M & J Materials, Inc. v. Stanford D. Isbell
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REL: 12/06/2013
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2014
_________________________
2080880
_________________________
M & J Materials, Inc.
v.
Stanford D. Isbell
Appeal from Jefferson Circuit Court
(CV-07-762)
On Remand from the Alabama Supreme Court
PER CURIAM.
This case involves a retaliatory-discharge claim asserted
against M & J Materials, Inc. ("the employer"), by Stanford D.
Isbell ("the employee").
This court previously reversed the
trial court's judgment on the jury's verdict in favor of the
employee, holding that the employee had failed to make a prima
2080880
facie case of retaliatory discharge. M & J Materials, Inc. v.
Isbell, [Ms. 2080880, May 7, 2010] ___ So. 3d ___ (Ala. Civ.
App. 2010).
The employee filed a petition for certiorari
review, and our supreme court reversed the judgment of this
court has been reversed by our supreme court.
See Ex parte
Isbell, [Ms. 1091163, June 28, 2013] ___ So. 3d ___ (Ala.
2013). In its opinion, the supreme court noted the following:
"Our reversal of the judgment of the Court of
Civil Appeals on the issue of [the employee]'s prima
facie case for retaliatory discharge revives two
issues [the employer] argued in its appeal of the
jury verdict that the Court of Civil Appeals did not
reach. In its appeal, [the employer] contended that
the trial court erred when it reinstructed the jury
after the jury initially returned an inconsistent
verdict rather than ordering a new trial. It also
contended that the punitive-damages verdict of
$70,000 was excessive under the factors for
evaluating the excessiveness of such an award
provided in BMW of North America, Inc. v. Gore, 517
U.S. 559 (1996), Hammond v. City of Gadsden, 493 So.
2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby,
539 So. 2d 218 (Ala. 1989). Because the judgment of
the
Court
of
Civil
Appeals
pretermitted
consideration of those issues, we remand the case to
the Court of Civil Appeals for consideration of
those issues. See Ex parte Wood, 69 So. 3d [166] at
172 [(Ala. 2010)]."
___ So. 3d at ___.
This court, in conformity with the mandate
of the supreme court, will now address those issues.
Reinstruction
The trial court, in its order denying the employer's
renewed motion for a judgment as a matter of law ("JML"),
stated as follows:
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"By polling the jury upon announcement of its
first verdict, the Court did not 'accept' the jury's
flawed verdict. The Court certainly did not accept
the verdict as final. This Court is satisfied that
the first verdict was an inconsistent verdict in
that the jury found no compensatory damages but
awarded punitive damages; therefore, that verdict
failed to conform to Alabama law.
Further, in
recharging the jury on compensatory and punitive
damages, the Court did not unduly emphasize one over
the other, or[ the employee over the employer].
And, this Court was concerned over the possibility
of having to try the entire case, with all ten
witnesses and twelve exhibits, again.
"Based on the authority of Hanners v. Balfour
Guthrie, Inc., 589 So. 2d 684 (Ala. 1991), [the
employer's request] to award it a new trial because
the Court instructed the jury to deliberate again is
DENIED."
The trial court's reasoning is sound, notwithstanding the
employer's insistence that that court erred in failing to
order a new trial in response to the initial product of the
jury's efforts to reach a verdict.
The common thread that
unites all the authorities cited by the employer in its
appellate brief addressing this issue1 is that, in each case
cited, there is no indication that the pertinent trial court
rejected the inconsistent verdict, as the trial court did in
this case in response to the jury's awarding only punitive
1
See Davis v. Hanson Aggregates Southeast, Inc., 952 So.
2d 330 (Ala. 2006); Life Ins. Co. of Georgia v. Smith, 719 So.
2d 797 (Ala. 1998); Alabama Power Co. v. Epperson, 585 So. 2d
919 (Ala. 1991); and Monteleone v. Trail Pontiac, Inc., 395
So. 2d 1003 (Ala. Civ. App. 1980).
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damages; rather, it instead appears that, in each case cited,
a judgment was entered on the inconsistent verdict.
