On Application for Rehearing
The opinion of December 21, 2012, is withdrawn, and the following is substituted therefor.
Elizabeth and Matthew were formerly married. After Elizabeth had given birth to two children, the parties separated in early fall of 2006, with Elizabeth and the children remaining in the marital home. On November 17, 2006, Matthew, after telephoning Elizabeth over 20 times, arrived at the marital home late at night, apparently in an attempt to reconcile with Elizabeth. According to Elizabeth, Matthew ended up staying all night, at times snorting Adderall that had been prescribed for Elizabeth.
The next day the parties ate breakfast together and traveled to a local shopping center to purchase clothing for the parties' children. After Elizabeth dropped off the parties' older child at her parents' home for an overnight visit, she returned to the marital home where Matthew remained. In the early morning hours of the next day, Elizabeth hid her Adderall, which, Elizabeth testified, infuriated Matthew. According to Elizabeth, Matthew, while in a rage, placed her in a headlock and struck her repeatedly, causing her to bleed. Afterwards, when Matthew realized he had "crossed the line," he told Elizabeth that she would have to do what he said until he could figure out what to do.
Elizabeth testified that Matthew then turned off all the lights, shut the blinds, and ordered Elizabeth to go to the laundry room, where he found a sock and tried to tie it around, or stuff it into, Elizabeth's mouth. Matthew then had Elizabeth crawl to her bedroom closet, where she began to experience anxiety attacks. Matthew gave Elizabeth some prescribed anxiety medication, but her symptoms did not abate. Matthew then instructed Elizabeth to crawl to the bathroom, where he poured cold water over her in an attempt to curb the panic attack. When Elizabeth continued to suffer, Matthew stated that he would take her to the emergency room. At that point, Matthew stripped Elizabeth of her bloody clothes and put clean clothes on her. He then drove Elizabeth to the emergency room, warning her that if she told anyone what had happened he would kill her and reminding her that he had their daughter.
Elizabeth spent several hours in the emergency room, during which time she did not report, in fact she actually denied, any domestic violence. Matthew picked up Elizabeth upon discharge, and they returned to the marital home. Elizabeth testified that, some time later, she seized an opportunity to grab her cellular telephone while Matthew was not looking and she telephoned her mother, who lived nearby, to ask for help. She then returned to the kitchen, where Matthew was about to snort crushed Adderall, and she blew the drugs off the table. Matthew again became enraged, threw her to the
Matthew did not deny that he snorted Adderall, but he denied the other aspects of Elizabeth's account of the events leading up to her injury. As for how Elizabeth hurt her leg, Matthew testified that, while he was in the kitchen, Elizabeth had come up behind him in a rage and they both fell to the floor. According to Matthew, when he tried to pick her up, Elizabeth pulled him down on top of her and began to kick him in the groin, causing him to fall on her. He testified that when he saw Elizabeth's mother getting out her automobile with an upset look on her face, he left because he did not want to confront her. At that time, according to Matthew, he did not know that Elizabeth had broken her leg, but, he said, he later assumed that the break had occurred when he fell on her.
After leaving the marital home, Matthew drove his vehicle through a red light, striking the automobile of an off-duty corrections officer. He later pleaded guilty to a felony in relation to that accident; he also pleaded guilty to misdemeanor domestic violence for his altercation with Elizabeth.
Matthew argues that the trial court erred in precluding him from introducing evidence indicating that Elizabeth had falsely accused her own father of raping her, had falsely accused other of her paramours of abusing her, had been convicted of shoplifting on multiple occasions, and had long abused prescription drugs. Matthew argues that all the foregoing evidence tends to prove that Elizabeth lacked credibility and that the jury should have been allowed to consider that evidence when determining whether Elizabeth's account of the events leading to her injuries was believable. At the outset of the trial, Elizabeth filed a motion in limine seeking to exclude most of the foregoing evidence, pursuant to Rule 403, Ala. R. Evid. ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").
