author: BEATTY, Justice. JONES, Justice

text:
    David R. TODD v. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, an unincorporated association.
    81-1063.
    Supreme Court of Alabama.
    Nov. 18, 1983.

      Paul D. Myrick and Joseph F. Danner, of Darby & Myrick, Mobile, and Robert A. Wills, Bay Minette, for plaintiff.
    William E. Mitch and Frederick T. Kuyk-endall, III, of Cooper, Mitch & Crawford, Birmingham, and Kenneth Cooper, Bay Mi-nette, for defendant.
   BEATTY, Justice.

The plaintiff appeals from an order granting a new trial, or, in the alternative, a remittitur. We affirm.

A strike by union employees of Den-Tal-Ez Manufacturing Company, represented by United Steelworkers of America (defendant), began on February 3, 1978. In his original complaint filed February 9, 1978, David Todd (plaintiff), an employee of Den-Tal-Ez who continued to work despite the strike, sought $10,000 compensatory damages and $100,000 punitive damages, claiming to have suffered property damage and mental anguish as a result of the alleged unlawful attempts by United Steelworkers to prevent, and conspiracy to prevent, employees from continuing to work during the strike. In March 1982, three years after filing his original complaint, Todd amended his complaint, thereby increasing his claim for punitive damages from $100,000 to $2,000,000. Trial ensued, and the jury returned a verdict for Todd in the amount prayed for: $10,000 compensatory damages and $2,000,000 punitive damages. Judgment was entered for that amount.

United Steelworkers filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, assigning six grounds of support. Four of these grounds raised issues not material here, while the other two grounds challenged the amount of the judgment as excessive and contrary to the evidence, and, as such, as having been given by a jury influenced by passion and prejudice. In due course, the trial court entered the following order:

“This cause came on to be heard on motion by Defendant for a New Trial or in the Alternative, a Judgment Notwithstanding the Verdict on the ground, among others, that the damages awarded by the Jury herein, are excessive, and the Court having heard the argument of counsel finds the verdict rendered by the Jury to be excessive by the amount of $1,983,869.00. It is therefore;
“ORDERED, ADJUDGED and DECREED that the Defendant’s Motion for a New Trial, be and it hereby is, Granted, unless within 21 days after this date, the Plaintiff files with the Clerk of this Court a written instrument remitting all damages in excess of $26,131.00 and agreeing to a reduction of judgment to $26,131.00 together with all costs, in which event the Motion for a New Trial is in all respects, Denied.”

Todd contends that the trial court abused its discretion in granting United Steelworkers’ motion, in essence, because denial of the motion was conditioned on agreement by the plaintiff to a substantial remittitur of the damages assessed by the jury, and the method by which the trial court arrived at the remittitur was improper.

The threshold issue to be decided by this Court is whether the method by which the plaintiff has attempted to supplement the record on appeal is procedurally correct under Rule 10 of the Alabama Rules of Appellate Procedure. In his brief, plaintiff has included the affidavit of one of his counsel at trial in which the affiant attempts to relate, from his recollection, the unreported and in camera proceedings and statements made by the trial court during the hearing on defendant’s motion for a new trial. The plaintiff asks that this affidavit be made part of the record on appeal pursuant to Rule 10(f), A.R.A.P., which provides:

“(f) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted.... ” (Emphasis supplied.)

It is clear from the language in Rule 10(f) that it was intended to apply in situations where there were omissions from the record by error or accident, or misstatements in the record. Although none of these specified reasons applies in the present case, the plaintiff does not offer any rationale for his attempt to supplement the record by way of Rule 10(f).

The defendant, in brief, has objected to the plaintiff’s attempt to use Rule 10(f) to supplement the record on appeal. As counsel for the defendant point out, Rule 10(d), A.R.A.P., is the appropriate rule with which plaintiff must comply in order to supplement the record when no report of the proceedings was made. This rule carefully fixes the procedure and time limits that must be followed in order to effect such supplementation:

“(d) Statement of the evidence or proceedings when no report was made dr when the transcript is unavailable. If no report of the evidence or proceedings at hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served within 49 days (seven weeks) after notice of appeal on the appellee, who may serve objections or proposed amendments thereto within seven days (one week) after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be filed with and included by the clerk of the trial court in the record on appeal.”

The plaintiff has failed to comply with the procedures set out in Rule 10(d); and, therefore, the affidavit, which the plaintiff has included and relied upon in his brief, is not properly before this Court and cannot be considered as part of the record on appeal.

The remaining issue to be decided is whether the trial court abused its discretion in granting a new trial, conditioned on a remittitur by the plaintiff of $1,983,869.

The trial court is accorded a large measure of discretion in determining whether to grant a new trial and imposing conditions of remittitur upon that determination. Fields v. Parker, 361 So.2d 356, 357 (Ala.1978); Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958); Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So.2d 633 (1948). This practice is recognized in Rule 59(f), A.R.Civ.P.:

“(f) Remittitur. The court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial;...”

This Court has stated that when the trial court exercises its discretion in making this determination its action on appeal is presumed to be correct. Mr. Justice Simpson explained this principle in Birmingham Electric Co. v. Thompson, supra:

“Regrettably, from the standpoint of an appellate court seeking to appraise the correctness of the amount of the judgment appealed from, we are not advantaged as the jury and the trial judge were in observing the [trial of the case].... Nor is there any yardstick to measure the amount of recompense which should be awarded for ... mental suffering.
“We must, perforce, rely upon the good judgment of the trial court, an able jurist of long experience, who was so advantaged and who reduced the judgment to the amount stated. On this point we must be impressed with his conclusion and, indeed, it has weight on review, and a favorable presumption as to its correctness is indulged. Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545(18); Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830(6).” 251 Ala. at 466-467, 37 So.2d 633.

The above principle recognizes that in order to decide an abuse of discretion issue on appeal this Court must review the trial court’s judgment, which was necessarily based upon its observation of all the witnesses who testified in the case, and other incidents of trial which cannot be reflected in the record and which are not available for observation by this Court. Airheart v. Green, supra.

Therefore, this presumption of correctness will apply in the absence of a showing in the record that the trial court was palpably in error. Consequently, where the trial court finds that the jury’s verdict is so excessive as to indicate that it resulted from bias, passion, prejudice, corruption, or other improper motive, and thereby denies a new trial conditioned upon the plaintiff’s filing of a remittitur of a specified amount of the damages awarded by the jury, the trial court’s ruling will not be reversed, unless, after allowing all reasonable presumptions in favor of its correctness, the preponderance of the evidence in favor of the verdict is so decided as to clearly convince this Court that the trial court’s determination is wrong and unjust. And if the decision of the trial court was simply to grant a new trial, and the appeal is from that ruling, the decision will not be reversed unless the evidence plainly and palpably supports the verdict. Airheart v. Green, supra; Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). Accord, Fields v. Parker, supra; Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); White v. Blair, 95 Ala. 147, 10 So. 257 (1891).

A review of the record of this case fails to disclose that the trial court abused its discretion in granting the defendant a new trial conditioned on plaintiff’s remittitur of a substantial portion of the damages.

The plaintiff sought compensatory damages in the amount of $10,000 for property damage and mental anguish suffered as a result of actions taken and threats made by certain striking members of United Steelworkers. At trial, plaintiff proved actual damages of $131, which was the cost to repair a rear window in his van that was broken by a brick alleged to have been thrown by one of the picketing steelworkers. Plaintiff further testified that he was made nervous and upset by verbal threats and insults directed toward him as he crossed the picket line each day to go to work. In addition, Todd took protective measures, which he felt were necessary, in order to prevent suffering any further damages. These steps included installing flood lights around his home, checking for and removing nails and tacks placed beneath his tires in the driveway, and putting up a sheet of plywood on the front of a large window in his living room. Although the strike lasted approximately five- months, the plaintiff did not miss any days from work as a result of defendant’s conduct.

During the course of the trial, the trial court admitted, often over objection by the defense, relevant, yet otherwise immaterial, evidence of prior and subsequent acts of violence and vandalism alleged to have been committed by striking members of United Steelworkers against other Den-Tal-Ez employees who continued to work during the strike, of which the plaintiff had knowledge. This evidence was admitted apparently for the limited purpose of corroborating the extent of the plaintiff’s mental anguish and the measures he had taken as a result thereof. Although this evidence was admitted, only one limiting instruction was given to the jury, and it was given only after the defendant had moved for a mistrial, and only to the effect that the jury should disregard answers that were not responsive to questions. The jury was not given a limiting charge with regard to this evidence at the close of the trial.

In addition to his claim for compensatory damages, the plaintiff sought $2,000,000 in punitive damages. Therefore, the jury should have assessed these damages based on their determination of the enormity of the wrong inflicted upon the plaintiff, together with the necessity of preventing a similar wrong from being committed in the future. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1957). Accord, Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

It is clear that the trial court cannot order a remittitur or a new trial merely because, in its opinion, the jury gave the plaintiff too much. Airheart v. Green, supra; Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980). In determining that the jury verdict here was excessive and thus contrary to the evidence, it is indeed conceivable that the trial court believed the excessive verdict was an indication that the jury was prejudiced by the aforementioned evidence of other alleged bad acts by the defendant, or that the jury was biased, or had an otherwise improper motive. The trial court’s acting on such a belief is clearly not an abuse of discretion.