In
contrast, in Hanners v. Balfour Guthrie, Inc., 589 So. 2d 684
(Ala. 1991), upon which the trial court relied in determining
that it had not erred in reinstructing the jury, our supreme
court expressed approval of the very action taken by the trial
court
here,
i.e.,
directing
a
jury
that
had
reached
an
inconsistent verdict to resolve the inconsistency but not
instructing the jury to resolve it in favor of any particular
party:
"[T]he record shows that the jury first returned a
verdict for [the plaintiff], but failed to award him
any damages. [The plaintiff] promptly moved for a
new
trial,
arguing
that
the
verdict
was
inconsistent.
Instead of granting [that] motion,
however, the trial court, with the consent of both
parties, recharged the jurors, telling them, in
part, to either find for [the plaintiff] and award
him damages, or to find for [the defendant]. ...
"We can find no error on the trial court's part
in resubmitting this case to the jury.
By
recharging the jury, which had already heard all of
the evidence, and affording it the opportunity to
return a verdict in conformity with the law, the
trial court furthered the goal of obtaining the most
efficient use of our judicial system."
589 So. 2d at 686; see also Robert P. Stapp Mach. Co. v.
Russell, 277 Ala. 84, 86-87, 167 So. 2d 167, 169 (1964)
(noting that a verdict must have not only the approval of the
jury, but also the approval of the trial judge; that a verdict
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2080880
is not a finding by the jury until such judicial approval is
given; and that, as a general rule, a jury has the right and
power upon resubmission to change its verdict at any time
before the verdict has been accepted by the trial court). The
trial court's denial of the employer's new-trial request based
upon the reinstruction was, therefore, proper.
Excessiveness of the punitive-damages award
As we noted in our prior opinion, the employer asserted
in its postjudgment motion that the punitive-damages award was
excessive under common-law principles.2 Apart from citing the
need for review of the punitive-damages award based upon the
holdings of three leading cases concerning the propriety of
punitive-damages awards at common law (BMW of North America,
Inc. v. Gore, 517 U.S. 559 (1996), Hammond v. City of Gadsden,
493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539
So.
2d
218
(Ala.
1989)),
the
employer
made
no
other
substantive contentions in the trial court regarding the
punitive-damages award; the employer averred generally that
"[t]he amount of punitive damages awarded should not exceed
2
The employer neither raised in the trial court nor argued
in its appellate brief the potential operation of any
statutory cap on punitive damages codified at Ala. Code 1975,
§ 6-11-21, including the cap applicable to "small business"
entities.
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... a ratio of 3:1 or 4:1 [to compensatory damages] at most as
required by Alabama law."
The employer's motion did not
request a hearing pursuant to Rule 59(g), Ala. R. Civ. P., and
the trial court denied the postjudgment motion in its entirety
after the expiration of a scheduled period for briefing set by
that court; the employer raises no issue regarding the absence
of a hearing, which is not mandated in the absence of a
request therefor, see Phillips v. Randolph, 828 So. 2d 269,
279 (Ala. 2002).
With
respect
punitive-damages
to
the
award,
permissibility
the
trial
court
of
the
noted
$70,000
in
its
postjudgment order the factors set forth in Gore, i.e., "(1)
the reprehensibility of the defendant's conduct; (2) the ratio
between the award of punitive and compensatory damages; and
(3) a comparison of the award of punitive damages to the civil
or criminal penalties that could be imposed for comparable
misconduct." Montgomery Coca-Cola Bottling Co. v. Golson, 725
So. 2d 996, 1000 (Ala. Civ. App. 1998).
In considering those
factors, the trial court stated in its postjudgment order (1)
that the reprehensibility of the employer's misconduct could
be inferred from "the length of time between the gun incident
and the investigation/statement gathering," "the length of
time between the investigation/statement gathering and the
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2080880
submitting
solicitation
of
a
of
police
informal
[incident]
advice
from
report,"
an
and
off-duty
the
police
officer before the employee's employment was terminated; (2)
that the 14:1 ratio between punitive damages and compensatory
damages
was
not
excessive
because
of
"the
gravity
of
wrongfully depriving [the employee] of ... a job he had held
for
several
years,
the
chilling
effect
of
retaliatory
discharges, [and] the low amount of compensatory damages
awarded to [the employee]"; and (3) that no other civil or
criminal penalties existed regarding retaliatory discharges
from employment
proscribed by Ala. Code 1975, § 25-5-11.1,
that would render meaningful a comparison of the punitivedamages
award
to
other
permissible
civil
or
criminal
sanctions.