During the trial, Matthew's counsel introduced evidence indicating that, during her hospital stay for her anxiety attack, Elizabeth had denied on an admission form that she was in an abusive relationship or that she feared for her physical safety. Elizabeth admitted that she had lied on that form, explaining that she had only been being "compliant" and further clarifying that she had been embarrassed about her situation, having grown up in a home free of domestic violence and having never been in a prior relationship involving domestic violence. Matthew's counsel then inquired as to whether Elizabeth had ever told anyone that her father had molested her. Elizabeth replied that she had not. When Matthew's counsel attempted to question her on that point further, Elizabeth's counsel objected and the trial court ultimately sustained the objection.
Matthew had earlier proffered the testimony of Julia Ogburn, who had stated that, while on a trip to the Bahamas, Elizabeth had confided in Ogburn that Elizabeth's father had raped Elizabeth, that Ogburn had later confronted Elizabeth's
In Ex parte Loyd, 580 So.2d 1374 (Ala. 1991), our supreme court ruled that a defendant who had been convicted of sodomy had been prejudiced during his trial by not being permitted to introduce evidence indicating that his alleged victim had falsely accused, or had threatened to falsely accuse, others of sexual misconduct. The supreme court ruled that the proffered evidence, in which the victim admitted that she had falsely alleged sexual misconduct against other men in the past, tended to show the victim's "manipulative use of false charges and threats of sexual misconduct to achieve her desires." 580 So.2d at 1376. The court held that the evidence was relevant to whether the defendant had committed the crime of which he was accused or "whether the victim was merely continuing her habit of making threats and false accusations to manipulate persons around her." Id. In Peeples v. State, 681 So.2d 236, 238 (Ala. 1995), our supreme court explained that it had held in Loyd that a victim's prior allegations of sexual abuse that are demonstrated to be false are generally admissible in criminal actions involving similar allegations.
In this civil action, Elizabeth was not attempting to prove that Matthew had sexually assaulted her, so the evidence of the allegedly false rape allegation against her father was not relevant to whether Matthew had committed the acts of which Elizabeth complained or whether Elizabeth was merely continuing a habit of making false accusations of sexual misconduct. The evidence was more in the nature of an attempt to impeach Elizabeth as to prior bad acts. Rule 608(b), Ala. R. Evid., provides, in pertinent part:
Matthew was attempting, for the avowed purpose of attacking the credibility of Elizabeth's domestic-violence allegations against him, to prove that Elizabeth had falsely accused her father of raping her on at least two occasions in the past. Rule 608(b) does not allow that inquiry. See also Gober v. Khalaf, 628 So.2d 416, 417 (Ala.1993) (trial court did not err in excluding testimony of former patient that defendant-physician had committed sexual assault against her because such evidence was impermissible as attempt to impeach physician on a collateral matter in trial in which plaintiff alleged physician had sexually assaulted her). Thus, the trial court did not err in excluding the evidence.
We cannot consider Matthew's argument regarding the exclusion of any evidence relating to Elizabeth's alleged past false domestic-violence complaints. The record indicates that the trial court did not absolutely prohibit the introduction of that evidence, but, rather, indicated that the evidence might be admitted upon further
Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So.2d 175, 177 (Ala.1991) (quoting State v. Askew, 455 So.2d 36, 37 (Ala.Civ.App.1984), citing in turn C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1 (1981)). Although Matthew's counsel several times asserted that Elizabeth had routinely falsely reported her past paramours for domestic violence, Matthew never made a proffer of any evidence to support that allegation. Thus, the issue may not now be raised on appeal.
