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REMITTITUR OF PUNITIVE DAMAGES - CREDIBILITY OF WITNESS-UNSIGNED AFFIDAVIT: THOMAS V. HEARD

Thomas v. Heard, [Ms. 1150119, Nov. 3, 2017] __ So. 3d __ (Ala. 2017). In this per curiam opinion (Parker, Main, and Wise, JJ., concur; Shaw and Bryan, JJ., concur in the result; Stuart, C.J., Bolin, Murdock, and Sellers, JJ., dissent) the Court affirms the Geneva Circuit Court’s judgment after remand leaving intact punitive damage awards on claims arising from an intersection collision. The respective damage awards for each of the injured victims were $850,000 compensatory/$750,000 punitive to Randell Heard, $450,000 compensatory/$750,000 punitive to Donna Heard, and $500,000 compensatory/$500,000 punitive to Laura Wells.

In a prior opinion, a sharply-divided court affirmed the submission of the wantonness claim against the defendant to the jury in view of evidence of the defendant’s voluntary intoxication.

On return from remand, the Court noted that the issues focused on by the parties in oral argument in the Hammond/Green Oil proceeding were “the degree of reprehensibility of defendant’s conduct and the financial position of the defendant.” Ms. *5. The Court found that the defendant’s conduct in operating his motor vehicle while intoxicated “evinces indifference and a reckless disregard for the health and safety of others.” Ms. *8. The Court held that “the trial court properly found that Thomas’s conduct was reprehensible; this factor weights against remittitur of the punitive-damages awards.” Ibid. The Court also found that the modest ratio between the compensatory and punitive damages militated against remittitur. Ms. *9.

In rejecting Thomas’s argument that his financial condition warranted remittitur, the circuit court held that “Thomas ‘was not a credible witness,’” Ms. *10, and placed little to no weight on his testimony concerning his alleged meager financial condition. The Court noted that a trial court’s finding concerning credibility “‘is binding [on the appellate court] which can neither pass judgment on the possible truthfulness or falsity of testimony, ... nor on the credibility of witnesses.’” Ms. *11 (internal citations and quotation marks omitted).

The Court also noted that Thomas’s affidavit, in which he asserted that he was unemployed with little to no assets, was not signed. “[A]n affidavit unsigned by the affiant ‘does not constitute admissible evidence.’” Ms. *12, quoting State Home Builders Licensure Board v. Stephens, 756 So. 2d 878, 879 (Ala. Civ. App. 1998).

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