Memorandum Opinion Regarding Cross Motions for Summary Judgment
BENJAMIN COHEN, Bankruptcy Judge.
The matters before the Court are:
1. The
Motion for Summary Judgment for the Debtor, Robyn Bennitt
filed on January 9, 2006 (Proceeding No. 31); and
2. The
Creditor Hood’s Motion for Summary Judgment
filed on January 9, 2006 (Proceeding No. 33), as revised by
Creditor Hood’s Revised Motion for Summary Judgment
filed on January 16, 2006 (Proceeding No. 35).
After notice, a hearing was held on February 23, 2006. Appearing were Mr. Henry Lagman, the attorney for the defendant; the plaintiff Rhonda Steadman
Hood; and one of her attorneys Mr. James McFerrin. The matters were submitted on the record in this proceeding, briefs, stipulations and arguments of counsel, and a complete record of the proceedings from the state Circuit Civil Court of Jefferson County, Alabama, Civil Action No. CV 99-7128.
I. Facts
The plaintiff and the defendant are both lawyers. The plaintiff referred several cases to the defendant. In return, the defendant promised to pay the plaintiff referral fees equal to one-third of the entire attorney fees collected in those cases. The defendant settled or otherwise obtained a recovery in all of the cases referred to her by the plaintiff, and, in the process, collected $59,000 in attorney’s fees. But, the defendant paid the plaintiff only $7,500 of the promised referral fees. In response, the plaintiff filed suit against the defendant in state court claiming breach of contract and fraud. At trial, the state court provided instructions to the jury regarding the elements and requirements of both of those types of actions under Alabama law. They were also specifically instructed that they could award punitive damages against the defendant on the plaintiffs fraud count only if they were to find by clear and convincing evidence that the defendant intentionally deceived the plaintiff.
The jury delivered a
general verdict
awarding the plaintiff undesignated damages in the amount of $90,000. The judgment entered by the trial court on the jury’s verdict was affirmed by the Alabama Court of Civil Appeals without opinion.
The plaintiff contends that the debt represented by the state court judgment is nondisehargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code. That section exempts debts resulting from, “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition ...” from discharge. 11 U.S.G. § 523(a)(2)(A).
The parties filed cross motions for summary judgment. Each contends that all of the issues required for resolution of this adversary proceeding have already been considered and resolved by the state court. Consequently, each argues that application of the doctrine of collateral estoppel precludes relitigation of those same issues by this Court, and each believes she is therefore entitled to a judgment in her favor.
II. Legal Framework
A. Summary Judgment Standards
Rule 56(c) of the Federal Rules of Civil Procedure, applicable to the pending matters by Rule 7056 of the Federal Rules of Bankruptcy Procedure, provides that a moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The framework for determining whether there is a genuine issue of material fact that would preclude summary judgment is outlined in the Eleventh Circuit Court of Appeals decision in
Fitzpatrick v. City of Atlanta,
2 F.3d 1112 (11th Cir.1993). The Court has followed that framework here.
B.Collateral Estoppel
Collateral estoppel prevents the relitigation of issues already litigated and determined by a valid and final judgment in another court.
HSSM
#
7 Limited Partnership v. Bilzerian (In re Bilzerian),
100 F.3d 886, 892 (11th Cir.1996),
cert. denied,
523 U.S. 1093, 118 S.Ct. 1559, 140 L.Ed.2d 791 (1998). And it is well-established that the doctrine of collateral estop-pel applies in a proceeding to determine the dischargeability of a debt in bankruptcy.
Id.
The decision rendered by the Supreme Court in
Marrese v. American Academy of Orthopaedic Surgeons,
470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) requires bankruptcy courts, in dis-chargeability proceedings, to utilize a state’s principles of collateral estoppel to determine the issue preclusive effect of a judgment rendered by a court of that state. “If the prior judgment was rendered by a state court, then the collateral estoppel law of that state must be applied to determine the judgment’s preclusive effect.”
