case, the Boyetts, suing individually and d/b/a Prattville Roller Rink, have attempted to amend their original complaint to add defendants after the judgment became final. All their claims against Creel had been adjudicated, and when that judgment was entered Creel was the only defendant. After the plaintiffs filed their amended complaint, Pratt Capital filed a motion to dismiss the complaint against it on the ground that “the amendment of the cause of action originally filed against George Creel, is improper in that such action was concluded by a judgment entered by the court on August [sic] 25, 2000,” and that “[t]here has been no appeal.” Pratt Capital further averred that “[t]he attempted Amendment erroneously presumes that the case remains an active viable action which is capable of amendment.” The trial court denied Pratt Capital’s motion to dismiss. We believe the trial court erred in allowing the plaintiffs to amend the original complaint to add additional defendants after a final judgment had been entered in the case. If the Boyetts want to set aside Creel’s transfer of the real property, as may be permitted by law, they must file a separate proceeding.

The judgment of the trial court entered on April 25, 2000, in favor of the Boyetts on the original complaint was a final judgment, and no appeal was taken from that judgment. Consequently we reverse the judgment entered on plaintiffs’ amended complaint, and we remand the cause to the trial court for proceedings consistent with this opinion.

This opinion was prepared by Retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, and WOODALL, JJ., concur.

      . The case was later transferred to the El-more Circuit Court.

      . The Boyetts had filed a motion to shorten time on January 19, 2000, asking that the court shorten the time to respond to interrogatories from 30 days to 5 days. On January 21, 2000, the court granted the Boyetts’ motion. The record before us does not contain a copy of the interrogatories. See Rule 10, Ala. R.App. P.

      .The order stated: "[T]he Defendant is required to respond to Plaintiffs’ Request for Admissions within fifteen (15) days from the date of this Order or unless the original time to respond of thirty (30) days comes first, whichever is shorter, with the applicable Alabama Rules of Civil Procedure to apply.” Because the request for admissions was filed on March 1, 2000, the 15-day period was the shorter period, and Creel was due to respond to the request for admissions on or before March 22, 2000.

      . An entry on the case action summary sheet shows this fact.

      . We note that Creel had transferred his interest in the property to Pratt Capital on April 22, 2000.


author: JOHNSTONE, Justice.

text:
    Ex parte Moneek M. ACKLES. (In re Ex parte Moneek M. Ackles).
    1001294.
    Supreme Court of Alabama.
    June 28, 2002.

      Moneek M. Ackles, pro se.
    Bill Pryor, atty. gen., and Kristi L. Dea-son, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

Pro se, Moneek M. Ackles, an inmate at the Donaldson Correctional Facility, petitions this Court for a writ of mandamus directing the Talladega County Circuit Court to vacate its dismissal of his petition for a writ of mandamus filed in the Tal-ladega County Circuit Court and to compel the Clerk of the Talladega County Circuit Court to make certain allegedly public writings available for inspection and copying. The petition for a writ of mandamus filed by Ackles in the Talladega County Circuit Court was not verified by affidavit.

“All applications for mandamus, prohibition, certiorari, or other remedial writ of a supervisory nature shall be commenced by a petition, verified by affidavit, in which the facts shall be stated as briefly and succinctly as the case will admit of .... ” § 6-6-640(a), Ala.Code 1975 (emphasis added). The affidavit can be made by the petitioner, or “the affidavit can be made by an agent or attorney who is conversant with the facts.” Birmingham News v. State ex rel. Dunston, 207 Ala. 440, 441, 93 So. 25, 26 (1921).

The petition for a writ of mandamus filed in this Court is denied on the ground that the petition for a writ of mandamus filed in the Talladega County Circuit Court was not verified by affidavit as required by § 6-6-640(a), Ala.Code 1975. This disposition pretermits all other issues.

WRIT DENIED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

STUART, J., concurs in the result.

      . A petition for a writ of mandamus filed with an appellate court is not required to be verified. Ex parte Johnson, 485 So.2d 1098, 1106 (Ala.1986).


author: JOHNSTONE, Justice. HOUSTON, Justice

text:
    Ex parte WAL-MART STORES, INC. (In re Joan Vaughan v. Wal-Mart Stores, Inc., et al.)
    1001064.
    Supreme Court of Alabama.
    June 28, 2002.

      Craig W. Goolsby, Caroline T. Pryor, and J. Alex Wyatt of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for petitioner.
    Wyman 0. Gilmore, Jr., and Frederick P. Gilmore of Gilmore Law Office, Grove Hill; and Gregory S. Griggors of Lloyd, Dinning, Boggs & Dinning, Dempolis, “of counsel,” for respondent.
   JOHNSTONE, Justice.

WRIT DENIED.

MOORE, C.J., and SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

I concur to deny the writ, with the understanding that Wal-Mart must produce only evidence of customer falls caused by shipping pallets in the aisles of Wal-Mart stores in Alabama for five years before December 15, 1998. Ex parte Wal-Mart, Inc., 809 So.2d 818 (Ala.2001).


author: BROWN, Justice. JOHNSTONE, Justice

text:
    Ex parte MAPLE CHASE COMPANY. (In re Keith Dickerson v. Alabama Home Mortgage Company, Inc., and Maple Chase Company).
    1001794.
    Supreme Court of Alabama.
    June 28, 2002.

      James E. Davis, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for petitioner.
    Glenda G. Cochran of Cochran & Associates, Birmingham, for respondent.
   BROWN, Justice.