The trial court granted the motion in limine in regard to Elizabeth's shoplifting convictions from 2008 and 2009, absolutely prohibiting Matthew from introducing any evidence regarding those convictions. Matthew asserts that, because shoplifting is a crime of moral turpitude and dishonesty, the convictions were admissible to show that Elizabeth was not a credible person. Under Rule 609(a)(2), Ala. R. Evid., evidence that any witness has been convicted of a crime shall be admitted if it "involved dishonesty or false statement," regardless of the punishment. However, in Maxwell v. State, 387 So.2d 328 (Ala.Crim.App.1980), the Court of Criminal Appeals noted that, depending on the circumstances, shoplifting may or may not be a crime involving dishonesty or false statement and that, under Rule 609,
The trial court also absolutely prohibited Matthew from introducing evidence of Elizabeth's past illicit drug use. Matthew argues that "[t]he jury was not
Matthew next argues that the trial court erred in refusing to allow him to testify in his own defense. In her case-in-chief, Elizabeth called Matthew as a witness. Matthew's counsel asked him one question and then reserved the right to call Matthew again during his case-in-chief. However, Matthew was not called as a witness before the trial court determined on the penultimate day of the trial that the parties had "essentially rested" their respective cases, subject to one additional witness being called. On the morning of the last day of the trial, the following exchange took place outside the presence of the jury:
In his brief on appeal, Matthew makes a seven-sentence argument in support of reversing the judgment on the ground that the trial court refused to permit him to testify. That argument contains not one citation to authority, although it alleges that Matthew's due-process rights were violated. As noted above, this court is not required to conduct legal research for a party or to craft an argument on behalf of a party. Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ.App.1996). Furthermore, it is well settled that the decision whether to reopen a case for further testimony after a party has rested is within the discretion of the trial court. Brooks v. Cox, 285 Ala. 267, 269, 231 So.2d 302, 304 (1970); Mooneyham v. Herring, 204 Ala. 332, 333, 85
Finally, Matthew maintains that the trial court erred in permitting Elizabeth to introduce the testimony of medical experts that had not been disclosed before trial. Originally, the trial court had granted Matthew's motion in limine to exclude those experts from testifying as to their diagnosis and treatment of Elizabeth for complex regional pain syndrome, but, during the trial, the trial court allowed their deposition testimony on that point to be read to the jury. Matthew argues generally that he was prejudiced by that evidence and that the trial court exceeded its discretion in allowing it; however, in his brief to this court, Matthew fails to cite any legal authority governing the admissibility of undisclosed expert testimony. A party's failure to provide a developed legal argument, supported by relevant authority, leaves this court with no issue to review. White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) ("Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.").
Matthew contends that the trial court erred in charging the jury on punitive damages. The trial court instructed the jury, in pertinent part, as follows:
After the jury retired to the jury room, but before their deliberations began, Matthew's counsel objected as follows:
The trial court overruled the objection.
In George H. Lanier Memorial Hospital v. Andrews, 809 So.2d 802, 806 (Ala.2001), our supreme court stated:
In this case, the only objection preserved for our review is that the trial court erroneously instructed the jury that it could find Matthew liable for assault and battery and false imprisonment based on wanton, as opposed to intentional, conduct. Matthew, however, has not cited any legal authority to support his position that those torts require intentional conduct on the part of the defendant. See Rule 28(a)(10), Ala. R.App. P. Furthermore, Matthew does not attempt to argue that point on appeal; rather, he directs his argument against the award of punitive damages, which argument he did not raise before the trial court. See Rule 51, Ala. R. Civ. P. ("No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection.").
The trial court correctly instructed the jury as to the elements of false imprisonment and assault and battery. The trial court further properly charged the jury that it could not award any damages to Elizabeth unless it was reasonably satisfied that she had proven those elements. Given those instructions, the jury could not have been misled into finding Matthew liable for some lesser or other tortious conduct, which, he complained at trial, was possible. Given that Matthew has not preserved any other objection as to the punitive-damages instruction, we find no basis for reversing the judgment on that ground.
Matthew argues that the evidence did not sustain an action for false imprisonment, that the trial court erred in denying his motion for a judgment as a matter of law on that claim, that the trial court erred in instructing the jury as to that claim, and that the judgment should be reversed because the jury's verdict was based, in part, on the false-imprisonment claim. We disagree.
An appellate court "must review the tendencies of the evidence most favorable to the prevailing party and indulge such inferences as the jury was free to draw." Cooper v. Peturis, 384 So.2d 1087, 1088 (Ala.1980). Additionally,
Cessna Aircraft Co. v. Trzcinski, 682 So.2d 17, 19 (Ala.1996) (footnote omitted).