St. Laurent v. Ambrose (In re St. Laurent),
991 F.2d 672, 676 (11th Cir. 1993).
Under Alabama law, a prior judgment may be accorded collateral estoppel effect if: (1) the issue involved in the prior proceeding was identical to the issue involved in the present proceeding; (2) the issue was “actually litigated” in the prior proceeding; (3) the resolution of the issue was necessary to the prior judgment; and (4) the parties in the present proceeding are the same as those involved in the prior proceeding.
Lott v. Toomey,
477 So.2d 316, 319 (Ala.1985).
C.Section 523(a)(2)(A)
Section 523(a)(2)(A) of the Bankruptcy Code makes nondisehargeable debts for money, property, services or credit obtained by a debtor by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” 11 U.S.C. § 523(a)(2)(A). To have a debt declared nondisehargeable pursuant to 523(a)(2)(A), a creditor must prove:
1. The debtor made a false statement;
2. With the purpose and intention of deceiving the creditor;
3. The creditor relied on such false statement;
4. The creditor’s reliance on the false statement was justifiably founded;
5. The creditor sustained damage as a result of the false statement.
Fuller v. Johannessen (In re Johannessen),
76 F.3d 347, 350 (11th Cir.1996).
The discussion below of “fraud” under Alabama law will demonstrate that the above standard for proving nondischargeable fraud in a bankruptcy context is far stricter than proof of certain types of fraud under state law. Hence, it may be necessary, where fraud is alleged in a state court proceeding, for a bankruptcy court to determine whether that “fraud” rises to the level of nondisehargeable fraud in the bankruptcy context.
D.Alabama “fraud” law
What constitutes “fraud” in Alabama is the extensive subject of many statutes and judicial opinions. As the discussion below demonstrates, there are different types of fraud in Alabama law with varying degrees of intent.
Section 6-5-101 of the Code of Alabama provides, “Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.” Code of Ala.1975, § 6-5-101. Under section 6-5-101, a false representation, even if made by mistake or innocently, is actionable and entitles a plaintiff to compensatory damages.
Hall Motor Co. v. Furman,
285 Ala. 499, 504, 234 So.2d 37, 41 (1970). Fraudulent intent, or an intent to deceive, is not essential to a recovery under that section.
Standard Oil Co. v. Johnson,
276 Ala. 578, 581, 165 So.2d 361, 364 (1964). Neither is knowledge by the defendant of the falsity of his or her representations.
First Nat’l Bank of Auburn v. Dowdell,
275 Ala. 622, 626, 157 So.2d 221, 225 (1963);
Barrett v. Hanks,
275 Ala. 383, 385,155 So.2d 339, 342 (1963).
The good faith of a party in making what proves to be a misrepresentation is immaterial as to the question of whether there was an actionable fraud if the other party acted on the misrepresentation to his detriment.
Smith v. Reynolds Metals Co.,
497 So.2d 93, 95 (Ala.1986). Consequently, the mere assertion of that to be true which is not true, although believed to be true, when made to be relied on and which is relied on to the injury of a party misled thereby, may result in the imposition of liability for compensatory damages.
Hudson v. Moore,
239 Ala. 130, 133, 194 So. 147, 149 (1940);
Hartselle Real Estate & Ins. Co. v. Atkins,
426 So.2d 451, 453 (Ala.Civ.App.1983).
Intentional fraud, unlike innocent or mistaken fraud, may entitle the party deceived to receive punitive damages. That is the subject of sections 6-5-103 and 6-5-104 of the Code of Alabama.
Section 6-5-103 provides:
Willful misrepresentation of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.
Code of Ala.1975, § 6-5-103.
And section 6-5-104 provides:
(a) One who willfully deceives another with intent to induce him to alter his position to his injury or risk is liable for any damage which he thereby suffers.
(b) A deceit within the meaning of this section is either:
(1) The suggestion as a fact of that which is not true by one who does not believe it to be true;
(2) The assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;
(3) The suppression of a fact by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact; or
(4) A promise made without any intention of performing it.
Code of Ala.1975, § 6-5-104.