Furthermore, in his reply brief, plaintiff makes the bare allegation that it is evident from an examination of the figures themselves, i.e. the amount of the jury verdict and the amount of the proposed judgment after the remittitur, that the trial court employed an arbitrary mathematical formula in arriving at the remittitur, and therefore committed a manifest abuse of its discretion. There is, however, no evidence in the record to support this allegation, and the numbers do not prove, on their face, that the trial court abused its discretion by applying a formula to determine the amount of damages that should be remitted.

Indeed, “remittiturs ... are favored .. . in proper cases, for the promotion of justice and the ending of litigation.” Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 635, 59 So. 273, 279 (1912). It is important to reiterate that the trial judge’s decision to reduce or set aside the jury’s verdict “involved his judgment based upon his observation of all the witnesses who testified, his consideration of all the evidence, and his awareness of the other incidents of the trial, ‘[all of] which cannot be reflected in the transcript and which are not available for observation by us.’ Airheart, supra; Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536 (1938).” Fields v. Parker, supra, 361 So.2d at 360-61.

Upon examination of the entire record, and granting the presumption to which its action is entitled, it cannot be stated that the trial court’s denial of a new trial conditioned on a remittitur of $1,983,869 was a plain and palpable error and manifest abuse of discretion, “regardless of [this Court’s] beliefs regarding any sum to which the plaintiff might have been entitled.” Fields v. Parker, supra, 361 So.2d at 361.

Accordingly, under the authorities cited, the judgment is affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., and JONES, J., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. The propriety of a trial court’s order of a substantial (here, perhaps, more accurately described as radical) remittitur of a jury’s award of damages presents one of the most difficult issues for appellate review. Because there is no cross-appeal in this case, the factual resolution by the jury stands unchallenged. The Defendant was found guilty of inflicting intentional injury on the Plaintiff — the highest degree of culpable conduct known to the law of torts. It is not the $10,000 award of compensatory damages that is questioned, of course; rather, it is the $2 million award of punitive damages that presents a serious problem. By almost any reasonable subjective standard, this award is too high. The trial judge properly exercised his discretion to reduce it. By some unexplained method, he reduced the total award to $26,131. The $131 represented the physical property loss; but this amount was included within the jury’s award of $10,000 compensatory damages. Does this, plus the size of the remittitur ordered, render the trial court’s action an abuse of discretion as being totally arbitrary? And by what standard do we answer that question?

It is not a question of this Court’s authority to alter the award as reduced by the trial court; rather, it is a question of should we alter it, and, if so, by what amount, using what yardstick? These are tough questions, but answering them is what we “hired on” for.

Personally, I feel that the jury verdict was excessive; but the amount by which the verdict was ruled excessive by the trial court was also excessive.. I think we should have sought a consensus on this Court as to the appropriate award and thus given the Plaintiff the option to remit accordingly or suffer a new trial. I would have voted for leaving the jury’s verdict of $10,000 for compensatory damages undisturbed and ordering a remittitur of $1,900,000 as to the punitive damages portion of the verdict, thus reducing the total award to $110,000.

TORBERT, C.J., concurs.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    MOBILE INSURANCE, INC. v. Acie Dellmos SMITH, Herbert Joseph Therrell, and Ilene Deccie Therrell. Acie Dellmos SMITH, Herbert Joseph Therrell, and Ilene Deccie Therrell v. AUTO OWNERS INSURANCE COMPANY, a Corporation and Mobile Insurance, Inc., a Corporation.
    82-279, 82-285.
    Supreme Court of Alabama.
    Nov. 23, 1983.

      Horace Moon, Jr. and William G. Jones, III, Mobile, for appellant/cross-appellee Mobile Ins. Inc.
    Richard Alexander, Mobile, for appel-lee/cross-appellant Acie Dellmos Smith.
    Billy C. Bedsole, Mobile, for appel-lees/cross-appellants Herbert Joseph Ther-rell and llene Deccie Therrell.
    Jon A. Green of Sintz, Pike, Campbell <& Duke, Mobile, for eross-appelleé Auto-Owners Ins. Co.
   JONES, Justice.

These appeals stem from a judgment in a jury trial awarding Plaintiffs $61,250 in a declaratory determination construing the rights and liabilities of the respective parties under an insurance policy. Defendants Mobile Insurance, Inc., and Auto Owners Insurance Company filed separate notices of appeal on December 10, 1982. Plaintiffs cross-appealed against both Defendants, seeking reversal and a new trial on the punitive damages issue, which had been foreclosed by the trial court’s grant of Defendants' motions for directed verdict on Plaintiffs’ counts for fraud and bad faith. Auto Owners paid the judgment in full, and Plaintiffs accepted the payment, on December 30, 1982, whereupon Auto Owners’ appeal was dismissed.

The issue before us concerns the propriety of the appeal by Mobile Insurance and the cross-appeal by Plaintiffs following the satisfaction of the judgment. We hereby grant Mobile Insurance’s motion to dismiss Plaintiffs’ cross-appeal, deny Plaintiffs’ motion to dismiss the appeal by Mobile Insurance, and reverse and remand to the trial court with directions to enter judgment in favor of Mobile Insurance.

FACTS

On August 6, 1978, Acie Dellmos Smith bought a Chevrolet Malibu. Subsequently, while driving this automobile, he was involved in an accident with Herbert Joseph Therrell and llene Deecie Therrell. On the date of the accident, September 22, 1978, Smith had an automobile insurance policy with Auto Owners. He had had that policy for several years. The insurance policy provided that, if Smith acquired an additional automobile which he sought to have insured under the policy, he must notify Auto Owners within thirty days from the acquisition of the automobile.

Mobile Insurance is an independent insurance agency which places insurance with several insurance companies, one of which is Auto Owners. The testimony is in conflict as to when the automobile was reported as an additional automobile. Smith reported the accident on September 25, 1978, by notifying Mobile Insurance, who related this information to Auto Owners, who then had an adjuster investigate the claim and take a statement from Mr. Smith and his wife. Following the statement, Auto Owners denied coverage to Smith on the basis that the automobile had not been reported as an additional automobile under the insurance policy within the thirty-day period as required by the policy.

Smith, having been denied coverage by Auto Owners for the accident, undertook to defend the law suit that had been filed against him by the Therrells. Thereafter, a verdict was rendered and judgment entered against Smith in the sum of $51,000. Smith then filed suit, with the Therrells aligned as Plaintiffs, for declaratory determination against Auto Owners and Mobile Insurance, which resulted in a jury verdict and judgment for Plaintiffs in the sum of $61,250. Mobile Insurance and Auto Owners filed separate notices of appeal. Plaintiffs cross-appealed; then Auto Owners paid, and Plaintiffs accepted, the full amount of the judgment. Auto Owners dismissed its appeal. Before this Court for determination are Plaintiffs’ cross-appeal and the original appeal by Mobile Insurance.

ISSUES

Preliminarily, we must determine whether, given the satisfaction of the judgment by Defendant Auto Owners, anything remains from which to appeal. Can Plaintiffs appeal the trial court’s directed verdict against Plaintiffs’ counts of fraud and bad faith? Additionally, can Defendant Mobile Insurance appeal the trial judge’s denial of its motion for directed verdict?

DECISION

I. Plaintiffs’ Cross-Appeal

Auto Owners tendered, and Plaintiffs accepted, the judgment amount, thereby. satisfying the judgment. Therefore, because the judgment was satisfied, there is nothing from which Plaintiffs can appeal.

Plaintiffs attempt to persuade us that their claim for punitive damages is separate and distinct from their claim, and subsequent judgment, for compensatory damages. We find this contention without merit. It has long been the law in Alabama that a person can sue any number of parties, obtain a judgment against any one, or several of them, but can gain but one satisfaction. Plaintiffs cannot, and do not, dispute the fact that the judgment in this case has been paid and satisfied. Therefore, Plaintiffs’ cross-appeal must be, and it hereby is, dismissed. Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978); Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961).

II. Mobile Insurance’s Appeal

A. Motion to Dismiss

Counsel for Mobile Insurance contends that regardless of the satisfaction of the judgment by co-defendant Auto Owners, Mobile Insurance has the right to maintain its appeal. We agree.

Within the factual context there presented, this Court in Moore v. Cooke, 264 Ala. 97, 84 So.2d 748 (1956), said:

“[T]he rule has long obtained in this state that the mere payment of a judgment by a judgment debtor does not work a waiver of the right of appeal. First Nat. Bank of Birmingham v. Garrison, 235 Ala. 94, 177 So. 631, and cases cited. See Freeman on Judgments, 5th Ed., § 1165, p. 2410. We think that principle has application here, for if it can be said that the record before us sufficiently shows a payment of the judgment from which this appeal is taken, it is conceded that such payment was made by the insurance carrier on the defendant’s behalf.” 264 Ala. at 100, 84 So.2d at 750.

Likewise, when faced with a similar situation, the California Supreme Court held in In re Merrill’s Estate, 29 Cal.2d 520, 175 P.2d 819 (1946), that where a money judgment makes two defendants jointly liable, voluntary satisfaction by one of them does not deprive the other of his right to appeal. The court added that “deprivation of the right to appeal ensues only when it is shown that the payment of the judgment was by way of compromise or with an agreement not to take or prosecute an appeal.” 29 Cal.2d 524, 175 P.2d at 822. In Merrill, there was no voluntary satisfaction by the defendant seeking to appeal; rather, the judgment was paid by his co-defendant, without knowledge or consent on the part of the appealing defendant.

