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Guaranty Pest Control12/30/2002
ng of liability for reckless misrepresentation. Although the record reveals that the trial court was hesitant to deny Guaranty's motion for a JML as to misrepresentation and to instruct the jury on that theory, it ultimately concluded that there was substantial evidence to support the Bushes' claim. The Guaranty contract form signed by Helen Bush on April 24, 1979, indicated that Guaranty's work order was attached " or your assurance of professional and quality workmanship," and the work order includes a specification for drilling the brick veneer foundation every 16 to 24 inches and for treating those places with termite chemicals. Moreover, the "guaranteed contract" issued by Guaranty on April 30, 1979, recited that the Bushes had agreed to pay Guaranty $200 " n consideration of GUARANTY['s] ... thoroughly spraying and treating underneath" their house. As discussed above, however, Belcher's testimony directly impeached the "thoroughness" of Guaranty's treatment in 1979, and James Bush testified that in reliance upon the representation that the house had been thoroughly treated, he had renewed his Guaranty termite bond each year for 20 years and did not hire another company to perform termite inspections or to treat any infestation during that period. Guaranty detected no infestation. From that evidence, the jury could properly conclude, as it did, that the Bushes relied on misrepresentations made by Guaranty regarding its treatment and inspections and that the subsequent termite damage necessarily flowed from the Bushes' detrimental reliance. We therefore affirm the trial court's denial of Guaranty's JML motions to the extent that they attacked the legal sufficiency of the evidence to support the Bushes' claims.
With respect to the second issue identified above, i.e., whether the jury's award of $69,020 in compensatory damages is excessive, we note that Guaranty failed to raise that issue in either of its postjudgment motions; its trial counsel (which was not its appellate counsel) challenged only the award of punitive damages as excessive. We therefore agree with the Bushes that that issue has not been preserved for appellate review, and we pretermit consideration of that issue on the authority of ConAgra, Inc. v. Turner, 776 So. 2d 792 (Ala. 2000). In ConAgra, our Supreme Court held that a party challenging a compensatory-damages award as excessive must specifically raise that issue in the trial court:
"First, ConAgra contends that the jury's award of $50,000 in compensatory damages is excessive. However, because ConAgra failed to challenge the excessiveness of the compensatory-damages award specifically as a ground for a new trial, this issue is procedurally barred. State v. Ferguson, 269 Ala. 44, 45, 110 So. 2d 280 (1959) ('The question of the excessiveness of the jury's verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by a motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive.' (Emphasis added.)) See also ยง 12-22-71, Ala. Code 1975, Peete v. Blackwell, 504 So. 2d 222 (Ala. 1986), and Feazell v. Campbell, 358 So. 2d 1017 (Ala. 1978)." 776 So. 2d at 794.
We next consider Guaranty's arguments concerning the sufficiency of the evidence with respect to the jury's award of punitive damages. While "there is no such thing as a claim of punitive damages" under Alabama law, "there are claims on which our law authorizes the trier of fact to impose punitive damages if certain wrongfulness is proved by a sufficient weight of the evidence." Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala. 1999). In this case, the Bushes sought an award of
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