Maple Chase Company (“MCC”) petitions this Court for a writ of mandamus directing the trial court to vacate its order requiring MCC to reimburse Keith Dickerson for the costs his counsel incurred in traveling to MCC’s principal place of business in Downersgrove, Illinois, and MCC’s production facility in Chihuahua, Mexico, to inspect and copy documents Dickerson requested from MCC, as well as costs incurred for translating the documents located at MCC’s Mexico facility from Spanish to English. We grant the petition and issue the writ.

Facts and Procedural History

Dickerson sued MCC, a manufacturer of smoke detectors, for injuries he sustained when his apartment caught fire. Dickerson asserted products-liability and breach-of-warranty claims against MCC, who manufactured the smoke detector located in Dickerson’s apartment.

On November 1, 2000, Dickerson served his “First Consolidated Discovery Requests,” which consisted of 65 interrogatories and 39 requests for production. On December 1, 2000, MCC filed objections to the discovery requests, generally contending that the requests sought information not discoverable under Rule 26, Ala. R. Civ. P., and that the requests were overly broad and unduly burdensome. Thereafter, Dickerson filed a motion to compel. On December 12, 2000, Judge Thomas Woodall granted the motion and ordered MCC to supplement its responses to Dickerson’s discovery within 30 days. On January 12, 2001, MCC served its supplemental responses on Dickerson. Dickerson reviewed the responses and, apparently, still believing the responses to be insufficient, Dickerson filed another motion to compel and a motion for sanctions. Judge Woodall had become a member of this Court in the interim, and Judge Wayne Thorn heard Dickerson’s motion. On March 15, 2001, Judge Thorn entered the following order:

“The Defendant, Maple Chase, is hereby ordered to produce all documents relating to the model G smoke-detector. The said Defendant is also ordered to produce all documents relating to the photo-electric and ‘combo’ smoke-detectors from January 1,1988 to the date of the fire which is the basis of this lawsuit.
“The said Defendant shall produce documents on all smoke-detectors, photo-electric and ‘combo,’ where there are judgments in any court or any settlement of cases from January 1, 1988, to the date of the fire made the basis of this action. The said Defendant shall produce documents reflecting all judgments in any court or settlement of any eases involving model G or ‘ionization’ type smoke-detectors.
“The said Defendant shall pay the reasonable expenses incurred by the Plaintiff in traveling to and from Dow-nersgrove, Illinois and Chihuahua, Mexico for the purposes of examining all documents concerning the smoke-detectors. The Plaintiff shall submit to this court, within seven days from the date of this order, a request to the appropriate court in Mexico to appoint an impartial translator. The said Defendant shall pay the reasonable costs of employing a translator for use by the Plaintiff. The Plaintiff shall travel to these locations sometime within sixty days from the date of this order.”

After the case had been transferred to Judge Tom King, MCC filed a motion for protective order, or to alter, amend, or vacate the March 15, 2001, discovery order. In its motion, MCC argued that no basis existed on which the trial court could order MCC to pay Dickerson’s travel expenses and the costs of a translator. Following a hearing, Judge King denied MCC’s motion on May 29, 2001. Thereafter, MCC petitioned this Court for a writ of mandamus, and we ordered an answer and briefs.

Analysis

“Rule 26, Ala. R. Civ. P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. ‘Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.’ Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) (citations omitted); see also Ex parte Hicks, 727 So.2d 23, 33 (Ala.1998) (Maddox, J., dissenting).
“Petitioning for the writ of mandamus is the proper method for determining whether a trial judge has abused his discretion in limiting discovery. Ex parte Allstate Ins. Co., 401 So.2d 749, 751 (Ala.1981). The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So.2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court ‘determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.’ Ex parte Horton, 711 So.2d at 983. Moreover, ‘ “[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,” and “[t]he writ will not issue where the right in question is doubtful.” ’ Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981)).”

Ex parte Henry, 770 So.2d 76, 79-80 (Ala.2000).

In its brief, MCC acknowledges that the trial court has broad discretion in ruling on discovery matters and in imposing sanctions on a party that fails to comply with a discovery order. However, MCC contends that the trial court abused its discretion by requiring MCC to pay Dickerson’s travel expenses and the costs of translating docu-merits from Spanish to English without first concluding that MCC had engaged in any sanctionable conduct. Moreover, MCC argues that the trial court could not have concluded that MCC had engaged in sanctionable conduct because before the March 15, 2001, hearing, the trial court had not ruled on MCC’s objections to Dickerson’s discovery requests. Therefore, MCC maintains, it was under no duty to respond to the discovery requests before the trial court’s March 15, 2001, determination as to which documents MCC was required to produce.

Our research has not revealed any Alabama case directly on point with the issue presented in MCC’s petition. However, federal courts have previously addressed similar issues. “Because the Alabama and federal rules are, virtually identical, a presumption arises that cases construing the federal rules are authority for construction of the Alabama rules.” Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 n. 1 (Ala.1989)(citing Weatherly v. Baptist Med. Ctr., 392 So.2d 832 (Ala.1981); Smith v. Wilcox County Bd. of Educ., 365 So.2d 659 (Ala.1978); and Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So.2d 228 (Ala.1978)).

The federal courts have stated that it is a well-accepted principle that each party bears the ordinary burden of financing his own lawsuit. In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 507 (1st Cir.1982); see also East Boston Ecumenical Cmty. Council, Inc. v. Mastrorillo, 124 F.R.D. 14 (D.Mass.1989); In re Korean Air Lines Disaster of Sept. 1, 1983, 103 F.R.D. 357 (D.D.C.1984); Cook v. Volkswagen of America, Inc., 101 F.R.D. 92 (S.D.W.Va.1984). “In keeping with this rule [that each party must finance his own lawsuit], each party pays its own pretrial discovery costs.” In re Korean Air Lines Disaster, 103 F.R.D. at 357. “While the prevailing party is permitted in the court’s discretion to recover certain enumerated costs necessary to preparation and presentation of his case, this allocation only occurs after the suit is over.” In re Puerto Rico Elec. Power Auth., 687 F.2d at 507 (citing Rule 54(d), Fed.R.Civ.P.).