We are persuaded by the Moore, Garrison, and Merrill decisions to deny Plaintiffs’ motion to dismiss the appeal taken by Mobile Insurance; and we hold that a defendant is not precluded from appeal when a co-defendant pays and the plaintiff receipts payment in satisfaction of the judgment.

B. Merits

Mobile Insurance contends that the judgment entered by the trial court is clearly contrary to the law in this State. Because Mobile Insurance is an admitted agent of Auto Owners, counsel for Mobile Insurance argues that the judgment cannot bind the principal, as well as the agent, under the principal’s contract. We agree.

In Gillis v. White, 214 Ala. 22, 106 So. 166 (1925), this Court stated:

“Where a complaint declares on a contract as made with the plaintiff by one of the defendants as the agent of another defendant, it states no cause of action against the agent defendant.
“When one contracts merely as the agent of a disclosed principal, he binds either his principal or himself, but not both; and a joint action against both involves a practical as well as a legal anomaly.
“If the principal was bound, as intended, the agent cannot be held liable on any principle of law or justice.” 214 Ala. at 23, 106 So. at 167.

In Gillis, the purported agent was found not to be an agent at all, but, instead, was found to be an independent buyer of cotton. Thus, he was held liable under the contract negotiated by him on the “principal’s” behalf.

The judgment obligating the agent on the principal’s contract was reversed in Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972). The Court said:

“An agent is presumed to intend to bind his principal only and to incur no personal liability and unless an intention to substitute or superadd his personal liability for or to that of his principal is clearly shown, he will not be bound in his individual capacity. — 3 C.J.S. Agency § 215 b, p. 121. Certain it is that such an intention cannot be said to be clearly shown by the evidence in this case.” 288 Ala. at 104, 257 So.2d at 350.

Likewise, no such intent can clearly be shown by the evidence in this case. The only policy of insurance introduced at trial was the policy of insurance between Smith and Auto Owners existing at the time of the accident. It was not contested that Mobile Insurance was acting as an agent for Auto Owners with respect to the policy of insurance in question.

No policy of insurance existed at any time, however, between Smith and Mobile Insurance. The facts that Mr. Smith’s wife dealt with Mobile Insurance over the phone, and that he mailed his premium checks to Mobile Insurance, do not serve to bind the agent on the principal’s contract. The jury found, and the evidence supports the finding, that Auto Owners, as the only insurer, was bound on its contract of insurance. If Auto Owners, the principal, was bound, it logically follows that Mobile Insurance, the agent, cannot be so bound under the only theory stated against them — as insurer. Gillis, supra, and Sealy, supra; see, also, Alabama Traction Co. v. Selma Trust & Savings Bank, 217 Ala. 653, 117 So. 19 (1928).

We have not overlooked the nature of the Plaintiffs’ claim barred from the jury’s consideration by the trial court’s directed verdict — the torts of fraud and bad faith. While, ordinarily, the contract rule of Gillis and Sealy, supra, does not operate with equal force in the respondeat superior tort context, where the agent’s conduct, which renders the principal liable, necessarily binds the agent, an exception exists here, because a requisite element of the bad faith species of fraud is a breach of the payment provisions of the contract. Furthermore, Smith does not contend that he asserted any tort claim against Mobile Insurance other than on its tortious failure to honor the insurance contract as an insurer — a claim not supported by the evidence.

The trial court, therefore, erred in refusing to grant Mobile Insurance’s motion for directed verdict on Count I, the only count submitted to the jury, because there was no evidence that Mobile Insurance was an insurer for Smith. Because Mobile Insurance was not an insurer for Smith, it follows that Mobile Insurance had no duty to defend Smith in the action filed against him by the Therrells. The judgment of the trial court against Mobile Insurance is hereby reversed, and the case is remanded with instructions for the trial court to enter judgment for Defendant Mobile Insurance.

82-279, REVERSED AND. REMANDED WITH INSTRUCTIONS; 82-285, APPEAL DISMISSED.

TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    Darrell SPROWL v. Daniel D. WARD.
    82-691.
    Supreme Court of Alabama.
    Nov. 23, 1983.

      John N. Pappanastos and Laura A. Callo-way of Pappanastos, Samford, Roberts & Blanchard, Montgomery, for appellant.
    Fred W. Tyson of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   SHORES, Justice.

Darrell Sprowl, plaintiff, appeals from a judgment entered on a jury verdict against him in this dental malpractice case. We affirm.

The facts : are essentially undisputed. Sprowl, after suffering from a toothache for several weeks, made an appointment with Dr. Ward. After an initial examination and X-rays, Dr. Ward diagnosed Sprawl’s problem and advised Sprowl that it could be treated by either a root canal or extraction of the affected tooth. Sprowl elected to have Dr. Ward perform the root canal. The initial X-rays revealed that there was a big amalgam filling which was pin-retained in the tooth. The presence of this filling gave Dr. Ward reason to be concerned about the use of a rubber dam during the root canal procedure. A rubber dam is specifically designed for use during this operation to prevent debris from falling into the patient’s mouth and being swallowed. The rubber dam is held in place by a clamp which is actually placed around the affected tooth. The clamp adheres very tightly and could damage or fracture a weak tooth or an amalgam filling. In this case, Dr. Ward made the decision, without consulting Sprowl, not to use the rubber dam, because of the risk of fracturing the filling or tooth, which would cause additional expense and discomfort to the patient.

In the course of the root canal procedure, Dr. Ward allowed a dental file, which is a metal, spiral-shaped file about one-and-one-quarter inches long, to drop into Sprawl’s mouth and be swallowed. Sprowl ultimately passed the file, apparently without physical injury.

Sprowl filed this suit against Dr. Ward. The complaint contained counts alleging negligence, wanton conduct, breach of contract, and the tort of bad faith. Prior to the trial, the court below dismissed the last count for failure to state a claim upon which relief could be granted. The case proceeded to trial on the remaining counts. Both parties requested a directed verdict, and both motions were denied. The case was submitted to the jury on those remaining counts, and the verdict was returned in favor of Dr. Ward. The plaintiff’s motion for judgment notwithstanding the verdict was denied. This appeal follows.

Sprowl raises two issues. He first argues that the trial judge erred in refusing to grant his motion for directed verdict or, alternatively, his motion for judgment notwithstanding the verdict. He contends that Dr. Ward breached his duty of care by dropping the dental file into Sprowl’s mouth, failing to use a rubber dam during the root canal procedure, and failing to obtain emergency medical services for Sprowl immediately following the accident. Sprowl argues that the evidence does not support the verdict against him, because he has proven all of the elements necessary for a recovery in both tort and contract.

The law in Alabama requires Sprowl to prove that Dr. Ward acted below the standard of care required by law in order to recover under either the tort or contract theory. Ala.Code 1975, § 6-5-484. Expert medical testimony is required to establish this standard of care. Gilbert v. Campbell, 440 So.2d 1048 (Ala.1983).

Dr. Ward was the only expert to testify at the trial. He admitted that the file slipped from his fingers and was swallowed by Sprowl. He also admitted that if he had used a rubber dam during the procedure, Sprowl would not have ingested the dental file. However, there was no evidence that Dr. Ward acted below the applicable standard of care in failing to use a rubber dam. Dr. Ward stated that the majority of dentists he knew did not use a rubber dam regularly and that he uses them only infrequently. He agreed that the dam is effective to prevent debris from falling down the patient’s throat, but would not say that its use was generally accepted.

Dr. Ward explained that there are circumstances under which the use of the rubber dam may be harmful. It was his opinion that the use of the dam in Sprawl’s case might cause the filling to fracture and cause economic hardship to Sprawl. Excerpts from a text on endodontics, recognized by Dr. Ward to be one of the leading authorities on the subject, were admitted into evidence. A portion of this text listed various alternative ways of using the rubber dam. Sprawl argues that Dr. Ward was negligent in failing to use one of these alternatives once he realized that the traditional method would do damage.

The decision to use one method of treatment as opposed to others, where there is reasonable doubt as to the proper course, is not a breach of duty. McTyeire v. McGaughy, 222 Ala. 100, 130 So. 784 (1930). Dr. Ward, based on his expert knowledge and skill, made the decision to forego the use of the dam in this case. Under these facts and according to the expert testimony presented, the decision not to use a dam was a “method of treatment.” Under these circumstances, the jury was authorized to hold that Dr. Ward was not liable for his good faith decision to use one method over another, where there was evidence that the decision was made using reasonable care, and the method chosen was proper according to the standards followed in his field by dentists in the same general neighborhood.

The evidence shows that Dr. Ward was not mishandling the dental file at any time. The file slipped from his fingers by accident. The question of whether Dr. Ward had breached any duty to the patient in this regard was also properly submitted to the jury. We will not disturb the verdict in the absence of a showing that it is against the great weight of the evidence or manifestly unjust. Osborne v. Cobb, 410 So.2d 396 (Ala.1982).

Sprawl’s last allegation of negligence is that Dr. Ward failed to provide emergency medical treatment to Sprawl. The evidence clearly does not support this argument. It is undisputed that Dr. Ward almost immediately attempted to locate two surgeons who he believed would be able to give Sprawl the best treatment. He let Sprawl leave his office only after being satisfied that he was in no immediate danger and did not exhibit any signs of distress. Furthermore, there was no expert testimony from a physician that Dr. Ward’s conduct, which included questioning Sprawl about pain and discomfort and keeping Sprawl from becoming unduly excited, was beneath the expected standard of care.