The evidence, when viewed in a light most favorable to the jury's verdict, shows that, although Elizabeth initially was not restrained by Matthew, after she hid her Adderall, Matthew forcibly compelled her to crawl to the laundry room, where he confined and gagged her. Matthew then ordered Elizabeth to her bedroom closet and the bathroom. Thereafter, Matthew coerced Elizabeth into returning to the marital home from the hospital based on threats of violence toward Elizabeth and
False imprisonment consists of the unlawful detention of the person of another for any length of time whereby he or she is deprived of his or her personal liberty. See Ala.Code 1975, § 6-5-170. The jury heard sufficient evidence from which it could have found that Matthew unlawfully detained Elizabeth for various periods during which she was deprived of her personal liberty. Therefore, Matthew was not entitled to a judgment as a matter of law as to that claim, the trial court did not err in charging the jury as to that claim, and the jury verdict was not tainted by any award of compensatory or punitive damages based on that claim. Matthew is simply incorrect in asserting that this case falls within the rule set out in Aspinwall v. Gowens, 405 So.2d 134 (Ala.1981). See Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1257 (Ala.1998) (holding that, under Aspinwall, "when the trial court submits to the jury a `good count' — one that is supported by the evidence — and a `bad count' — one that is not supported by the evidence — and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. In such a case, a judgment entered upon the verdict must be reversed.").
Matthew finally complains that the trial court erred in failing to grant him a new trial on the ground that the jury impermissibly rendered a quotient verdict.
Following the trial, Matthew filed a motion requesting that the trial court preserve documents written by the jurors during their deliberations. Acting on that motion, the trial court recovered five different notes from the jury room that it provided to the parties. After reviewing the notes, Matthew supplemented his previously filed motion for a new trial to include the notes. In his motion for a new trial, Matthew argued that the judgment should be set aside "because it is the result of a ... quotient verdict."
On appeal, Matthew argues that one of the jury notes, which we refer to as "jury note 1," indicates that the jury assessed damages by totaling their individual figures and dividing by 11.
According to Matthew, the figures in the left-hand column average 100, shorthand for $100,000 in compensatory damages, and the figures in the right-hand column average 115.90, shorthand for $115,000 in punitive damages. Matthew argues that jury note 1 indicates that the jury "clear[ly] ... adjusted" the compensatory-damages award of $100,000 downward to $75,000 and, also just as obviously, adjusted the punitive-damages award upward from $115,000 to $125,000. According to Matthew, as a result, the jury reached a verdict totaling $200,000, which approximates the original determination of $215,000.
Matthew points out that, under Alabama law, a presumption arises that a jury used the quotient process to obtain a verdict "where data found in the jury room, and appearing to be the work of the jury, produces a quotient substantially the same as the verdict rendered." Harris, 288 Ala. at 372, 261 So.2d at 45-46.
Harris, 288 Ala. at 372, 261 So.2d at 45 (citing International Agric. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549 (1913), and George's Rest. v. Dukes, 216 Ala. 239, 113 So. 53 (1927)). Matthew contends that jury note 1 raises a presumption that the jury rendered an invalid quotient verdict that, he says, Elizabeth failed to rebut because she did not present any juror affidavits or other evidence to prove that, in fact, the jury had not agreed beforehand to be bound by their quotient.
In rejecting that argument, the trial court decided either (1) that Matthew did not present sufficient evidence to raise the presumption that the jury rendered a quotient verdict or (2) that Elizabeth had rebutted that presumption. On appeal, this court must presume that the trial court correctly denied the new-trial motion, and we may reverse only if the record shows that the trial court clearly committed legal error prejudicial to Matthew's rights. See Ford Motor Co. v. Duckett, 70 So.3d 1177, 1181 (Ala.2011).