Dickerson urges us to follow Stapleton v. Kawasaki Heavy Industries, Ltd., 69 F.R.D. 489 (N.D.Ga.1975), in which the United States District Court for the Northern District of Georgia ruled that the Japanese defendants must reimburse the plaintiff for the expenditure of $420 she incurred in having documents the defendant was required to produce translated from Japanese to English. In its one-page opinion, the Stapleton court faded to cite a single case, and we decline to follow the rationale of that quarter-of-a-century-old case. Rather, we believe the better-reasoned view is that a party is required to bear its own pretrial discovery costs and any special attendant costs related to its discovery requests. See In re Puerto Rico Elec. Power Auth., 687 F.2d at 508. We are persuaded that the federal courts are correct in holding that a party cannot impose on the producing party the cost of translating documents from a foreign language. See In re Puerto Rico Elec. Power Auth., 687 F.2d at 507; see also East Boston Ecumenical Cmty. Council, Inc., supra; In re Korean Air Lines Disaster, supra; and Cook v. Volkswagen of America, Inc., supra.

Relying on these authorities, we hold that the trial court abused its discretion when it ordered MCC to reimburse Dickerson for the costs associated with translating the documents produced by MCC. Additionally, we find that the trial court exceeded its authority by requiring MCC to reimburse Dickerson’s travel expenses to Illinois and to Mexico to examine and copy documents. See, generally, In re Puerto Rico Elec. Power Auth., 687 F.2d at 507. If Dickerson prevails in this action, the trial court may, in its discretion, award Dickerson reimbursement of his costs of translating documents and his travel expenses; however, we find that the trial court abused its discretion in ordering the reimbursement of those costs at this time.

Because MCC has demonstrated a clear legal right to the relief requested, we grant the petition and issue the writ.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, HARWOOD, and STUART, JJ„ concur.

MOORE, C.J., and JOHNSTONE, J„ dissent.

WOODALL, J., recuses himself.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The petitioner, MCC, has not established that the March 15, 2001 discovery order is not legitimately based on a finding of sanctionable conduct by MCC.

MCC’s December 1, 2000 response to the plaintiffs discovery requests consisted solely and entirely of objections, even though the information sought by the requests was largely patently discoverable. MCC initially supplied not one shred of the information sought.

The scope of Judge Woodall’s December 12, 2000 order granting the plaintiffs first motion to compel is in dispute between the parties. Judge Woodall heard the motion in open court, issued his discovery order from the bench, and memorialized it with only a cryptic writing.

On February 14, 2001 the plaintiff filed his second motion to compel, which sought sanctions. At issue before Judge Thorn were both the sufficiency of MCC’s supplemental responses and the propriety of sanctions against MCC. While Judge Thorn was hearing the plaintiffs second motion to compel, Judge Thorn conferred with Judge Woodall, with the parties’ consent, to learn the scope of Judge Woodall’s December 12, 2000 discovery order.

MCC has not supplied us with any record of the conference between Judge Thorn and Judge Woodall to enable us to know what Judge Thorn learned. Judge Thorn’s March 15, 2001 discovery order, at issue before us now, is the product of his knowledge of the plaintiffs discovery requests, MCC’s objections and other responses, the plaintiffs motions to compel, the parties’ arguments in open court (also not supplied to us by MCC), and Judge Thorn’s conference with Judge Woodall.

In the absence of specific findings of fact, appellate courts will assume that the trial court found the facts necessary to support its judgment, unless such findings would be clearly erroneous. Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 268 (Ala.1992). The calculated nonresponsiveness of MCC’s discovery responses is not inconsistent with findings of sanctionable conduct by MCC; we are unable to hold that such findings would be clearly erroneous, because MCC has failed to supply us with the rest of the story — the oral arguments before Judge Thorn and Judge Thorn’s conference with Judge Woodall.

Therefore MCC has failed to carry its burden to establish “(1) a clear legal right in the petitioner to the order sought [and] (2) an imperative duty upon the respondent [trial judge] to perform,” as required, in pertinent part, for the issuance of a writ of mandamus. Ex parte Henry, 770 So.2d 76, 79-80 (Ala.2000). Accordingly, we should deny the writ.

      . Although Rule 33(a), Ala. R. Civ. P., provides that "[w]hen the number of interrogatories exceeds forty (40) without leave of court, the party upon whom the interrogatories have been served need only answer or object to the first forty (40) interrogatories,” Dickerson asserts that the trial court granted him permission to file more than 40 interrogatories.


author: LYONS, Justice.

text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY and Perry Hartley v. Dean DAUGHERTY.
    1010751.
    Supreme Court of Alabama.
    July 12, 2002.

      D. Brent Baker and Kathryn T. Hamilton of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellants.
    Joseph C. McCorquodale III of McCor-quodale & McCorquodale, Jackson; and Wyman O. Gilmore, Jr., Grove Hill, for appellee.
   LYONS, Justice.

Dean Daugherty sued Liberty National Life Insurance Company (“Liberty National”) and Perry Hartley, alleging defamation, intentional infliction of emotional distress, and interference with business relationships. Daugherty voluntary dismissed his claims of intentional infliction of emotional distress and interference with business relationships. The jury returned a verdict in favor of Daugherty on his defamation claim, awarding him $300,000 in compensatory damages, and the trial court entered a judgment on that verdict. Liberty National and Hartley appeal the dénial of their motions for a judgment as a matter of law, motions for a remittitur of the compensatory-damages award, and motions for a new trial. We affirm the judgment of the trial court.