Sprawl’s second allegation of error is that the trial court erred in dismissing the count alleging the tort of bad faith breach of contract. In Brown-Marx Associates, Ltd. v. Emigrant Savings Bank, 527 F.Supp. 277 (N.D.Ala.1981), the district court correctly stated the present status of the tort of bad faith under Alabama law:

“This court concludes that the Alabama Supreme Court has not recognized an implied duty in law, as distinguished from an implied covenant, of good faith except in ‘an insurance contract context.’ The court thus further concludes that the Supreme Court of Alabama has not applied the bad faith tort action to other than insurance contracts. This court is of the opinion that the Supreme Court of Alabama would be hesitant to do so without a full exploration of the ramifications of such an action.” [Emphasis in original.]

527 F.Supp. at 283. The trial court correctly granted Dr. Ward’s motion to dismiss this count.

The plaintiff’s case was properly submitted to the jury, since he produced by his evidence an inference, at least, of negligence on the part of Dr. Ward in not using a dam while conducting the root canal procedure. Evidence in the form of a recognized text on the subject supported the plaintiff’s claim. Dr. Ward, on the other hand, offered evidence, albeit his own opinion, which, if believed, furnished a justification for not using the dam under the circumstances of this case. The jury simply believed the doctor. This it had a right to do.

There being no error committed by the trial court, we affirm the judgment.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Ex parte J.C. SANDERS, Jr. In re Sarah Evelyn PRATT, et al. v. J.C. SANDERS, Jr., et al.
    82-1241.
    Supreme Court of Alabama.
    Nov. 23, 1983.

      Daniel C. Boswell of Hopper & Boswell, Huntsville, for petitioners.
    James P. (Jim) Smith of Smith & Stevens, Huntsville, for respondents.
   PER CURIAM.

This petition for writ of mandamus seeks an order directed to Judge Lynwood Smith, Jr., of the Circuit Court of Madison County, to allow the unrestrained representation of the petitioner, J.C. Sanders, Jr., by his retained counsel, in the defense of a lawsuit filed against him. The petition is denied.

In September 1981, Sarah Evelyn Pratt filed suit against her brother, J.C. Sanders, Jr., alleging that he had obtained a deed from Allie F. Sanders, their mother, now deceased, by undue influence. Daniel Boswell, of the law office of Hopper and Boswell, entered his appearance for J.C. Sanders, Jr. In October 1981, Pratt filed notice that Edward L. Hopper, of the same firm as Daniel Boswell, was a material witness in the case and requested the trial court to order the firm to “cease and desist representation of the defendant.” The motion remained pending until June 16, 1983, on which date Judge Smith issued the following order:

“(1) The law firm of Hopper and Boswell should be disqualified from representation of defendant J.C. SANDERS, JR. in defense of the plaintiffs’ claim to set aside the deed of Allie F. Sanders if that firm elects to call Edward L. Hopper as a witness for that client — unless such withdrawal ‘would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.’ DR 5-102(A) & DR 5-101(B)(4); National Filtronics, Inc. v. Sherwood Land, Ltd., supra at 14.
“(2) On the other hand, the law firm of Hopper and Boswell may continue to represent defendant J.C. SANDERS, JR. in defense of such claims if it is the plaintiffs who call Edward L. Hopper as a witness (i.e., if he is called ‘as a witness other than on behalf of his client ’), ‘until [such time as] it is apparent that his testimony is or may be prejudicial to his client.’ DR 5-102(B) (emphasis supplied); National Filtronics, Inc. v. Sherwood Land, Ltd., supra.
“Therefore, as framed, the plaintiff’s motion to compel the withdrawal of Hopper and Boswell as attorneys for defendant J.C. SANDERS, JR. is due to be (and it is hereby ORDERED, ADJUDGED, and DECREED that said motion be) OVERRULED and DENIED.
“In so ruling, however, counsel for said defendant should be mindful of the following considerations. First, if plaintiffs do call Edward L. Hopper as a witness on behalf of plaintiffs (presumably under Rule 42(b), Ala.R.Civ.P.), then the law firm will be allowed to continue its representation of J.C. SANDERS, JR. only if it is apparent that Mr. Hopper’s testimony was not (or probably will not be) prejudicial to Mr. Sanders.
“Secondly, if the plaintiffs do not call Mr. Hopper as a witness, then the law firm of Hopper and Boswell may not both call Edward L. Hopper as a witness ‘on behalf of’ J.C. SANDERS, JR., and, continue to represent that client in the trial. The firm may do one or the other, but not both.” [Emphasis in original.]

This order is based upon DR 5-101(B) and DR 5-102(A) and (B) of the Alabama Code of Professional Responsibility (1979), which state:

“DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
“(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
“(1) If the testimony will relate solely to an uncontested matter.
“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
“(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
“DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
“(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
“(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

An affidavit, signed by Hopper and attached to the petition, is the only evidence before us indicating what the substance of Hopper’s testimony would be. After describing the arrangements made for the actual signing of the deed by Allie F. Sanders, Hopper states:

“At the time Mrs. Sanders signed that deed she was as bright as a penny. Her mind was clear and she had no hesitation in giving me orders and instructions as to what she wanted done as her attorney. There was no question in my mind that she was acting totally on her own without any influence from her son, J.C. SANDERS, JR. whatsoever.... J.C. SANDERS, JR. to my knowledge, in no way influenced his mother in signing that deed to him.”

It is undisputed that if Pratt calls Hopper as a witness, Hopper’s testimony will not be prejudicial to Sanders, and it will not be necessary for the firm to withdraw its appearance on behalf of Sanders. Alabama Code of Professional Responsibility DR 5-102(B) (1979); National Filtronics, Inc. v. Sherwood Land, Ltd., 428 So.2d 11 (Ala.1983).

On the other hand, according to Sanders, Hopper is a “key witness, whose testimony is necessary” in the defense of the claim against Sanders. Furthermore, Hopper’s testimony would be on the central, contested issue of the case, i.e., whether Sanders unduly influenced his mother to deed the property in question to him. Disciplinary Rule 5-102(A) requires the entire firm of Hopper and Boswell to discontinue their representation of Sanders if Hopper “ought to be called as a witness” for Sanders. However, we are mindful that there is no record before us, and we are reluctant to state that Hopper must be, or even ought to be, called as a witness. It may be that there are other witnesses, unconnected with this firm, who could testify on this very issue, thus obviating the absolute necessity to call Hopper.

Sanders seeks an order from this Court permitting him to retain the firm of Hopper and Boswell regardless of whether Edward Hopper is called as a witness in his behalf. He argues that disqualification of his retained counsel would subject him to “substantial hardship,” and bring him within one of the exceptional circumstances listed under DR 5-101(B), in which he may continue to be represented by Hopper and Boswell, even though Edward Hopper testifies as a witness for the defense. Sanders points out that this is “an extremely complicated litigation for which over 400 hours of legal time has been expended” at a cost of $4,000.00 to Sanders. He claims that the retention of new counsel at this point would result in additional hours of preparation, costs to him, and delay in the proceedings. This would be true of probably the majority of cases in which new counsel must be retained in the midst of the proceedings. These facts do not distinguish this case from any other similarly postured case.

Sanders claims that this firm is of “distinctive value” to him in that it has represented and advised him in numerous matters for about twenty years. This professional and social rapport is desirable, and its absence may cause some inconvenience and anxiety, but it certainly does not rise to the level of “substantial hardship.” Stagen Realty and Management, Inc. v. Superior Court of Los Angeles County, 88 Cal.App.3d 269, 151 Cal.Rptr. 742 (1979).

We hold that Judge Smith’s order, which accurately applies DR 5-101 and DR 5-102 to this case, is without error. Having no power to forbid or bind either party to call Hopper as a witness, Judge Smith could do no more than order the parties to act in accordance with the disciplinary rules. This he did.

This Court will not issue a writ of mandamus in the absence of a “clear showing of error in the trial court to the injury of the petitioner.” Ex parte Harrington Manufacturing Company, 414 So.2d 74 (Ala.1982). Not only has Sanders failed to prove that Judge Smith erred in delivering his order, but he also failed to show a violation of his legal rights. Accordingly, the writ of mandamus is denied.

WRIT DENIED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ„ concur.


author: TORBERT, Chief Justice. EMBRY, Justice

text:
    Jay JOHNSON and Jay Johnson Business Products, Inc. v. MPL LEASING CORPORATION.
    81-693.
    Supreme Court of Alabama.
    Oct. 7, 1983.
    Rehearing Denied Nov. 10, 1983.

      Prank M. Wilson of Beasley & Wilson, Montgomery, for appellants.
    Warren S. Reese, Jr., and Robert M. Alton, Jr., Montgomery, for appellee.
   TORBERT, Chief Justice.

Defendants Jay Johnson and Jay Johnson Business Products, Inc., (“Johnson”) appeal from a judgment in favor of MPL Leasing Corporation arising out of a breach of contract action. We affirm.

The question to be considered by this Court is whether a foreign corporation, not qualified to do business in this state, may nevertheless utilize Alabama courts to enforce a contract which concerns the lease or sale, or both, of products within Alabama to Alabama citizens.