Assuming that jury note 1 reflects an averaging of the jurors' individual damages assessments, or the use of the quotient process, it remains that the trial court reasonably could have concluded that the ultimate verdict did not substantially approximate the quotient. Matthew essentially argues that the jury reached a quotient for compensatory damages and reduced it by $25,000, and then reached a quotient for punitive damages and increased it by $10,000. He also maintains that those "adjustments" produced an aggregate award of $15,000 less than the total quotient in jury note 1. Given such large deviations, the trial court reasonably could have decided that the verdict materially varied from the quotient. Although Alabama cases recognize that a quotient verdict may still be presumed despite a minor deviation between the quotient and the verdict, see Harris, 288 Ala. at 373, 261 So.2d at 46, no Alabama case has ever considered discrepancies as large as $10,000 and $25,000 to indicate mere mathematical adjustments, or "rounding off," to an agreed-upon quotient, even in relation
Moreover, in deciding whether the jury reached a quotient verdict, the trial court did not limit its inquiry solely to a consideration of the probative value of jury note 1. The trial court also considered at least one other jury note, which we refer to as "jury note 4." That jury note contains the following column:
To the left of that column, the following appears:
Assuming those figures indicate the overall dollar amount the jury was considering awarding, the quotient was either $192,727 or $194,545,
Based solely on the differing contents of jury note 1 and jury note 4, the trial court reasonably could have found that the jury did not predetermine to bind themselves to render a verdict based on a quotient. Rather, because those two notes contain several columns with varying numbers and averages, the trial court could have concluded that the jury necessarily continued to debate after obtaining any figure it reached via a quotient. After all, the jury would not have had two different computations if it had previously agreed to be bound by whatever quotient was reached the first time. "If, after obtaining the quotient, the jurors continue to deliberate and thereafter arrive at a different
None of the cases cited by Matthew in his appellate brief contain two differing computations. The existence of competing computations constitutes an additional factor the trial court reasonably could have considered as negating any inference that the jury impermissibly agreed to bind themselves to a quotient verdict. When coupled with the large variation between the quotients upon which Matthew relies and the damages awarded, we cannot agree that the trial court exceeded its discretion to the extent it found that Elizabeth had rebutted any presumption that the jury rendered a quotient verdict.
"[T]here is a strong presumption that jury verdicts are correct, and ordinarily judgments based on verdicts will not be set aside unless they are shown to be plainly erroneous or manifestly unjust," Warner v. Elliot, 573 So.2d at 277 (citing Bussey v. John Deere Co., 531 So.2d 860, 861 (Ala.1988)), and the presumption of correctness attending a jury's verdict is strengthened by the trial court's denial of a motion for a new trial. Id. Because the trial court reasonably could have concluded from the evidence in the record that the jury did not render a quotient verdict, we find no basis for concluding that its judgment was plainly erroneous or manifestly unjust so that it should be reversed.
APPLICATION GRANTED; OPINION OF DECEMBER 21, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
THOMPSON, P.J., and PITTMAN, J., concur.
DONALDSON, J., concurs specially.
THOMAS, J., dissents, with writing.
DONALDSON, Judge, concurring specially.
I concur in the main opinion affirming the judgment of the trial court. I write specially to address two issues regarding the argument of Matthew Morris that a new trial should have been granted based on an allegedly improper quotient jury verdict.
The record does not reflect that either party requested the trial court to instruct the jury that it could not return a quotient verdict pursuant to Rule 51, Ala. R. Civ. P., nor was an objection raised when the jury was not instructed that it could not reach a quotient verdict. Jurors cannot be expected to know that a quotient verdict is improper unless they are so instructed. An example of a quotient-verdict instruction is found in Fidelity & Deposit Co. of Maryland v. Adkins, 222 Ala. 17, 18, 130 So. 552, 553 (1930) (synopsis):
I would hold that a jury verdict is not subject to challenge based on a claim that the jury improperly arrived at a quotient verdict unless the jury was properly instructed on the issue or a proper instruction prohibiting a quotient verdict from being returned was requested pursuant to Rule 51, Ala. R. Civ. P., and refused over a timely objection.
Further, the issue of examining notes, drawings, or other materials created by jurors during trial
THOMAS, Judge, dissenting.