I. Facts

Dean Daugherty was employed by Liberty National as an insurance agent from September 7, 1981, until November 1, 1993. Daugherty serviced the insurance needs of the community of Citronelle from 1986 until he left Liberty National in 1993. Daugherty was one of Liberty National’s top insurance agents, and he formed close relationships with his customers in Citro-nelle. During his employment with Liberty National, Daugherty signed a noncom-petition agreement, pursuant to which he agreed that if his employment with Liberty National terminated, he would not sell life insurance to Liberty National customers for a full year after the termination of his employment.

On November 1, 1993, Daugherty resigned from Liberty National and started the Daugherty-Bailey Insurance Co., Inc. Before Daugherty’s resignation, Perry Hartley, then a Liberty National district manager, had evaluated Daugherty’s job performance. Hartley indicated on the evaluation form that the reason for Daugherty’s departure from Liberty National was that Daugherty had purchased an independent insurance agency. Hartley also indicated on the evaluation form that Daugherty had handled Liberty National accounts satisfactorily, that Daugherty had good sales ability, and that Hartley would reemploy Daugherty if he decided to reapply for employment with Liberty National.

Liberty National did not immediately hire an insurance agent to replace Daugherty, and after his departure, several of Daugherty’s former customers began to contact him regarding the status of their life insurance policies. Daugherty told his former customers to contact Liberty National, and he provided them with a customer-service telephone number. When Liberty National failed to satisfy these customers, they again contacted Daugherty and requested that he provide them with life insurance. Daugherty sold several life insurance policies, issued by an insurance company other than Liberty National, to his former Liberty National customers. Those customers then either canceled their Liberty National life insurance policies or allowed those policies to lapse. An agent who replaces an existing insurance policy with another company with his or her company’s policy is required by state insurance regulations to file a replacement form with the insurance company whose policy is being replaced so that that company may contact the customer to determine if the customer intended to lose his or her former insurance.

When the premiums on several Liberty National insurance policies held by customers in Citronelle became past due, Liberty National instructed its insurance agents to contact the holders of those policies in order to preserve its business. Liberty National had a company policy requiring its insurance agents to collect affidavits from former customers indicating whether a former Liberty National insurance agent had replaced their Liberty National insurance policy with a policy issued by another company. If an insurance policy had been replaced by a former Liberty National insurance agent within the period prohibited by the noncompetition agreement, Liberty National would sue the former insurance agent in accordance with that noncompetition agreement.

Perry Hartley contacted several of the Citronelle policyholders whose policies had lapsed. Hartley learned that many of those policyholders had purchased new life insurance policies through Daugherty. One such policyholder was Ouida Land-rum. Hartley visited Landrum sometime in 1994 or 1995. Lois Ott, Ouida Land-rum’s niece, was visiting her aunt on the occasion of Hartley’s visit. Ott was also a former Liberty National life insurance policyholder who had purchased a new life insurance policy through Daugherty.

According to Ott, Hartley told Landrum that Daugherty was one of the “sorriest” insurance agents Liberty National had ever had; that Daugherty was selling insurance policies he knew were no good; that Daugherty was “pocketing” the money from the sale of those policies; that Daugherty had sold one person seven cancer policies, knowing the policies were not any good; and that Daugherty had been fired from Liberty National because he was stealing the company’s money. Hart-ley also asked Landrum to sign an affidavit stating that Daugherty had replaced her Liberty National life insurance policy with a policy issued by another company.

After Hartley left Landrum’s home, Ott telephoned Daugherty and told him what Hartley had said. Ott did not tell anyone other than Daugherty about the statements; however, she heard other people in the Citronelle community talking about similar remarks Hartley had made about Daugherty. Ott testified that the statements she heard Hartley make about Daugherty did not prevent her from doing business with Daugherty because she did not believe the statements were true. Several other former Liberty National life insurance policyholders telephoned Daugherty and informed him that Hartley had made similar comments to them and that Hartley had encouraged them to sign an affidavit stating that Daugherty had replaced their Liberty National life insurance policies.

On March 18,1996, Daugherty sued Liberty National and Perry Hartley (hereinafter referred to collectively as “the Liberty National defendants”), alleging: 1) that Hartley, while acting within the line and scope of his employment with Liberty National, published false and defamatory statements about Daugherty; 2) that the Liberty National defendants intentionally or recklessly caused him to suffer emotional distress by making false and defamatory statements about him to his customers; and 3) that the Liberty National defendants intentionally interfered with the business relationships between Daugherty and his customers. Count one of Daugherty’s complaint alleged that Hartley told Daugherty’s customers that:

“Dean Daugherty sold cancer policies to people that he knew had cancer. Dean Daugherty knew these policies were no good and Dean Daugherty was pocketing the premium from the sale of these policies. Dean Daugherty sold one old person seven different policies that were no good. Dean Daugherty was the sorriest agent that Liberty National had and Dean Daugherty was fired from Liberty National because of this.”

Count two of Daugherty’s complaint alleged that Hartley told Daugherty’s customers that: “Dean Daugherty is engaging in illegal insurance practices.”

On or around July 18, 2001, Liberty National moved for a summary judgment; on July 30, 2001, Perry Hartley moved for a summary judgment. The trial court denied the Liberty National defendants’ motions for a summary judgment as to counts one, two, and four of Daugherty’s complaint. Daugherty withdrew count three of his complaint, which alleged that the Liberty National defendants had intentionally or recklessly caused him to suffer emotional distress by making false and defamatory statements about him.

