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Guaranty Pest Control12/30/2002
punitive damages on their reckless-misrepresentation claim, i.e., the claim that the trial court was most reluctant to submit to the jury. Ultimately, the trial court decided to submit the reckless-misrepresentation claim to the jury, over Guaranty's objection.
The trial court indicated that it would give instruction number 11.03 of the Alabama Pattern Jury Instructions: Civil, which is based upon § 6-11-20, Ala. Code 1975, and noted that that pattern instruction called for a trial court to "read only those portions of the charge on which evidence is submitted." In giving that instruction, the trial court informed the jury that for the Bushes to recover punitive damages, they must prove by "clear and convincing evidence that [Guaranty] consciously or deliberately engaged in fraud." The trial court also stated that "fraud means an intentional misrepresentation of a material fact the concealing party had a duty to disclose which was committed with the intention on the part of the defendant thereby depriving a person or entity of property or legal rights or otherwise causing injury " (emphasis added). Although Guaranty objected to the punitive-damages instruction, the Bushes did not. The jury-verdict form directed the jury to circle either "yes" or "no" depending on whether it decided to award punitive damages on that claim. After deliberating, the jury returned a verdict in favor of the Bushes on the "punitive-damages" aspect of the reckless-misrepresentation claim and awarded punitive damages of $79,166.66. The trial court denied postjudgment relief as to that award, and on remand from this court entered an order concluding that the punitive-damages award was not excessive.
In enacting § 6-11-20, the Legislature determined that punitive damages "may not be awarded in any civil action" (except wrongful-death actions) unless "it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff." Ala. Code 1975, § 6-11-20(a). The Legislature defined "clear and convincing evidence" as " vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." Section 6-11-20(b)(4). The Legislature also stated that " roof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." Id. Finally, the Legislature defined "fraud" as " n intentional misrepresentation ... of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury ." Ala. Code 1975, § 6-11-20(b)(1) (emphasis added).
Although § 6-11-20(a) permits an award of punitive damages where a defendant has consciously or deliberately engage in "oppression," "wantonness," or "malice" toward a plaintiff, the Bushes were content to have the jury charged only on "fraud." Because, under Alabama law, unchallenged jury instructions become the law of the case, see Louisville & Nashville R.R. v. Atkins, 435 So. 2d 1275 (Ala. 1983), we will review only the sufficiency of the evidence in this case, in light of the standard adopted by the Legislature in § 6-11-20, Ala. Code 1975, to award punitive damages on the fraud theory on which the jury was instructed.
As we have discussed above, the Bushes presented evidence tending to show that Guaranty had repre
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