Read together, sections 6-5-103 and 6-5-104 define the mens rea and delineate the conduct necessary to a cause of action for a willful or intentional deception. To satisfy the mens rea requirement of the two statutes, a defendant must have: (1) purposely deceived the plaintiff with; (2) the intent to induce the plaintiff to act or alter his position. The conduct made actionable by the statutes includes: (1) intentional misrepresentations (a false statement made by someone who knows the statement to be false); (2) reckless misrepresentations (a false statement made recklessly by someone who may not know the statement to be false or someone who has no reasonable grounds for believing it to be true); (3) fraudulent concealment (non-disclosure by someone who has a duty to disclose); and (4) promissory fraud (a promise made by someone who has no intention of performing the promise).
Regardless of whether a representation was made willfully, recklessly, or mistakenly, in order to obtain a judgment based on fraud, the plaintiff must prove: (1) that the defendant made a false representation; (2) that the false representation concerned a material existing fact; (3) that the plaintiff relied upon the false representation; and (4) that the plaintiff was damaged as a proximate result of his or her reliance upon the false representation.
George v. Associated Doctors Health & Life Ins. Co.,
675 So.2d 860, 862 (Ala.1996). Where promissory fraud is involved, the plaintiff must prove two additional elements: (1) that the false promise was made with a present intent to deceive and (2) that, at the time the false promise was made, the defendant intended not to perform.
Valley Properties, Inc. v. Strahan,
565 So.2d 571, 576 (Ala.1990).
To be actionable, a misrepresentation must be one of a material fact.
Lawson v. Cagle,
504 So.2d 226, 227 (Ala.1987). A fact is considered “material” if it is one that is likely to induce the party to whom the representation is made to take action.
Havens v. Trawick,
564 So.2d 917, 920 (Ala.1990). But the misrepresentation need not have been the sole motivation for the plaintiffs entering into a contract. It is sufficient if the misrepresentation materially contributed to the plaintiffs making the contract and was of such a character that the plaintiff would not have consummated the contract, had he or she known the falsity of the statement.
Bank of Red Bay v. King,
482 So.2d 274, 282 (Ala.1985).
The plaintiff must show that reliance upon the misrepresentation was reasonable under the circumstances.
Foremost Ins. Co. v. Parham,
693 So.2d 409, 421 (Ala.1997). Where a party has reason to doubt the truth of a representation or is informed of the truth before he acts, he has no right to act thereon.
M.J.M., Inc. v. Casualty Indem. Exch.,
481 So.2d 1136, 1141 (Ala.1985). “If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘volun-ti non fit injuria’.”
Torres v. State Farm Fire & Cas. Co.,
438 So.2d 757, 759 (Ala. 1983) quoting
Munroe v. Pritchett,
16 Ala. 785, 789 (1849).
If the circumstances sur
rounding the pronouncement of the representation would have aroused suspicion as to its validity in the mind of a reasonable person, the plaintiff cannot be said to have reasonably relied upon the misrepresentation.
Holman v. Joe Steele Realty, Inc.,
485 So.2d 1142, 1144 (Ala.1986);
Cook v. Brown, 393
So.2d 1016, 1019 (Ala.Civ.App.1981). But absent suspicious circumstances, or patent falsity, a plaintiff has no duty to affirmatively investigate and determine for himself whether or not the defendant is telling the truth.
Shahan v. Brown,
167 Ala. 534, 52 So. 737 (1910).
Punitive damages may not be awarded if liability is imposed based upon innocent or mistaken fraud. Therefore, while the good faith of a party in making a misrepresentation is immaterial to the determination of whether or not a fraud has been committed if another party has acted on the misrepresentation to his or her injury, it is material to the question of damages.
Hall Motor Co. v. Furman,
285 Ala. 499, 503, 234 So.2d 37, 40 (1970).
Punitive damages, by statute, may be awarded only, “where 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.” Code of Ala.1975, § 6-ll-20(a). “Fraud” is defined particularly in the statute as, “An intentional misrepresentation, deceit, or concealment 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.” Code of Ala.1975, § 6 — 11— 20(b)(1).