On August 3, 2001, Daugherty filed a motion for leave to amend his complaint to add additional facts, to allege that the defamatory statements constituted slander per se, and to add a claim that Daugherty had suffered personal humiliation and lost income as a result of the defamatory statements. On August 10, 2001, the trial court denied that motion. At trial Daugherty agreed to withdraw his slander claim with regard to the statement alleged in count two of his complaint, i.e., that he had engaged in illegal insurance practices.

At the close of Daugherty’s case, the Liberty National defendants moved for judgments as a matter of law, arguing that Daugherty had not specifically pleaded slander per se, that only the statement regarding Daugherty “pocketing the premium from the sale of [insurance] policies” could constitute slander per se and that the other statements alleged in count one could have supported only a finding of slander per quod, which would have required Daugherty to plead and prove special damages. At the close of their case, the Liberty National defendants renewed their motions for a judgment as a matter of law. The trial court denied those motions. The case went to the jury on only the first count of Daugherty’s complaint. The jury returned a verdict in favor of Daugherty and awarded him $300,000 in compensatory damages.

On September 18, 2001, Liberty National renewed its motion for a judgment as a matter of law and filed a motion for a remittitur of the compensatory-damages award and a motion for a new trial. On September 14, 2001, Hartley renewed his motion for judgment as a matter of law and filed a motion for a remittitur of the compensatory-damages award and a motion for a new trial. On December 13, 2001, the trial court denied the Liberty National defendants’ motions for a judgment as a matter of law, motions for a remittitur of the compensatory-damages award, and motions for a new trial, stating that the Liberty National defendants’ actions constituted slander per se. The court stated that the Liberty National defendants had accused Daugherty of taking money that did not belong to him, i.e., stealing, and that, therefore, damages could be presumed. The court also found that there was sufficient evidence to indicate that Daugherty had experienced mental anguish over an extended period,, supporting the jury’s award of compensatory damages.

II. Standard of Review

“ ‘A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law.’ ” Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala.2000), quoting Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala.1997). In reviewing the denial of a motion for a judgment as a matter of law, this Court is required to view the evidence in a light most favorable to the nonmovant. Kmart Corp. v. Kyles, 723 So.2d 572, 573 (Ala.1998). Therefore, where the evidence in the record is disputed, we present it in a light most favorable to Daugherty.

III. Did the allegedly defamatory statements constitute slander per quod or slander per se?

The Liberty National defendants argue that the trial court erred when it denied their motions for a judgment as a matter of law because, according to the Liberty National defendants, Daugherty failed to state a claim that alleged slander per quod or slander per se. The Liberty National defendants contend that the trial court applied the wrong test to determine whether Hartley’s statements constituted slander per se. Relying upon Ledbetter v. United Insurance Co., 845 F.Supp. 844 (M.D.Ala.1994), the trial court held that “slander per se is committed when a ‘defendant ascribes conduct to the plaintiff which is incompatible with the proper conduct of his lawful business, trade, profession. ..See also Jenelle Mims Marsh and Charles W. Gamble, Alabama Law of Damages § 36-27 (4th ed.1999). Applying the Ledbetter test, the trial court concluded that the Liberty National defendants had made statements accusing Daugherty of taking money that did not belong to him, i.e., stealing, and that those statements constituted slander per se. The Liberty National defendants argue that the “indictable-offense test” is the proper test in Alabama to determine whether a communication is slanderous per se. However, it is unnecessary to reach the question whether the basis of the trial court’s ruling is correct because this Court may affirm a trial court’s judgment if it is supported on any valid legal ground. Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160, 1165 (Ala.1998).

Ceravolo v. Brown, 364 So.2d 1155 (Ala.1978), decided significantly after the authorities cited in Gamble’s Alabama Law of Damages § 36-27 n. 4, restated the test for determining whether an allegedly defamatory statement constitutes slander per se:

“ ‘The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod....
“ ‘There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation.... This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.
“ ‘In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude....
“ ‘This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemean- or. In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action.’ ”

364 So.2d at 1156-57, quoting Marion v. Davis, 217 Ala. 16, 18, 114 So. 357, 358-59 (1927) (emphasis added).

However, “[djamage is implied by law when spoken words are found to be slander per se.” Anderton v. Gentry, 577 So.2d 1261, 1263 (Ala.1991), see also Sunshine Invs., Inc. v. Brooks, 642 So.2d 408, 410 (Ala.1994). Words found to be slander per se “relieve the plaintiff of the requirement of proving ‘actual harm to reputation or any other damage’ in order to recover nominal or compensatory damages.” Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1092 (Ala.1988), quoting W. Prosser and W. Keeton, The Law of Torts § 112, at 788 (5th ed.1984).

When determining whether a statement is actionable as slander per se, a court must give the language used “that meaning that would be ascribed to the language by a reader or listener of ‘average or ordinary intelligence, or by a common mind.’ ” Camp v. Yeager, 601 So.2d 924, 927 (Ala.1992), quoting Loveless v. Graddick, 295 Ala. 142, 148, 325 So.2d 137, 142 (1975). Moreover, this Court has stated: “ ‘When words from their general import appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.’ ” Johnston v. Turner, 159 Ala. 356, 358, 47 So. 570, 571 (1908), quoting Wofford v. Meeks, 129 Ala. 349, 357, 30 So. 625, 627 (1901). Stated differently, the courts will not apply a forced construction in order to render the statement nondefa-matory and thereby to relieve the defendant of liability. Marion v. Davis, 217 Ala. at 19, 114 So. at 359. Finally, the alleged slanderous statement must be construed in connection with the other parts of the conversation, in order to determine the context in which the statement was made. Marion, supra.