MPL Leasing Corporation (“MPL”) is a California corporation organized for the purpose of offering alternative financing plans to dealers of Saxon Business Products. Saxon specializes in the sale of paper copiers which are distributed through independent dealers located throughout the United States, including Alabama. Jay Johnson was a Saxon dealer iri' Alabama.

Through mailings and telephone calls into the state, MPL solicited Johnson’s attendance at a sales seminar in Atlanta. Johnson attended the seminar and entered into an agreement with MPL. The agreement provided for Johnson to lease Saxon copiers with the option to buy. MPL shipped the machines into Alabama and filed a financing statement with the Secretary of State.

Johnson became several months delinquent with his payments to MPL. MPL filed suit in Montgomery Circuit Court. Johnson moved to dismiss, alleging, among other defenses, that MPL was not qualified to do business in' Alabama. We find that the trial judge correctly denied the motion.

Section 232 of the Alabama Constitution and § 10-2A-247, Code 1975, bar foreign corporations not qualified to do business in this state from enforcing their contracts through our courts. These laws only come into play “when the business conducted in the state by non-qualified corporations is considered ‘intrastate’ in nature.” First Inv. Co. v. McLeod, 363 So.2d 774, 776, 777 (Ala.Civ.App.1978). See § 10-2-254, Code 1975. See also Kentucky Galvanizing Co. v. Continental Cas. Co., 335 So.2d 649, 651 (Ala.1976). MPL’s activities within Alabama are limited to (1) delivering copying machines by common carrier and (2) filing this action. This Court has never held previously that contacts as minimal as those of MPL constitute “intrastate business.”

For example, in Kentucky Galvanizing, this Court considered whether the foreign, non-qualifying corporation’s contacts were sufficient to constitute “intrastate” business. The facts in Kentucky Galvanizing are indistinguishable from those in this case. The corporation’s activities in Alabama were “simply solicitation of orders and delivery incident to that solicitation.” 335 So.2d at 651. This Court held that “Galvanizing, conducting business in interstate commerce, is justified and welcomed to use the state courts of Alabama to enforce its claim against those who defaulted on payment of an order which was delivered here.” Id. at 652.

In First Investment, the Court of Civil Appeals considered whether a bank, which purchased a promissory note from a foreign, non-qualified corporation, could maintain an action against the maker of the note. The foreign corporation, Great Lakes, solicited franchises for the sale of Christmas trees and delivered Christmas tree seedlings in Alabama. The court found an “absence of facts showing that Great Lakes was doing ‘intrastate’ business in Alabama.” 363 So.2d at 777. Again, these facts are remarkably similar to the present case. Other cases have reached the same conclusion. See In re Delta Molded Prods., Inc., 416 F.Supp. 938, 943 (N.D.Ala.1976), aff’d, 571 F.2d 957 (5th Cir.1978) (applying Alabama law) (combined in-state activities of soliciting, delivery, assembly, and repairs of paper mill machinery do not constitute “intrastate” business).

The appellant cites several cases for the proposition that solicitation of sales constitutes “doing business.” SAR Manufacturing Co. v. Dumas Brothers Manufacturing Co., 526 F.2d 1283 (5th Cir.1976) (applying Alabama law), held that a foreign, non-qualifying corporation (SAR) could not sue on a promissory note against an Alabama co-maker. Unlike MPL, SAR expanded its operation by purchasing a warehouse in Alabama, maintaining two vehicles in Alabama, and employing seven Alabama residents full-time. These factors were “localized enough to easily fall under the ambit of a series of transactions which are primarily intrastate and concomitantly the corporation falls under the satrapy of the qualification statutes .... ” 526 F.2d at 1286. SAR was expressly distinguished on these grounds by this Court in Kentucky Galvanizing Co., 335 So.2d at 652.

In Marcus v. J.R. Watkins Co., 279 Ala. 584, 188 So.2d 543 (1966), the Court confused the test for minimum contacts for service of process with the test for determining whether a foreign corporation must qualify to do business in order to sue in state court. The minimum contacts test for service of process protects defendants against the burden of litigating in a distant forum. The doing business test for qualifying foreign corporations is governed by the limits on state regulation inherent in the Commerce Clause of the United States Constitution. Compare World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), with Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193 (1914), and Uncle Ben’s, Inc. v. Crowell, 482 F.Supp. 1149 (E.D.Ark.1980). See also Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). As these decisions make clear, it is far easier to find that a foreign corporation is “doing business” for service of process than it is to find that the corporation is conducting intrastate business subject to state regulation in view of the Commerce Clause.

The other issues raised by appellant are not persuasive. The mere absence of some exhibits from the trial record does not justify a new trial. See Davis v. City Fed. Sav. & Loan Ass’n, 288 Ala. 236, 259 So.2d 262 (1972). The argument that some questions were improper fails because no objection was raised at trial or no testimony was given in response to the question. See Bevill v. Owen, 364 So.2d 1201 (Ala.1979). The argument that Jay Johnson, as a sole proprietorship, and Jay Johnson Business Products, Inc., as a later incorporated entity, must be treated as two distinct parties is irrelevant, since the corporation assumed the individual proprietor’s obligations. See Andrews v. John E. Smith’s Sons Co., 369 So.2d 781 (Ala.1979). Evidence of Johnson’s financial condition was relevant to Johnson’s counterclaim against MPL concerning the financial viability of the copier’s operation and damage to Johnson’s business reputation. See Miller v. Dacovich, 355 So.2d 1109 (Ala.1978). Finally, this case does not involve inconsistent verdicts merely because Johnson recovered against Saxon on a third-party warranty claim. MPL expressly did not warrant the financed copiers.

Therefore, we hold that MPL is welcome to use Alabama courts to enforce rights arising from the agreement with Johnson. The judgment is affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

EMBRY, Justice

(dissenting):

Because I cannot agree that MPL’s activities are wholly interstate I respectfully dissent.

MPL was organized for the exclusive purpose of financing Saxon Business Products copiers, in particular those which were not selling well. Saxon made large contributions to the original capital structure of MPL. In fact, MPL and Saxon operate out of the same office building. That MPL is a mere conduit of Saxon Business Products is evidenced by Saxon’s refusal to service Johnson’s ppc-1 copiers until payment had been made to MPL. MPL should not now be entitled to masquerade as a distinct entity, shielded by the commerce clause. Cf. Boles v. Midland Guardian Co., 410 So.2d 82 (Ala.Civ.App.1982); King Homes, Inc. v. Roberts, 46 Ala.App. 257, 240 So.2d 679, cert. denied, 286 Ala. 736, 240 So.2d 689 (1970).

FAULKNER, J., concurs.


text:
    BRINDLEY CONSTRUCTION COMPANY, INC.; Aetna Casualty and Surety Company; United Housing Partners Elmwood, Ltd.; Umic Properties, Inc.; Umic Housing Development Corporation; and National Housing Partnership v. FLANAGAN LUMBER COMPANY, INC.
    Civ. 3685.
    Court of Civil Appeals of Alabama.
    June 8, 1983.
    Rehearing Denied July 6, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 82 — 1017.

      Rodney B. Slusher of Peck, Slusher & Bunch, Florence, for appellants.
    Jimmy E. Alexander of Steele, Alexander, Corder & Plunk, Athens, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a materialman’s lien case.

The appellants have a common interest in that they consist of the general contractor for the construction of apartments, the owners of those buildings and the surety for the transfer of the materialman’s lien on real property to a surety bond under § 35-11-233 of the Code of Alabama of 1975. For the sake of simplicity of description they will be collectively referred to as “the owners.”

Flanagan Lumber Company (the supplier) furnished building materials to the general contractor which were utilized in the construction of the owners’ apartments. Pursuant to § 35-11-218 of the latest Alabama Code, the supplier gave notice to the owners whereby a lien was claimed upon certain described real estate “to secure an indebtedness of |5,935.49, plus the interest thereon from March 1, 1982, for materials furnished or used or installed in the aforementioned buildings or improvements on the aforesaid property.... ” The verified statement as filed by the supplier in the probate office used identical language.

The final judgment of the trial court commenced as follows: “This cause was heretofore submitted to the Court upon stipulation of the parties, and upon the testimony and evidence presented to the Court.” An amended certificate of the court reporter is to the effect that “no transcript of testimony was made ... and that no testimony was received of witnesses in said cause.” The appeal record does not contain a transcript of any proceedings in or before the trial court nor any authorized substitute therefor.

The principal sum of $5,935.49 was paid. With a finding that, after such notice, the unpaid balance in the hands of the owners far exceeded the amount claimed as due by the supplier, the trial court rendered a final judgment for the supplier and against the owners for $2,506.86 and authorized enforcement of the judgment against the bond surety. It is ascertainable that, of the judgment, $2,000 was for an attorney’s fee and $506.86 was for accrued interest.

The owners appeal contending that the trial court erred in awarding both attorney’s fees and interest because the notice given to the owners by the supplier was insufficient under said Code § 35-11-218 and because the materialman’s lien statute makes no provision for an award of an attorney’s fee to the successful party.