I must respectfully dissent from the affirmance of the judgment entered on the jury verdict in favor of Elizabeth Morris. The majority determines that the trial court could reject an inference that the jury used a quotient verdict because of the varied quotients on the different jury memoranda collected from the jury room. I disagree with the view that the trial court is permitted to weigh the multiple inferences that may arise from the memoranda from the jury room in order to determine whether that memoranda raises the presumption that the jury employed the quotient process. My understanding of the law governing quotient verdicts differs from that of the majority because I believe that if any fair inference, even if it is but one of many possible inferences, indicates that the jury used the quotient
A presumption of a quotient verdict may arise "where data found in the jury room, and appearing to be the work of the jury, produces a quotient substantially the same as the verdict rendered." Security Mut. Fin. Corp. v. Harris, 288 Ala. 369, 372, 261 So.2d 43, 45-46 (1972). A jury may "use the quotient process for the purpose of obtaining a figure that represents an average of the amounts the individual jurors feel should be awarded and that serves merely as a suggestion or basis for further discussion, deliberation, or consideration." Warner v. Elliot, 573 So.2d 275, 277 (Ala. 1990). However, the fact that a verdict is substantially equal to or approximates the quotient reached will result in a presumption that the jury impermissibly relied upon the quotient process in order to return a verdict. See Harris, 288 Ala. at 373, 261 So.2d at 46. As our supreme court explained in Harris:
Id. (quoting Fortson v. Hester, 252 Ala. 143, 147, 39 So.2d 649, 651 (1949)). Put more simply,
Alabama Power Co. v. Thomas, 50 Ala. App. 517, 519, 280 So.2d 778, 780 (Civ. 1973). Notably, variances between the quotient reached and the verdict awarded do not negate the presumption that the verdict is an impermissible quotient verdict. Harris, 288 Ala. at 372, 261 So.2d at 45 ("[P]recise agreement between the quotient found and the verdict returned is not required.... [A] quotient verdict is invalid even if the amount of the verdict is not exactly the same as the quotient obtained by the jury, but is reached by rounding off the quotient to an even number or by making some other slight addition or subtraction.").
The basis for allowing a presumption of a quotient verdict to be created is rooted in the fact that, in Alabama, juror affidavits may not be permitted to impeach a verdict but may be used to uphold a verdict. See, generally, Alabama Power Co. v. Brooks, 479 So.2d 1169, 1178 (Ala.1985) ("Neither testimony nor affidavits of jurors are admissible to impeach their verdicts; however, such evidence is admissible
George's Rest. v. Dukes, 216 Ala. 239, 241, 113 So. 53, 54 (1927). It has long been the law of this state that the party challenging a verdict on the ground that it is a quotient verdict may not use affidavits of jurors to establish that, in fact, the jury used the quotient process. Birmingham Ry. Light & Power Co. v. Moore, 148 Ala. 115, 130, 42 So. 1024, 1030 (1906), overruled on other grounds by Birmingham Ry. Light & Power Co. v. Goldstein, 181 Ala. 517, 532, 61 So. 281, 283 (1913). Thus, the challenger is entitled to a presumption that the verdict was arrived at through a quotient process when the notes of the jury containing the figures it used to calculate the verdict amount provide a basis for a fair inference of the use of such process. Harris, 288 Ala. at 373, 261 So.2d at 46; Fortson, 252 Ala. at 147, 39 So.2d at 651. The presumption may then be rebutted by affidavits from the jurors refuting the inference that a quotient process was used. See City of Dothan v. Hardy, 237 Ala. 603, 608, 188 So. 264, 268 (1939) (affirming the trial court's denial of a motion for new trial when the evidence included affidavits from jurors indicating that the jurors had abandoned the use of the quotient process); Birmingham Ry., Light & Power Co. v. Clemons, 142 Ala. 160, 162, 37 So. 925, 925 (1904) ("It was competent for the plaintiff to prove by the jurors themselves in support of their verdict thus sought to be impugned, that these figures were made and that this process was resorted to without previous agreement that the result should be the verdict....").
In support of his motion for a new trial, Matthew Morris presented several pieces of paper recovered from the jury room. Upon one piece of paper, written in columns, appear the names of the 11 jurors
Although Matthew focuses on the figures on jury note 1 described above, I find the figures on jury note 4, and specifically the quotient reached by totaling those numbers, more compelling. I agree with Matthew that the figures on jury note 4 are shorthand for $150,000 and $220,000; there is simply no other explanation for the numbers $150 and $220 when the verdict ultimately rendered was $200,000. The quotient of the sums on jury note 4 is $194.54; thus, the quotient is shorthand for $194,540. The jury awarded Elizabeth $200,000.
I believe that to determine whether the jury notes, which both parties admit were the work of the jury, raise the presumption that the verdict was a result of the quotient process a court must simply ask if the notes raise, as one possible inference, the concern that the quotient process was used. Notably, the terminology used by our supreme court in Fortson, 252 Ala. at 147, 39 So.2d at 651, does not require that the jury notes or other memoranda prove or establish the use of the quotient process. The jury notes or other memoranda must merely raise "a fair inference" that the quotient process was used by the jury.
Roberts v. Carroll, 377 So.2d 944, 947 (Ala. 1979).