Daugherty contends that the statements that he alleges in count one of his complaint were made by the Liberty National defendants are slanderous per se because, he argues, the statements impute to him the offense of larceny. If we assume the statements alleged in count one are true, Hartley told one of Daugherty’s customers that Daugherty had sold cancer policies to people he knew had cancer; that Daugherty knew that those policies were worthless; and that he was pocketing the premiums from the sale of those policies. At the time Hartley made the allegedly defamatory statements, Alabama’s Criminal Code provided a criminal penalty for the misappropriation of funds collected by an insurance agent. Section 27-8-28(b), Ala.Code 1975, provided:

“(b) Any agent or broker who, not being lawfully entitled thereto, diverts or appropriates such funds, or any portion thereof, to his own use shall, upon conviction, be guilty of larceny by embezzlement and shall be punished as provided by law as if he had stolen such funds.”

(Emphasis added.) This Court has firmly held that larceny falls within the definition of an indictable criminal offense involving infamy or moral turpitude and that, therefore, words that impute the offense of larceny are slanderous per se. Sunshine Investments, 642 So.2d at 410; Nelson, 534 So.2d at 1091-92; Phillips v. Bradshaw, 167 Ala. 199, 52 So. 662 (1910).

An insurance agent who knowingly sells worthless insurance policies and appropriates the premiums paid on those policies to his own use is also guilty of the crime of theft by deception. § 13A-8-2(2), Ala. Code 1975. The prior offenses of larceny and embezzlement and the offense of theft by deception are unified into the single offense of theft of property. See Ala.Code 1975, §§ 13A-8-2 through 13A-8-5 Commentary.

“A person commits the crime of theft of property if he:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with the intent to deprive the owner of his property; or
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”

§ 13A-8-2, Ala.Code 1975. The Liberty National defendants argue that Hartley’s statements did not impute to Daugherty the crime of theft. According to the Liberty National defendants, the verb “pocketing” has several harmless meanings, any or all of which could have been implied by Hartley’s statements. The Liberty National defendants argue that the word “pocket” implied at best that Daugherty had done something dishonest, but that the use of that word did not clearly impute to Daugherty the offense of theft.

As support for their position that Hartley did not intend to imply that Daugherty had committed theft, the Liberty National defendants cite Blevins v. W.F. Barnes Corp., 768 So.2d 386, 391 (Ala.Civ.App.1999), in which the Court of Civil Appeals held that a statement accusing the plaintiff of “extort[ing] money” did not amount to slander per se. The plaintiff in Blevins sued the defendant after the defendant told a newspaper reporter that the plaintiff “tried to extort money out of '[the defendant] because [the defendant] refused to pay [the plaintiffs] demands.” After considering the various definitions of the word “extort” and the context in which the word “extort” was used in the allegedly defamatory statement, the Court of Civil Appeals concluded that the word “extort” was merely rhetorical hyperbole, and that the defendant’s statement did not constitute slander per se. 768 So.2d at 391.

The Liberty National defendants contend in their brief to this Court that The American Heritage Dictionary (4th ed.2000) contains several meanings of the word “pocketing” that are harmless. Just as the Court of Civil Appeals held in Blevins — that the word “extort” has several meanings that do not suggest the crime of extortion — the Liberty National defendants argue that the word “pocketing” has several meanings that do not suggest the offense of theft. Blevins, however, was a decision by a lower appellate court; although under appropriate circumstances such a decision may be persuasive authority, it is not binding. Moreover, based upon the context in which the word “extort” was used, the Court of Civil Appeals could have reasonably concluded that the word “extort” was “rhetorical hyperbole” rather than an accusation that the plaintiff had committed an indictable offense.

According to the Liberty National defendants, The American Heritage Dictionary defines the verb form of the word “pocket” as follows:

“1. To place in or as if in a pocket. 2. To take possession of for oneself, especially dishonestly: pocketed the receipts from the charity dance. 3.a. To accept or tolerate (an insult, for example), b. To conceal or suppress: I pocketed my pride and asked for a raise.”

Of these definitions of the word “pocket,” the definition “[t]o take possession of for oneself, especially dishonestly” more closely describes the action that Hartley imputed to Daugherty. Several other dictionaries contain similar definitions of the word “pocket.” Among the verb forms of the definition of “pocket” in The Random House Dictionary of the English Language (2d ed.1987) is “to take possession of as one’s own, often dishonestly: to pocket public funds.” The Oxford English Reference Dictionary (2d ed.1996) includes in its definitions of the verb form of the word “pocket” “appropriate, esp. dishonestly.” The usage of the word “pocket” shown in The American Heritage Dictionary— “pocketed the receipts from the charity dance ” — The Random House Dictionary of the English Language — “to pocket public funds ” — indicating the context in which those definitions apply, implies that one “pocketing” has taken something that does not belong to him or her, i.e., that he or she has committed theft. Indeed, according to Merriam-Webster’s Collegiate Die- tionary (10th ed.1999), “pocket” may also mean “to appropriate to one’s own use: steal.”