The stipulation of the parties and some of the documentary evidence which is mentioned in the briefs of counsel are not contained in the record furnished to us. The final judgment and the amended certificate of the court reporter are in dispute as to whether evidence was heard by the court; however, stipulations and documentary evidence connected therewith can aptly be characterized as “evidence.” The owners earnestly argue that only questions of law are here presented; hence they state that it was not essential that such matters be included in the record. However, to accept such argument would be to speculate and assume as to the contents of the stipulation and written or oral evidence which was presented to the trial court. As an example, but without any implication that such was actually contained in the stipulation, therein the owners could have waived certain matters or agreed to definite facts which would have conclusively precluded, as a matter of fact, any successful appeal as to the imposition of either attorney’s fees or interest. We are without authority to simply assume that no such facts were contained in the stipulation for we must presume that the stipulation was sufficient to fully sustain the judgment. Valley Mining Corp., Inc. v. Metro Bank, 383 So.2d 158, 165 (Ala.1980); Jenkins v. State of Ala bama, 406 So.2d 428 (Ala.Civ.App.1981). Without the stipulated information and documents which were before the trial court, we are left without any means of determining the factual foundation of the trial court’s judgment and must presume it was correct.

This court’s policy is to determine every case upon its merits if we can reasonably and rationally do so without undue stress to the statutes, rules or precedents which govern our review of cases. It is with much reluctance and only after considerable research, contemplation and study that we have concluded that the judgment of the trial court must be affirmed without responding herein to the interesting issues which were raised and argued by learned and dedicated counsel for the owners. The following decision prohibits any other disposition by us:

“The rule is that where it is apparent from the record that the trial court had before it certain material documentary evidence which was not set out in the record, it will be conclusively presumed on appeal that evidence omitted from the record but heard by the court will sustain the judgment. Local No. 157, etc. v. Local No. 4202, etc., 266 Ala. 354, 96 So.2d 297. This last cited case also quotes the following from Moore v. Pettus, 260 Ala. 616, 625, 71 So.2d 814, 821:
“ ‘ “ * * * Under our well established rule we cannot disturb a finding of fact by a trial court where there was evidence before the trial court which may have influenced it in arriving at its finding of fact and which is not before us. Dancy v. Ratliff, 201 Ala. 162, 77 So. 688; Jones v. Jefferson County, 203 Ala. 137, 82 So. 167.” ’
It then adds: ‘To the same effect are the following,’ and cites ten other cases.
“It was also said in Patton v. Endowment Department of A.F. & A.M., 232 Ala. 236, 167 So. 323, that where it appears that the trial court had before it material evidence which is not before us, we cannot affirm error on the part of the court in the judgment rendered. Ten cases are cited in support of that proposition.”

Davis v. City Federal Savings & Loan Association, 288 Ala. 236, 237, 259 So.2d 262, 264 (1972). We are limited in our review of the facts to the record alone and even the excellent briefs filed by counsel for both sides, which recite facts outside of the transcript, cannot change, alter, vary or enlarge the record. Green v. Standard Fire Insurance Co. of Alabama, 398 So.2d 671 (Ala.1981); Roberts v. Roberts, 424 So.2d 644 (Ala.Civ.App.1982). We must affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: PER CURIAM

text:
    James Otis ROBERTS, et al. v. The STATE OIL AND GAS BOARD OF the STATE OF ALABAMA, etc.
    Civ. 3518.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied Aug. 3, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 82-1099.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellants.
    James Otis Roberts, pro se.
    Broox G. Garrett, Jr. and Rae M. Crowe, Sp. Asst. Attys. Gen., and Kirk C. Shaw of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   PER CURIAM

The appellants-Roberts, et al., received an adverse ruling from the State Oil and Gas Board. The appellant pursuant to § 9-17-15, Ala.Code (1975), appealed to the circuit court. The circuit court’s action was adverse to appellant and he now appeals to this court.

The appellant, through able counsel, raises several specific issues; however, the dis-positive issues are whether the Board’s ruling was supported by the evidence and whether due process was complied with at the Board’s hearings.

We find no error requiring reversal and affirm.

The facts in pertinent part are as follows:

Appellant-Roberts owned 120 acres of land that, prior to 1978, was included in the Smackover Gas Pool of Big Escambie Creek Field. Thereafter, in 1978, the Oil and Gas Board excluded the section including Roberts’s land based on evidence that this section did not contain hydrocarbons in paying quantities.

In 1979, an amendment to § 9-17-12, Ala.Code (1975), became effective. Briefly, that statute, inter alia, establishes limits on the acreage of each drilling or production unit. It also provides that the drilling units can be enlarged to include adjoining lands “provided such action is justified by sufficient technical data, indicating that such acreage or land in excess of the aforesaid maximum limitations is being drained or is in imminent danger of being drained and that the owners of such said excess ... cannot otherwise receive their just and equitable share of production from the pool being so drained.... ”

Roberts sought to have the Big Escambia Creek Field enlarged to include his adjoining land in accordance with the above statute.

A hearing by the Oil and Gas Board was held in June, 1981, to consider Roberts’s petition to enlarge the Escambia Field to include Roberts’s property. At that hearing, representatives of Exxon, the operator of the units in Escambia Field, were present to oppose Roberts’s petition. That hearing, for one reason or another, was continued until August, 1981.

At the August hearing, testimony was heard and at the conclusion the Board advised both parties that they would take the matter “under advisement” and that both parties would be allowed to submit post-hearing briefs. The briefs were submitted in September, 1981, and after considering the same, the Board informed both parties that another hearing would be held so that the parties could present any additional evidence which would help the Board resolve the factual issues. Roberts protested strongly against holding this additional hearing.

The hearing reconvened in October and the Board allowed Louisiana Land and Exploration Company to intervene. Louisiana Land and Exploration was a lessee in the Big Escambia Creek Field.

At the conclusion of the hearings, the Board ruled that Roberts did not submit sufficient credible technical data to establish that Roberts’s land was underlain by hydrocarbons or that the Big Escambia Creek Field units were draining hydrocarbons from under the land.

From that adverse ruling Roberts sought judicial review pursuant to § 9-17-15. In addition, Roberts added a second count claiming that the Board members had deprived Roberts of rights secured under the Due Process and Equal Protection clauses of the fourteenth amendment to the United States Constitution. Roberts also alleged that the Board had violated certain state constitutional rights.

In connection with the second claim against the Board, Roberts sought discovery by way of deposing the individual members of the Board.

The circuit court found that there was ample evidence to support the Board’s ruling that Roberts’s land should not be included in the Big Escambia Creek Field. Furthermore, the trial court granted summary judgment against Roberts on the violation of due process claim and would not allow Roberts to depose the Board members. Thereafter, Roberts appealed the trial court’s actions.

In brief Roberts, through able counsel who has provided this court with an excellent brief, presents four issues:

(1) Whether the trial court erred in determining that there was evidence to support the Board’s ruling.

(2) Whether the Board violated Roberts’s due process rights by reopening the hearing in October and by allowing Louisiana Land and Exploration to intervene in the hearing.

(3) Whether the Board encroached upon the legislature by disregarding certain provisions of § 9-17-12, Ala.Code (1975).

(4) Whether the trial court erred in granting summary judgment to the Board on Roberts’s claim of due process violations. 42 U.S.C. § 1983.

I

Under § 9-17-15, Ala.Code (1975), orders of the Board are presumed to be prima facie correct. It is the function of the trial court to determine whether there is evidence which supports the Board’s ruling. It is not the function of “appellate courts” to substitute their judgment for findings of fact made by an administrative authority. Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963).

Cases such as the one at bar are by necessity very complex. The issues are very technical and call for expert testimony from people that specialize in the areas of geology, mining and drilling. Suffice it to say that expert testimony was offered that indicated that Roberts’s land was not underlain by hydrocarbons and that Big Es-cambia Creek Field wells were not draining off hydrocarbons from Roberts’s land.

According to one set of experts, the gas reservoir did not extend onto Roberts’s land to any great extent and where it did extend, the gas was in contact with water and could not be commercially productive. The Board found that these experts were more convincing and ruled accordingly. It is not the function of the trial court, nor is it this court’s duty, .to substitute its judgment for that of the Board’s. Barnes v. State, supra.

II

Roberts contends on appeal that the Board violated his due process rights by reopening the hearing in October, 1981, to hear further evidence. We do not agree.

Following the second hearing in September, the Board took the matter “under advisement.” Thereafter, the Board notified both parties that the Board would hold a third hearing at which it would hear additional evidence. The Board then entered an order continuing the matter until October.

Section 9-17-7(f) requires that the Board “shall take such action with regard to the subject matter [of the hearing] as it may deem appropriate” within thirty days of the conclusion of the hearing.

In addition, Rule L-23 of the Board’s Rules and Regulations states that “the Board shall promptly take such action as it may deem appropriate concerning the subject matter being considered by the Board, such action to be evidenced by oral order read or stated into the record granting, denying, continuing, amending, or other appropriate action.... ” (Emphasis supplied.)

In addition, certain other rules of the Board allow the Board to continue a hearing without new notice if it is done at that hearing. In this case, the Board provided new notice to the parties that a third hearing would be held.

From the above it is evident that the Board had not entered a final order and that it followed the proper procedure for continuing the hearing by notifying both parties within thirty days of the August hearing.

The supreme court has held that the requirements of due process in the context of administrative proceedings are: an opportunity to be heard; to be represented by counsel; to have fair procedures; and to know on what evidence an order is based along with the opportunity to confront that evidence. Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala.1977). Furthermore, an appellate court should view the procedural aspects of proceedings before an administrative body with less strictness than when dealing with procedures in a lower court. Ferguson v. Hamrick, 388 So.2d 981 (Ala.1980).