Based on the language employed by our supreme court in Fortson, the party challenging the verdict on the ground that it is a quotient verdict must present jury notes or memoranda that would support a fair inference that the jury used the quotient process. The presumption then arises that the jury agreed in advance to be bound by a quotient process, and the trial court must then "so hold" that the verdict is a quotient verdict, subject to rebuttal by evidence presented in support of the verdict. See Warner, 573 So.2d at 277; Harris, 288 Ala. at 373, 261 So.2d at 46. The jury notes or memoranda, provided that they would support a fair inference that the quotient process was used, themselves trigger the presumption. Warner, 573 So.2d at 277. In Warner, our supreme court stated that "the presumption of a quotient verdict ... was created when [the challenger of the verdict] introduced the scraps of paper from the jury room[, which contained a list of figures added together and divided and a quotient approximately the same as the verdict awarded,] into evidence." Id. Similarly, in Harris, our supreme court stated that the presumption that the verdict was a quotient verdict arose after the challenger of the verdict presented "incriminating papers" containing a quotient corresponding substantially to the verdict and after those papers were "adequately identified" as having been created by the jurors. Harris, 288 Ala. at 373, 261 So.2d at 46. As noted above, our supreme court has explained that the reason for the presumption is rooted in the fact that the challenger of the verdict has the opportunity to present only circumstantial evidence of the use of the quotient process while the proponent of the verdict
Of course, in determining whether the jury notes or memoranda give rise to a fair inference that the quotient process was used, the trial court, and this court on appellate review, must consider whether the quotient on the jury notes or memoranda "corresponds with" or "approximates" the verdict. Alabama law provides that a slight difference between the quotient and the jury's award will not affect the presumption that the verdict was decided by the quotient process. In Harris, our supreme court held that a $42 difference between the quotient and the verdict awarded was not significant and could be explained as the jury's decision "merely [to] round off [the award] to the next hundred." Harris, 288 Ala. at 373, 261 So.2d at 46. Our supreme court has also indicated that a larger discrepancy may still give rise to the presumption, indicating in Hardy, 237 Ala. at 608, 188 So. at 268, that the presumption of a quotient verdict arose when the quotient was $6,700 and the jury awarded $6,000. In Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 488, 233 So.2d 484, 494 (1970) (opinion extended on rehearing), our supreme court held that a fair inference that the verdict was a quotient verdict arose where jury notes indicated that the jury had added together 12 figures and had divided the sum by 12 to reach $16,125 and the verdict awarded was $15,000. More recently, the supreme court determined that the presumption of a quotient verdict was raised when the jury notes recovered from the jury room yielded a quotient of $34,670 and the verdict returned by the jury was $30,000. Warner, 573 So.2d at 277. However, this court has held that a $225 variance between the quotient — $3,275 — and the verdict — $3,500 — was "much more than a mere rounding off or a slight addition or subtraction to the quotient amount" and determined that the difference, which was more than the $42 amount permitted
Elizabeth argues in her application for rehearing that the difference between the actual quotient of $194,540 and the jury's verdict of $200,000 is too large to be considered a slight deviation and, therefore, that the presumption that the jury used the quotient process did not arise. I cannot agree with Elizabeth that our focus should be limited to the numerical difference between the quotient and the verdict. As our supreme court stated in 1913, "[t]he evil effects of a quotient verdict cannot be cured by agreeing thereafter to a slightly different verdict, if it appears that the agreement made in advance entered into or induced the result...." International Agric. Corp. v. Abercrombie, 184 Ala. 244, 259, 63 So. 549, 553 (1913).
The Abercrombie court went on to discuss quotient-verdict cases from other states, including one from Texas, from which the court quoted the following test:
Abercrombie, 184 Ala. at 259-60, 63 So. at 554 (quoting Texas Midland R.R. v. Atherton, 123 S.W. 704, 704 (Tex.Civ.App.1909), quoting in turn Missouri, Kansas & Texas Ry. Co. of Texas v. Hawkins, 50 Tex.Civ. App. 128, 133, 109 S.W. 221, 224 (1908)).