Hartley’s statements did not suggest that Daugherty had “pocketed” the commission from his insurance sales — income to which Daugherty may have been entitled. The commonly understood meaning of Hartley’s statement was that Daugherty had sold worthless goods in a transaction that did not entitle him to keep the proceeds of the sale but that obligated him to pass them on to Liberty National Insurance Company in order for the purchaser to receive any benefit. We decline Liberty National’s invitation “ ‘to be industrious in putting a construction upon [the words used in Hartley’s statement] different from what they bear in the common acceptation and meaning of them.’ ” Johnston, 159 Ala. at 358, 47 So. at 571, quoting Wofford, 129 Ala. at 357, 30 So. at 627. Thus, we conclude that Hartley’s statements implied that Daugherty had committed the crime of theft. Having imputed to Daugherty the offense of theft, Hartley’s statements were slander per se, and relieved Daugherty of the requirement of proving “actual harm to reputation or any other damages.” See Nelson, 534 So.2d at 1092.

IV. Did Daugherty’s testimony that he had an “excellent” refutation rebut the presumption of injury to his reputation?

The Liberty National defendants argue that even if Hartley’s statements imputed to Daugherty “an indictable criminal offense involving infamy or moral turpitude,” Daugherty has nevertheless failed to state a cause of action for slander per se because, they say, he presented no evidence of damage to his reputation. At trial Daugherty testified that he knew of no one who had canceled or allowed to lapse a life insurance policy he had sold them, based on Hartley’s statements. When asked about his reputation in the Citronelle community, Daugherty testified: “I think it’s a real good reputation. I think it’s very good. Excellent.” Sybil Daugherty, Daugherty’s wife, also testified regarding his reputation in the community. When asked what Daugherty’s reputation was in the community, she answered: “Excellent. Everybody thinks the world of him.” The Liberty National defendants argue that if, for purposes of slander per se, damage to the victim’s reputation is presumed, the presumption in this case was rebutted by Daugherty’s testimony that his reputation was “excellent.”

The general rule is that when a defamatory statement is slanderous per se, the law infers injury to reputation and the plaintiff is relieved of the requirement of proving actual harm to reputation or any other damage. Nelson, 534 So.2d at 1092; see also W. Prosser and W. Keeton, The Law of Torts § 112, at 788 (5th ed.1984). However, this Court has not heretofore addressed whether the presumption of injury to reputation may be rebutted by the plaintiffs testimony that the alleged defamatory statements did not harm his or her reputation.

In Tidmore v. Mills, 33 Ala.App. 243, 256, 32 So.2d 769, 779-80 (1947), a defendant sought to defeat the presumption of injury to character from a publication that was defamatory per se by attempting to prove “that the reputation of the plaintiff below was good in the community in which he lived and that this estimate extended up to the time of the trial in the lower court.” The Court of Appeals observed that “this offer [of proof] was made on the theory and for the purpose of showing that the plaintiff had not, in fact, been damaged in reputation by the publication or at least it was competent in mitigation of damages.” 33 Ala.App. at 256, 32 So.2d at 779. After noting the general rule that the law presumes damage to reputation as a natural and probable consequence of a statement that is defamatory per se and noting further that evidence of the character of the plaintiff in a libel action was admissible at the plaintiffs behest to show malice, the court rejected the defendant’s evidence. The Tidmore court concluded:

“Our courts have considered the propriety of the introduction of the general character of the plaintiff in libel actions from a very different approach and purpose from those attempted in the instant case.
“A review of the authorities will unquestionably show that the general, character evidence of the plaintiff in libel cases is justified and approved for purposes and reasons in no way related or concomitant to those for which the evidence in the case at bar was tendered.
“We entertain the view that it would be anomalous conclusion for us to sanction the introduction of the evidence under review. To do so would have the effect of destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation in the publication of a libelous statement.”

33 Ala.App. at 256, 32 So.2d at 780. We agree with the Court of Appeals and are likewise disinclined to permit evidence that would have the effect of “destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation.” 33 Ala.App. at 256, 32 So.2d at 780.

Moreover, Daugherty’s testimony that his reputation was “excellent” was elicited in the course of a trial in which the Liberty National defendants presented evidence of “bad character,” including evidence indicating that Daugherty had solicited former Liberty National customers in violation of his noncompetition agreement, that Daugherty had willfully failed to inform Liberty National that he had replaced Liberty National life insurance policies with policies from other companies, and that Daugherty had violated state insurance regulations. Thus, Daugherty’s testimony of his “excellent” reputation could be interpreted as a rebuttal of Liberty National’s attack on his character.

We cannot elevate Daugherty’s testimonial evidence of his good character to the status of a judicial admission. Wig-more defines a judicial admission as:

“[a]n express waiver made in court or preparatory to trial by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact.... This is what is commonly termed a solemn — i.e., ceremonial or formal — or judicial admission or stipulation. It is, in truth, a substitute for evidence, in that it does away with the need for evidence.
“This judicial admission is sharply marked off from the ordinary or quasi-admission — which indeed does not deserve to bear the same name. The latter is merely an item of evidence, available against the party on the same theory on which a self-contradiction is available against a witness.... [T]he [quasi-admission] is not conclusive; but ... the [judicial admission] is conclusive.”

9 John Henry Wigmore, Evidence in Trials at Common Law § 2588 at 821-22 (Chadbourn rev. ed.1981) (footnotes and emphasis omitted). “It is of the nature of an admission, plainly, that it be by intention an act of waiver relating to the opponent’s proof of the fact and not merely a statement of assertion or concession made for some independent purpose.” 9 Wigmore, § 2594(2) at 833 (footnote omitted). See also Webb v. State, 539 So.2d 343, 352 (Ala.Crim.App.1987). At most, Daugherty’s testimony created a jury question as to his good character, to be weighed against the Liberty National defendants’ evidence of disreputable acts.