Keeping all of the above in mind, this court is satisfied that Roberts’s due process rights were not injured by holding the third hearing.

Regarding the intervention of Louisiana Land and Exploration, § 9-17-7 provides that any person having an interest in the subject matter of the Board’s hearing shall be entitled to be heard. Louisiana Land and Exploration Company is a lessee in the Escambia Field and in view of § 9-17-7, intervention was a matter of right in that Louisiana Land and Exploration Company had an interest in the matter before the Board. In any event, this court is not convinced that Louisiana Land and Exploration Company’s intervention was detrimental to Roberts’s case by way of unfair surprise or otherwise.

HI

Roberts next contends that the Board encroached upon the legislature by refusing to follow § 9-17-12 regarding enlarging existing gas units and applying their own standards. Put another way, Roberts contends that the Board refuses to enlarge an existing unit beyond limits that they themselves have defined and such action of the Board violates state due process requirements.

This court finds no evidence that the Board refused to follow § 9-17-12 and applied their own standards.

Section 9-17-12 allows the Board to expand existing drilling units to certain limits if it finds that the land to be included is, among other things, being drained of underlying hydrocarbons. The Board in this instance found that Roberts’s land was not underlain with hydrocarbons; therefore, they declined to enlarge the Escambia unit. This court fails to see how the Board could have done otherwise in view of the requirements of § 9-17-12.

We are not persuaded by Roberts’s argument that the Board has set “fixed” limits on the size of fields and refuses to enlarge them. There is nothing to indicate that the Board did not rely on the geological evidence in determining not to enlarge Big Escambia Creek Field. See Kent Corp. v. N.L.R.B., 530 F.2d 612 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976).

IV

In view of the above, this court finds that the trial court did not err in granting summary judgment to the Board on Roberts’s claim of federal constitutional violations.

Roberts’s argument in this respect is based essentially on the same set of facts as those discussed above. In connection with this second claim, Roberts sought to go outside the record and depose the individual members of the Board as to their reasoning behind their refusal to enlarge Big Escam-bia Creek Field to include Roberts’s land.

In view of the above, the evidence clearly supports the trial court’s actions. No error can be found in failing to allow depositions to be taken. The trial court was not in error in granting summary judgment in the instant case where both claims rested on the same operative facts.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.

BRADLEY, J., recuses himself.

      . All appellants, being in the same situation, will be addressed simply in the singular as Roberts.


text:
    STATE of Alabama, DEPARTMENT OF REVENUE v. Cleo D. TEAGUE, d/b/a Indian Hills Golf Course.
    Civ. 3640.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied Aug. 10, 1983.
    Certiorari Denied Dee. 2, 1983 Alabama Supreme Court 82-1127.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb and Melissa C. Bowen, Asst. Attys. Gen., for appellant.
    Wesley M. Lavender, Decatur, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a tax ease.

Mr. Teague individually owns and operates a golf course which is open to the general public. He charges people a greens fee before they may play golf upon his course. The Department of Revenue of the State of Alabama (department) made final assessments against Mr. Teague for gross receipts taxes upon such greens fees. After a circuit court trial, a judgment was entered which held that a greens fee is not taxable under section 40-23-2, Code 1975, and that such code section is unconstitutional. The State has appealed.

Those portions of the code section which are in controversy are as follows:

“There is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows:
“(2) Upon every person, firm or corporation engaged or continuing within this state in the business of conducting or operating places of amusement or entertainment, billiard and pool rooms, bowling alleys, amusement devices, musical devices, theaters, opera houses, moving picture shows, vaudevilles, amusement parks, athletic contests, including wrestling matches, prize fights, boxing and wrestling exhibitions, football and baseball games, (including athletic contests, conducted by or under the auspices of any educational institution within this state, or any athletic association thereof, or other association whether such institution or association be a denominational, a state, or county, or a municipal institution, or association or a state, county, or city school, or other institution, association or school), skating rinks, race tracks, golf courses, or any other place at which any exhibition, display, amusement or entertainment is offered to the public or place or places where an admission fee is charged, including public bathing places, public dance halls of every kind and description within the state of Alabama, an amount equal to four percent of the gross receipts of any such business.”

§ 40-23-2, Code 1975.

Two issues are presented for our decision.

1.

With regard to privately owned golf courses whereupon the members of the general public may play golf upon payment of a greens fee, does the imposition of the gross receipts tax by section 40-23-2 upon such golf courses violate the equal protection clause of the United States Constitution?

Mr. Teague contends that, in order for his gross receipts to be validly taxed under the code section, all golf courses should be similarly taxed.

The legislature established two classes as to golf courses. The code section repeatedly uses the word “public.” The intent of the legislature was to tax only those golf courses which offer their facilities to the general public. Thus, private golf courses such as those maintained by private membership country clubs are not subject to the gross receipts tax on greens fees. Governmental golf courses have been declared to be exempt from the statute. City of Anniston v. State, 265 Ala. 303, 91 So.2d 211 (1956). However, all other similar privately owned businesses, such as skating rinks and bowling alleys, which are open to the public as places of amusement are in the same category or classification as Mr. Teague’s golf course and are equally taxed under that code section.

In Haden v. Watson, 270 Ala. 277, 117 So.2d 694 (1960), the law governing different legislative classifications for taxation purposes was summarized as follows:

“The legislature has the broadest range and powers in establishing classifications or subclassifications for the purpose of license and excise taxes. State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843. Further the legislature in classifying subjects for taxation is not required to state the grounds for classification. State v. Pure Oil Co., supra. Legislative classifications in tax matters are presumably valid, the burden being on the challenger to prove that such a classification or subclassification does not rest on a reasonable basis and such statutes are not to be deemed unconstitutional or invalid if any state of facts can be conceived which would support the subject of the tax. Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So.2d 13; Johnson v. State ex rel. City of Birmingham, 245 Ala. 499, 17 So.2d 662; State v. Pure Oil Co., supra.
“Furthermore particular privileges, occupations, classes or subclasses of businesses may be licensed and taxed and other privileges, occupations or businesses need not be included and can be entirely exempt therefrom. Henry v. Shevinsky, 239 Ala. 293, 195 So. 222; State v. Pure Oil Co., supra.
“In other words the classification of occupations and privileges for taxation is largely a matter of legislative discretion, and it will not be interfered with by the courts as being in violation of the rules of equality and uniformity unless it is palpably arbitrary and unreasonable and unless there is no conceivable state of facts which would support it. State v. Pure Oil Co., supra; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402, 110 A.L.R. 1479.”

Here, we do not know all of the reasons for the different taxation categories which were established by the legislature for privately owned golf courses; however, such information is not essential. It is within the scope of the legislative authority to make classifications in tax matters, and they possess great discretion and much freedom in doing so. “Unless clearly and patently arbitrary, oppressive and capricious on its face, such classification is not subject to judicial review. Mere inequality under such classification is not sufficient to invalidate a statute.” State v. Spann, 270 Ala. 396, 400, 118 So.2d 740, 743 (1960).

Here, the legislature did not abuse its discretion. Code section 40-23-2 is constitutional.

2.

The last issue is whether greens fees charged by a privately owned public golf course are subject to the gross receipts tax under the provisions of said code section.

In section 40-23-2(2), after the words “athletic contests,” activities are then defined and detailed which are included as being athletic contests .until the words “skating rinks” are reached. At that point the statute then resumes its list of those businesses, including “golf courses,” which are subject to the gross receipts tax of four percent.

A golf course is expressly named as a business which must pay the gross receipts tax. Included as one of the definitions of “gross receipts” is “all receipts actual and accrued, by reason of any business engaged in.” § 40-23-l(a)(8), Code 1975. Here, the greens fees collected by Mr. Teag-ue’s golf course constituted an actual receipt of that business and they were taxable as a part of his gross receipts.

The trial court should have held the final tax assessments made against Mr. Teague by the department to be valid.

We must reverse and remand this case for the entry of a judgment by the learned circuit court which is not contra to this decision.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Nathan RALEY and Nell Raley v. ROYAL INSURANCE COMPANY, LTD., et al.
    Civ. 3675-X.
    Court of Civil Appeals of Alabama.
    July 27, 1983.
    Rehearing Denied Aug. 24, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 82-1200.

      Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellants.
    Stanley A. Cash of Huie, Fernambucq & Stewart, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from the circuit court’s order of remittitur, or in the alternative, new trial, under Rule 59(f), A.R.Civ.P. The complaint below was for conversion.

The facts of this case were set out in Raley v. Royal Insurance Co., 386 So.2d 742 (Ala.1980), wherein the supreme court reversed the trial court’s grant of summary judgment and remanded the case for trial on the merits. The jury at trial found in favor of the Raleys in the amount of $15,-000. Royal moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The court ordered written remittitur of damages over $5,000 or new trial would be granted. The Raleys appealed the order of remittitur. Royal Insurance cross appeals the verdict and judgment and the denial of its motion for judgment notwithstanding the verdict.

APPEAL

The decision to grant or refuse a motion for new trial is within the sound discretion of the trial court. Hill v. Cherry, 379 So.2d 590 (Ala.1980). “[T]he exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error. (Citation omitted.)” 379 So.2d at 592.