Absent from the statutory list of types of actions that will support an award of punitive damages is an action for “breach of contract.” “A claim for breach of contract will not support an award of punitive damages.”
Nolin v. Dismukes,
554 So.2d 1019, 1020 (Ala.1989). And the statute was not designed to create a right to punitive damages which did not otherwise exist, or to expand the right to punitive damages to actions which would not have supported such a claim, prior to the statutes’ enactment. “Nothing contained in this article is to be construed as creating any claim for punitive damages which is not now present under the law of the State of Alabama.” Code of Ala.1975, § 6-ll-20(a).
As the above demonstrates, a judgment can be awarded in state court for fraud where the fraud committed does not rise to the level of nondischargeability as required under the stricter bankruptcy law standard.
III. Application of Law to Facts
Collateral estoppel would preclude only the litigation of issues in this proceeding if those same issues were actually and necessarily decided by the jury in the state court proceeding. “In order for the state court litigation to have collateral estoppel effect in a bankruptcy court, it
must be clear that the factual determinations made by the trier of fact parallel the facts necessary to meet the federal standard of nondischargeability.”
Atchley v. Stover (In re Stover),
88 B.R. 479, 483 (Bankr.S.D.Ga.1988). Hence, for collateral estoppel to preclude litigation of the non-dischargeability of the debt owed by the defendant to the plaintiff pursuant to section 523(a)(2)(A), the state court jury would have had to have determined that the defendant made a false statement with the purpose and intention of deceiving the plaintiff; the plaintiff relied on such false statement; the plaintiffs reliance on the false statement was justifiably founded; and the plaintiff sustained damage as a result of the false statement.
The jury’s verdict in this matter does not identify what issues the jury actually and necessarily decided in arriving at its verdict. The verdict simply rendered a general verdict against the defendant. The verdict reads:
We, the jury, find in favor of the Plaintiff, Rhonda Steadman Hood, and against the Defendants, Bennitt
&
Buf-ford, LLC and Robyn G. Bufford; and assess the Plaintiffs damages in the amount as follows: $ Ninety Thousand and no/100 Dollars ($90,000).
Verdict,
dated November 15, 2000, in Civil Action No. CV 99-7128(attached as part of Exhibit 1 to
Creditor Hood’s Revised Motion for Summary Judgment
filed on January 16, 2006 (Proceeding No. 35)).
As is apparent, the verdict does not specify which of the plaintiffs two causes of action formed the basis of the jury’s decision. If the jury had indicated, in its verdict, that any portion of the damages awarded were punitive, rather than compensatory, it could be inferred that its verdict was based on the plaintiffs fraud count. That inference would be supported by the legal reality that the jury must have concluded that the defendant was guilty of intentional fraud, since, under Alabama law, punitive damages cannot be awarded for breach of contract, and may only be awarded for intentional fraud.
In contrast, the verdict does not indicate whether the damages awarded are compensatory or punitive. And it does not specify what portion, if any, of the damages awarded were intended to be punitive, rather than compensatory. Thus, the verdict neither compels nor supports the conclusion that the jury based its decision on the plaintiffs fraud count. By the same token, the verdict does not compel or support the conclusion that the jury based its decision on the plaintiffs breach of contract count either. It simply offers no clue as to what issues the jury actually and necessarily decided in arriving at its decision to award damages in favor of the plaintiff, other than that the defendant failed to honor her promise to pay referral fees to the plaintiff. (The plaintiff makes a practical argument in this regard which is discussed below.)
As discussed above, “collateral estoppel assigns a preclusive effect only to those issues actually and necessarily decided in the prior lawsuit.”
S.E.L. Maduro (Florida), Inc. v. M/V Antonio de Gastaneta,
833 F.2d 1477, 1483 (11th Cir.1987). And as some of the cases cited below demonstrate, “If the jury could have premised its verdict on one or more of several issues, then collateral estoppel does not act as a bar to future litigation of the issues.”
