Waiver of Alleged Error for Failure of Bench Verdict to Itemize Compensatory and Punitive Damages – Trespass by Landlord

Lay v. Destafino, [Ms. 1210383, Feb. 17, 2023] __ So. 3d __ (Ala. 2023). In a per curiam opinion, the Court (Parker, C.J., and Shaw, Wise, Bryan, Stewart, Mitchell, and Cook, JJ., concur; Sellers and Mendheim, JJ., concur in the result) affirms the Shelby Circuit Court’s bench verdict in a case arising out of a protracted feud between Todd Destafino and his ex-mother-in-law, Georgia Lay, who had a long-term business relationship that soured after Destafino and Lay's daughter divorced.

Lay argued that the $75,000 judgment for compensatory and punitive damages violated § 6-11-1, Ala. Code 1975 requiring in a tort action that “the damages assessed by the factfinder shall be itemized” as past, future, and punitive damages. The Court holds that Lay waived this argument by failing to raise it below in a post judgment motion and explains “[w]hile it is true that postjudgment motions under Rule 59(e) are usually elective rather than mandatory, such a motion is necessary to preserve an objection for appellate review when – as here – that motion is the only possible mechanism for bringing the alleged error to the trial court's attention.” Ms. *11.

The Court rejects a number of other arguments raised by Lay including her contention that she could not trespass on Destafino’s portion of property owned by BDSC, Inc., a corporation she owned jointly with him. The Court holds

There are multiple problems with this argument. For one thing, it overlooks the fact that Lay and BDSC are separate legal entities. See Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala. 1994) (" ' "The concept that a corporation is a legal entity existing separate and apart from its shareholders is well settled in this state." ' " (citations omitted)). For another, Lay does not cite, and we are not aware of, any authority supporting her assertion that a landlord cannot trespass against her tenant. Typically, it is the right to possession, not ownership, that is protected against trespass, and a tenant can have a right to exclusive possession of property (or a portion of that property) even if he does not own it.

Ms. *15.

Finally, the Court rejects Lay’s generalized argument that the punitive damage award violated § 6-11-20, Ala. Code 1975, and explains “[t]he de novo standard of review does not relieve an appellant of her burden of demonstrating that the trial court erred. Under our precedent and the Rules of Appellate Procedure, an appellant – even one seeking de novo review – must make reasoned and particularized arguments in support of reversal.” Ms. *17.

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