In its order of remittitur the trial court found the Raleys had failed to prove any actual damages; this finding is claimed as error on appeal. Chief Justice Torbert, in his special concurrence in Raley, supra, set out the rule on the measure of damages for conversion, quoting from Ewing v. Blount, 20 Ala. 694, 695-696 (1852):

“The rule is settled by the decisions of this court, that the measure of damages in actions of trover is the value of the goods at the time of the conversion, or at any time subsequent thereto and before the trial, with interest on such value.
“This rule we think a correct one, and we feel no disposition to depart from it; but it is only applicable to those cases where the owner had not regained possession of the goods before the trial. If the owner has regained the possession of the goods, he cannot recover their value, and is only entitled to the damages he has sustained by the wrongful deprivation of his possession.... ”

386 So.2d at 745. In view of the stated rule, and in light of the evidence, we find the trial court correct in holding that the Raleys were limited to recovery of a nominal sum as a compensatory damage award. See Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523, cert. denied, 291 Ala. 803, 279 So.2d 526 (1973).

The court further found that the jury’s award of $15,000 constituted punitive damages, and that such an amount was unjust. In view of the facts of the case, the court ordered the judgment reduced to $5,000. The Raleys contend this order was error.

“Because punitive damages are left to the discretion of the jury, with no standard for the admeasurement of them, a remittitur or new trial should not be ordered merely because in the opinion of the court the jury gave too much.” Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809, 814 (Ala.1980); Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958). “[B]ut where the damages allowed are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case the court may interfere and set the verdict aside.... ” Vest v. Gay, 275 Ala. 286, 288, 154 So.2d 297, 298 (1963). A new trial or remittitur may also be ordered on the ground of excessiveness “where the court can clearly see that the verdict has been reached on account of bias, prejudice, corruption, or other improper motive or cause.” Id.

In the instant case the trial judge specifically found that the evidence did not support the verdict and that the jury’s award was unjust. Although the authority to set aside the verdict of the jury for excessiveness should be exercised only with great caution, Vest v. Gay, supra, remittitur should be ordered when justice so requires. See Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981). Moreover, “where the trial court has ordered remittitur and refused to grant a new trial, a favorable presumption of correctness of that action is accorded.” Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289, 295 (1975). The trial court is in a position to observe witnesses and hear testimony, which places it in a better position than this court to determine the propriety of the jury’s verdict. Id. We shall not disturb the court’s finding in the absence of abuse of discretion, and find no such abuse in the present case.

CROSS APPEAL

On cross-appeal, Royal Insurance contends that because the trial court found in its order of remittitur that there were no compensatory damages, it was error to award any punitive damages whatsoever. It is the rule in Alabama that an award of nominal damages may support an additional award of punitive damages. Walker v. Cleary Petroleum Corp., 421 So.2d 85 (Ala.1982). Punitive damages may be awarded in an action for conversion when the evidence discloses that the conversion was committed “in known violation of law and of owners’ rights, with circumstances of insult, or contumely, or malice.” Carolina Casualty Insurance Co. v. Tisdale, 46 Ala. App. 50, 57, 237 So.2d 855, 860, cert. denied, 286 Ala. 741, 237 So.2d 861 (1970). When such evidence is presented to the jury, punitive damages are within its discretion. Id. Sufficient evidence on this issue exists in the record to have presented a question for the jury.

Royal Insurance also contends that the jury’s verdict was an assessment of compensatory, not punitive, damages, and is unsupported by any proof of actual damages. That contention is based upon the language of the jury’s verdict. “We, the jury, find for the plaintiffs and assess their damages at $15,000.” The contention is without merit. The jury merely used the language the trial court instructed it to use. The nature of the damages awarded cannot be inferred therefrom.

Royal Insurance also contends that no recovery should have been granted the Raleys because there was no evidence that a proper demand was made for return of the instruments in question. In the words of Chief Justice Torbert, “The record is replete with evidence, including letters and depositions, which raises a genuine issue of fact whether the Raleys demanded from Royal Insurance the return of their mortgage and note marked ‘paid.’ ” 386 So.2d at 745. The jury made a determination of that issue. That determination was strengthened by denial of the motion JNOV. The decision of the jury on a question of fact will not be disturbed on appeal because this court “indulges all favorable presumptions as to the correctness of the jury’s conclusion and will not disturb it unless it is plainly erroneous or manifestly unjust.” Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899, 903 (Ala.1979), appeal after remand, 395 So.2d 475 (Ala.1981).

We affirm the judgment of the trial court in all respects.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Clifford W. CLEVELAND, and Clifford W. Cleveland, P.C., individually and severally, v. Patricia B. WILLIAMS.
    Civ. 3699.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Sept. 7, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 82-1272.

      Clifford W. Cleveland, Prattville, pro se.
    Edward W. Drinkard, Prattville, for ap-pellee.
   BRADLEY, Judge.

This appeal marks the second time that issues connected with this case have been before this court and is an attack on the final judgment of the Autauga County Circuit Court rendered on January 19, 1983 following remand from this court. For this reason we shall recount only those facts which are pertinent to the issues at hand. Readers who desire greater detail are referred to our opinion of Williams v. Williams, 424 So.2d 638 (Ala.Civ.App.1982).

Patricia B. Williams and Ocie M. Williams were divorced by a decree of the Autauga Circuit Court. Prior to this time the couple’s marital home was destroyed by fire on May 13, 1981. The husband retained the law firm of Clifford W. Cleveland, P.C., to represent him in connection with the divorce action and also entered into a contingent fee arrangement in the amount of one-third of the gross proceeds with the firm under which it was to recover fire insurance proceeds from Armed Forces Cooperative Insuring Association.

Before the divorce trial the insurance company paid $94,713.33 to the law firm of Clifford W. Cleveland, P.C., and at trial Cleveland promised to obtain necessary endorsements and distribute the funds in accordance with the court’s directions. The court, in its November 16, 1981 decree, ordered that lienholders be paid and that the law firm of Clifford W. Cleveland, P.C., receive a fee of $16,413.95. The remaining balance of $9,757.61 was to be split between Patricia B. Williams and Ocie M. Williams as a marital asset.

Thereafter, Ms. Williams timely appealed to this court, claiming that legal fees due to Clifford W. Cleveland should not be charged against her share of the insurance proceeds. We agreed that since she had not retained the law firm, she was not liable for any of the legal fees under the contingent fee contract signed by her husband. On remand the Autauga Circuit Court stated that:

“[I]t is the judgment and order of this Court that the said fire insurance proceeds in the amount of $26,171.56 be divided equally between the husband and wife ... and that the wife be and she is hereby awarded the specific sum of $13,-085.78

From this decision Clifford W. Cleveland has appealed to this court.

Cleveland first argues that the trial court incorrectly interpreted the instructions of this court in rendering its decree after remand. This argument is wholly without merit. In our decision of Williams v. Williams, supra, we stated:

“In short, [Ms Williams] cannot be required in any manner to contribute towards any such fee in any amount from her part of the insurance proceeds or from any other source. The payment of any fee to the husband’s attorneys concerning the insurance proceeds must come entirely from the husband without compulsory contribution in any manner or degree from the wife.”

In those sections of the trial court’s decree after remand quoted above, it was merely complying with our instructions to see that the wife’s share of the insurance proceeds was not made available to pay the husband’s attorney’s fees.

Appellant Cleveland next argues that the trial court, in its decree after remand, created a new cause of action and that the hearing violated due process standards because notice was not given to him. We note that the brief hearing held by the trial court was conducted concerning issues which were included in the original decree. Thus, since the attorney’s fee issue was included in the original decree and was instituted by a motion from Cleveland, he cannot now argue that the hearing after remand concerned a new cause of action. We also note that attorneys Alfred Q. Booth and Clifford W. Cleveland appeared at the hearing and stated the firm’s position in regard to the attorney’s fee. Thus, appellant Cleveland cannot argue that he was unaware of the nature of the hearing.

Cleveland finally argues that the trial court improperly made him personally liable for the $8,206.97 due to Patricia B. Williams. He argues that he is shielded from such liability because his law firm was operated as a professional corporation. The thrust of his position indicates that Patricia B. Williams was a judgment creditor of his law firm; and because he practiced as a professional corporation, he is shielded from liability as a stockholder.

The Alabama Professional Corporations Act allows attorneys and other professionals to incorporate and enjoy the limited liability feature of the corporate form of business enterprise. However, section 10-4-236, Code 1975, states that the corporate form does not protect the professional in rendering service to a client. In other instances the normal rules of limited liability apply. Section 10-2A-43(a), Code 1975, provides:

“A holder of or subscriber to shares of a corporation shall be under no obligation to the corporation or its creditors with respect to such shares other than the obligation to pay to the corporation the full consideration for which such shares were issued or to be issued.”

In the instant action Patricia B. Williams stood as a judgment creditor to the professional corporation of Clifford W. Cleveland. The check from the insurance company came into the hands of the professional corporation and was not handled by Clifford W. Cleveland in his individual capacity. Thus, section 10-4-236, Code 1975, protects him from personal liability, and the judgment must be reversed.

This position gains more strength from the fact that the record before us fails to show any circumstances under which the corporate veil could be pierced and the shareholder held personally liable. Such a situation may subsequently occur; however, as we have stated, there is no evidence before us to show misuse or abuse of the corporate form. See Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975).

For the foregoing reasons the decision of the trial court which held Clifford W. Cleveland personally liable is reversed.

REVERSED AND REMANDED.

HOLMES, J., concurs.

WRIGHT, P.J., recuses himself.