Kulakowski v. Cowart, [Ms. 2140860, May 20, 2016] __ So. 3d __ (Ala. Civ. App. 2016). Kulakowski appeals from a judgment entered on a jury verdict by the Mobile Circuit Court awarding Cowart and an LLC compensatory and punitive damages following damages allegedly caused by Kulakowski while salvaging granite panels during demolition of a bank building in Mobile. The Court of Civil Appeals rejects several new trial issues, as follows.

First, the court rejects the contention that Cowart and the LLC violated Batson v. Kentucky, 476 U.S. 79 (1986) when they struck almost all the African-American members of the jury venire. The court ruled the trial court did not error in denying Kulakowski’s Batson challenge because “an argument relying solely on the number of African-Americans struck from the jury [is] insufficient to support a Batson challenge.” Ms. at *10, 16-17, citing Williford v. Emerton, 935 So. 2d 1150, 1157 (Ala. 2004). Quoting Sharrief v. Gerlach, 798 So. 2d 646, 655 (Ala. 2001), the court at Ms. *17-18 holds “It is important that the [party challenging the composition of the jury] come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case of ... discrimination.”

Next, the court rejects a challenge to language used in the verdict form based upon the failure by Kulakowski to object to its wording before the jury retired to deliberate. Citing Target Media Partners Operating Co. v. Specialty Mktg. Corp., 177 So. 3d 843, 862 (Ala. 2013), the court noted “... a failure to object ‘to the verdict form ... after the trial court read it to the jury and provided the written verdict form to the jury’ precluded appellate review because counsel was ‘presented with an opportunity at the end of the trial court’s charge to the jury to state any objection’ but had not done so.” Ms. *19.

The court rejected a challenge to the sufficiency of the evidence supporting the punitive damages award upon finding that Kulakowski did not move for judgment as a matter of law at the close of all of the evidence pursuant to Rule 50(a), Ala. R. Civ. P., as required to preserve an objection to the sufficiency of the evidence supporting a judgment entered on a jury’s verdict. Ms. *20, citing Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d 738, 741 (Ala. 1990).

Next, the court, Ms. *21-4, rejects Kulakowski’s contention based upon Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), that the judgment entered upon the jury’s verdict for punitive damages was excessive as a matter of law, finding that Kulakowski failed to demonstrate error by the trial court in disallowing as untimely an amendment to his post-judgment motion which raised the alleged excessiveness issue. The court concluded it could not hold the trial court in error for failing to hold a Hammond hearing or for failing to state its reasons for denying a new trial based on the late-asserted excessiveness argument. Ms. *24-25.

The court next rejected the contention that the trial court improperly submitted a conversion counterclaim to the jury. While it is an accepted principle of Alabama law that “an action for conversion will not lie for the taking of real property, nor will it lie for the taking of personal property that has been incorporated into real property,” Ms. *26, quoting Garrett v. Valley Sand & Gravel, Inc., 800 So. 2d 600, 601-02 (Ala. Civ. App. 2000), the court found that Kulakowski did not object to the trial court’s inclusion of a conversion charge to the jury and thereby waived any error in allowing the conversion counterclaim to be presented to the jury. Thus, the issue was not properly preserved and therefore could not be considered on appeal given the holding in Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196, 1209 (Ala. 2006). Ms. *26-8. Correspondingly, because of the failure to object to the conversion charge, “unobjected-to instructions of the trial court bec[a]me the law of the case.” Ms. *29-30 quoting Beiersdoerfer, 953 So. 2d at 1209-10.

The court rejected the contention that the trial court erred in submitting the negligence counterclaim to the jury based upon an alleged insufficiency of evidence because of a failure to comply with Rule 50(a), Ala. R. Civ. P. by not filing a motion for JML at the close of the evidence to preserve the issue for appellate review. Ms. *30-31, citing Edwards v. Davis, 600 So. 2d 313, 314 (Ala. Civ. App. 1992).

At Ms. *37-42, the court rejects Kulakowski’s argument that the trial court erred in sustaining an objection to his closing argument where he commented upon Cowart’s and the LLC’s failure to call their demolition contractor’s supervisor as a witness at trial. Recognizing the principles that “[t]he trial court is in the best position to make a determination regarding possible bias and weigh the claims of equal availability,” ... and that “error is not likely presumed under this rule of no comment,” the court found no error in the trial court’s determination that the witness was “equally available” to the parties. Id., citing Olympia Spa v. Johnson, 547 So. 2d 80, 85 (Ala. 1989) and United Sec. Life Ins. Co. v. Goddard, 42 Ala. App. 629, 632, 174 So. 2d 791, 794 (1965).

The court thus rejected Kulakowski’s other contentions as harmless within the meaning of Rule 45, Ala. R. App. P., (“No judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... the improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). The judgment awarding compensatory and punitive damages was therefore affirmed.

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