In discussing the three Gore factors in its appellate
brief as they pertain to its insistence that the punitivedamages award should be ordered remitted to $15,000, the
employer concedes that no other civil or criminal penalties
exist in the wrongful-termination setting, a fact that Alabama
caselaw has also recognized.
See Mercy Med. v. Gray, 864 So.
2d 354, 368-69 (Ala. Civ. App. 2002) (quoting AutoZone, Inc.
v. Leonard, 812 So. 2d 1179, 1188 (Ala. 2001)).
Secondly, as
to reprehensibility, the employer flatly asserts that the
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2080880
employee admitted to having brought a gun into the employer's
plant and insists that the employer "acted appropriately" in
discharging the employee from his employment –– an argument
that simply cannot be credited after the supreme court's
binding assessment of the correctness of the trial court's
judgment entered on the jury's verdict finding against the
employer on the retaliatory-discharge issue.
In the context of the "ratio" factor specified in Gore,
the employer, citing dicta in Flint Construction Co. v. Hall,
904 So. 2d 236, 254 (Ala. 2004) (which involved a judgment
containing a punitive-damages award that was less than the
corresponding
writings
of
compensatory-damages
two
former
justices
award),
of
our
and
supreme
special
court,3
contends for the existence of, and the application of, a
"single-digit"
damages.
ratio
limitation
upon
awards
of
punitive
The contention made by the employer finds firmer
precedential footing in Justice Kennedy's analysis of Gore's
ratio factor in State Farm Mutual Automobile Insurance Co. v.
Campbell, 538 U.S. 408 (2003), in which, writing for the
Court, Justice Kennedy noted that, "in practice, few awards
3
See Orkin Exterminating Co. v. Jeter, 832 So. 2d 25, 43
(Ala. 2001) (Houston, J., concurring specially), and Reliable
Mech., Inc. v. Integrated Constr. Servs., Inc., 781 So. 2d
207, 207 (Ala. 2000) (See, J., dissenting).
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exceeding
a
single-digit
ratio
between
punitive
and
compensatory damages, to a significant degree, will satisfy
due
process"
and
that,
more
specifically,
any
ratio
of
punitive damages to compensatory damages amounting to more
than four to one approaches "the line of constitutional
impropriety."
538 U.S. at 425.
Such statements do, and should, give this court pause in
affirming the punitive-damages component of the trial court's
judgment, which is 14 times the compensatory-damages award.
Unlike in Tanner v. Ebole, 88 So. 3d 856 (Ala. Civ. App.
2011), or Engineered Cooling Services, Inc. v. Star Service,
Inc. of Mobile, 108 So. 3d 1022 (Ala. Civ. App. 2012), two
cases in which larger ratios were deemed permissible because
of the presence of a nominal compensatory-damages award, the
jury
in
this
case
determined
compensate the employee.
that
$5,000
would
fully
Although the termination of the
employee from his employment was, as the employee states, an
intentional act, we are not confronted in this case with a
situation in which "'the injury is hard to detect or the
monetary value of noneconomic harm might have been difficult
to determine.'"
517 U.S. at 582).
State Farm, 538 U.S. at 425 (quoting Gore,
We are thus aware of no factor that would
take this case out of the general rule, set forth by the
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United States Supreme Court, that a punitive-damages award
exceeding four times the amount of compensatory damages is
outside the limits of due process.
Based upon the foregoing facts and authorities, the
judgment of the trial court is affirmed, on the condition that
the
employee
file
with
this
court,
within
28
days,
an
acceptance of a remittitur of the punitive damages assessed
against the employer from $70,000 to $20,000; otherwise, the
judgment against the employer will be reversed and the case
remanded for a new trial.
See Ala. Code 1975, § 12–22–71.
AFFIRMED CONDITIONALLY.
Pittman and Thomas, JJ., concur.
Thompson, P.J., and Moore and Donaldson, JJ., concur in
the result, without writings.
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