The Abercrombie court also relied on a Kansas case in which the jurors, after determining the quotient, which was "nearly $300," decided to make the verdict an even amount and set the verdict at $300. Abercrombie, 184 Ala. at 261, 63 So. at 554 (citing Ottawa v. Gilliland, 63 Kan. 165, 65 P. 252 (1901)). The Abercrombie court then quoted the following portion from the opinion in Ottawa:
Abercrombie, 184 Ala. at 261, 63 So. at 554 (quoting Ottawa, 63 Kan. at 166-67, 65 P. at 253).
The present case is complicated by the fact that the jurors used shorthand numbers to figure their verdict. Clearly, the "rounding up" from $194.54 to $200.00 would not be considered a substantial deviation such that the presumption that the verdict was a quotient verdict would be overcome. When one considers that the numbers actually stand for $194,540 and $200,000, it is much more difficult to say that the difference between the quotient and the verdict is not substantial in a numerical or monetary sense. However, our supreme court has announced that a presumption that a quotient verdict exists is to be drawn when the figures used by the jury in its computations give rise to "a fair inference" that the jury determined the amount of their verdict by use of a quotient process. Fortson, 252 Ala. at 147, 39 So.2d at 651. Thus, I believe that the
The numbers on jury note 4 lead to the fair inference that the jury used the quotient process to come up with the number "$195," which is merely $.46 more than the $194.54 arrived at by the quotient process. On the same note, written in close proximity to "$195," is "$200.00." A fair inference can be drawn that the jury concluded that it should round $195 to $200, an even number. Jury note 3 indicates that the jury then concluded that it should divide the $200 damages award into "75" in compensatory damages and "125.00" in punitive damages.
I cannot agree that the $5,460 difference between the actual award of $200,000 and the quotient of $194,540 negates the inference that the jury used the quotient process to reach its verdict based on its use of the shorthand numbers $195 and $200. Although that difference is larger than any other discrepancy between a quotient and a verdict mentioned in our caselaw, I note that in Warner the $4,670 difference between the verdict and the quotient involved a $30,000 verdict, as opposed to a $200,000 verdict. Percentage-wise, the difference in the present case is smaller that the amount recognized to trigger the presumption of a quotient verdict in Warner. Thus, I cannot agree that the inference raised by jury note 4 was negated by the apparent decision to increase the verdict to a round number more easily capable of division, because Elizabeth provided no proof that such adjustment was made "`after a further consideration and the decision of the cause upon its merits.'" Abercrombie, 184 Ala. at 261, 63 So. at 554 (quoting Ottawa, 63 Kan. at 166-67, 65 P. at 253); see also Warner, 573 So.2d at 277 ("If, after obtaining the quotient, the jurors continue to deliberate and thereafter arrive at a different amount of damages, the verdict will not be considered a quotient verdict and will be sustained, absent some other infirmity.").
At oral argument, a suggestion was made that the fact that the jury was polled and each juror indicated that the verdict
Based on the above-examined authorities, I conclude that Matthew produced sufficient evidence from which arose a fair inference that a quotient process was used by the jury. The jury's verdict of $200,000 closely approximates and is substantially similar to the quotient contained on jury note 4. Thus, I conclude that he was, and is, entitled to the presumption that the jury's verdict was an impermissible quotient verdict.
As noted above, Elizabeth was permitted to offer affidavits from one or more jurors to rebut the presumption that the verdict was a quotient verdict. See Warner, 573 So.2d at 277 (affirming the trial court's exclusion of juror affidavits that tended to impeach the verdict while noting that the testimony of the jury foreman, which rebutted the presumption of a quotient verdict, was properly admitted). Our supreme court has explained:
Dukes, 216 Ala. at 240, 113 So. at 54. However, Elizabeth did not present any evidence to rebut the presumption arising from jury note 4. See Harris, 288 Ala. at 373, 261 So.2d at 46 ("The appellee produced no testimony or affidavits to prove that the jurors did not agree in advance to abide by the result of their computations, or that the quotient was only a basis for further deliberations, or any other facts to show the verdict was an expression of the fair judgment of the several jurors."); Dukes, 216 Ala. at 241, 113 So. at 54 ("In this case no evidence from jurors or other source was offered to question the connection of these papers with the verdict, or to otherwise explain their implication."). Without such evidence, the trial court had no basis for rejecting the presumption that the verdict was an impermissible quotient verdict. Accordingly, I dissent from the majority's opinion.