Nevertheless, even if we were to conclude that Daugherty’s testimony regarding his “excellent” reputation in the community was admissible as evidence “destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation,” Tidmore, 33 Ala.App. at 256, 32 So.2d at 780, when the plaintiff has proven slander per se, the law presumes injury to reputation and mental suffering. See New York Times Co. v. Sullivan, 273 Ala. 656, 686, 144 So.2d 25, 50 (1962), reversed on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“ ‘It is not necessary, in order to recover general damages for words which are actionable per se, that the plaintiff should have suffered any actual or constructive pecuniary loss. In such action, the plaintiff is entitled to recover as general damages for the injury to his feelings which the libel of the defendant has caused and the mental anguish or suffering which he had endured as a consequence thereof.’”) (quoting Johnson Publishing Co. v. Davis, 271 Ala. 474, 489, 124 So.2d 441, 452 (1960)) (emphasis added); Comer v. Advertiser Co., 201 Ala. 159, 160, 77 So. 685, 686 (1918) (in defamation per se case, plaintiff was entitled to a presumption of actual damage from “mental suffering and loss or impairment of business or reputation”)(emphasis added); Starks v. Comer, 190 Ala. 245, 254, 67 So. 440, 443 (1914) (“The communication being libelous per se ... the law presumes such general damage to the plaintiff as mental suffering and injury to his reputation, and it necessarily follows that these elements of damage need not be alleged in the complaint not supported by proof.”)(emphasis added). Thus, even if Daugherty’s evidence concerning his good character negated any injury to his reputation, because the defamation involved in this case was slander per se, the law recognizes a right to recover for mental anguish.

V. Was the compensatory-damages award supported by the evidence?

The Liberty National defendants argue that the trial court erred in denying their motions for a remittitur and their motions for a new trial, because, they argue, the jury’s award of $300,000 in compensatory damages was not supported by the evidence. According to the Liberty National defendants, a jury verdict awarding damages for mental anguish is subject to strict scrutiny in a case where the plaintiff has suffered no physical injury or offers little or no direct evidence concerning the degree of his alleged mental anguish. See Kmart Corp., 723 So.2d at 578. The Liberty National defendants argue that the only evidence regarding Daugherty’s alleged mental anguish was the “nonspecific” and “indefinite” testimony of Daugherty and his wife and that this testimony alone is not sufficient to sustain a $300,000 compensatory-damages award. Based upon the previous discussion of the presumption of injury to reputation, we cannot assume that the entire award should be viewed as related only to mental anguish. Nevertheless, this Court has stated the following with respect to the quantum of proof necessary to support damages for mental anguish:

“ ‘Under Alabama law, the presence of physical injury or physical symptoms is not a prerequisite for a claim for damages for mental anguish. “The plaintiff is only required to present some evidence of mental anguish, and once the plaintiff has done so, the question of damages for mental anguish is for the jury.” The amount of the jury’s award is left to the jury’s sound discretion, and the jury’s award will not be set aside absent a clear abuse of discretion. Also, a jury’s verdict is presumed correct, and that presumption is strengthened by the trial court’s denial of a motion for new trial.’ ”

Horton Homes, Inc. v. Brooks, 832 So.2d 44, 53 (Ala.2001), quoting Kmart Corp., 723 So.2d at 578. The testimony of a witness is admissible to prove that he or she suffered mental anguish as a result of the alleged wrongdoing by the defendant. Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala.2001). However, we give stricter scrutiny to an award of damages for mental anguish where the victim has offered little or no direct evidence concerning the degree of suffering he or she has experienced. Horton Homes, supra. “Mental anguish includes anxiety, embarrassment, anger, fear, frustration, disappointment, worry, annoyance, and inconvenience.” Horton Homes, 832 So.2d at 53.

Daugherty testified that from 1994 until he sued the Liberty National defendants in 1996, he received approximately 25 to 30 telephone calls from former Liberty National customers regarding visits they had received from Hartley. Daugherty testified that as a result of the telephone calls he began to develop high blood pressure, became very irritable, and felt terrible. Daugherty testified that the stress related to Hartley’s statements adversely impacted his relationship with his wife. He testified that during this period he would go home and say things to his wife that he should not have said to her. Daugherty testified that as a result of Hartley’s statements he became fearful that he would lose his insurance license, that he would be sued, and that he would not be able to support his family. Daugherty testified that he had worked all his life to build a good name, and he felt that his name was being destroyed.

Sybil Daugherty, Daugherty’s wife, also testified regarding Daugherty’s mental anguish. She testified that since learning of Hartley’s statements, Daugherty had been depressed, worried, and anguished. She testified that Daugherty could not sleep at night. She testified that Daugherty often woke up in the middle of the night and that when he did she and he would sit and talk. She testified that Daugherty worried a lot about his reputation and that Hart-ley’s statements had caused Daugherty to become irritable with her at times. The fact that the Liberty National defendants may not have succeeded in ruining Daugherty’s reputation does not justify a reduction of the damages awarded for mental anguish sustained while worrying day and night as to whether the slanderous statements would gain traction in the community.

The testimony of Daugherty and his wife described mental anguish over a period of approximately two years in sufficient detail to permit a thorough cross-examination. While the jury’s verdict of $300,000 is higher than a Justice of this Court, sitting as a juror, might have awarded, that is not the test to determine whether such an award is excessive. This award is sufficiently grounded in evidence to withstand the strict scrutiny of the jury’s verdict mandated by Kmart.

VI. Conclusion

For the foregoing reasons, the trial court’s order denying the Liberty National defendants’ motions for a judgment as a matter of law, motions for a remittitur of the compensatory-damages award, and motions for á new trial is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ„ concur.

      . Section 27-8-28, Ala.Code 1975, was repealed by Act No. 2001-702, p. 1509, § 16, effective January 1, 2002.