Id.
Similarly, “because it was not possible to determine on which theory the jury rendered its verdict, the issue was not precluded from trial in a subsequent case.”
Board of County Sup’rs of Prince William County, Va. v. Scottish & York Ins. Services, Inc.,
763 F.2d 176, 179 (4th Cir.1985).
Based on the above, and the cases cited below, the Court finds that since this jury could have based its verdict on either of
the plaintiffs two causes of action, and did not necessarily base its decision on the plaintiffs fraud claim, collateral estoppel does not bar the litigation in this proceeding of issues germane to the dischargeability of the debt owed by the defendant to the plaintiff by way of section 523(a)(2)(A).
But the plaintiff disagrees and contends that this Court should infer from the
amount
of damages awarded that the jury-in the state court based its verdict on a finding of intentional fraud. She claims that the evidence presented to the jury-proved that she was entitled to only $12,167 in compensatory damages. Her reasoning is that, since the jury awarded an amount which exceeded her compensatory damages, it must have intended the overage to represent punitive damages, which, by law, can only be awarded based on a finding of intentional fraud. The plaintiff concludes that the jury’s award of ostensibly punitive damages indicates that its verdict was necessarily based on a find-
ing of intentional fraud. While this is an enticing argument, it is not one this Court is allowed to accept.
The plaintiff speculates as to what the jury reasoned. As the cases discussed below demonstrate, this Court cannot.
At issue in this case is an Alabama judgment based on a general verdict rendered by an Alabama jury. As such, it is governed by Alabama law. That law is embodied in the decision of the Alabama Supreme Court in
City Realty, Inc. v. Continental Cas. Co.
623 So.2d 1039 (Ala. 1993) which, with respect to judgments rendered by Alabama courts, decried the type of inferential calculations suggested by the plaintiff as, “speculative and improper.”
Id.
at 1045.
In
City Realty
the prospective purchasers of a parcel of realty filed suit against a real estate brokerage firm and its manager alleging that the firm and its manager engaged in fraudulent conduct which prevented the purchasers from buying the property and resulted in the manager buying the property for herself. The jury returned a general verdict against the defendants and awarded the plaintiffs unspecified damages in the amount of $300,000. The trial court ordered remitti-tur of the damages to $255,000, based on its conclusion that the jury had awarded an excessive amount of punitive damages against the defendants, despite the fact that the verdict did not reflect that the jury had awarded any punitive damages, or that the jury had intended any portion of its award to represent punitive damages. The trial court’s reasoning was, just as has been suggested by the plaintiff in this case, that since the evidence in the case indicated that the plaintiffs were only entitled to $5,000 in compensatory damages, the jury must have intended for the remainder of its award, $295,000, to constitute punitive damages. The Alabama Supreme Court reversed the remittitur on the grounds that the trial court should not engage in speculation regarding whether or not the jury intended to award punitive damages against the defendants, or how the jury may have intended its award to be apportioned between compensatory and punitive damages. The court also recognized that there was no basis, other than speculation, for concluding that the jury intended to award punitive damages against the defendants, or that the jury intended to apportion its damage award in the manner determined by the trial court.
The opinion reads in part:
We now turn to the correctness of the damages awarded. Before we can address the arguments of the parties in this respect, however, we must examine a problem that also confronted the trial court. The jury’s verdict was an undes-ignated award of $300,000. We do not know precisely the elements of that award.
The jury’s verdict was consistent with the form the trial court directed it to use. This form gave the jury only two options, to find an amount for the plaintiff or to find for the defendant. This form was defective in that it did not permit the jury to state a finding for both the plaintiff and the defendant, e.g., for the plaintiff as to compensatory damages, and for the defendant as to punitive damages, and it was defective as unresponsive to the issues at trial. For example, absent some specific jury determination as to punitive damages, the matter of Cochran’s culpability remains unresolved.
Because of the inherent flaws in the jury verdict form, which limited the jury’s response,
there is no way for this Court to know what part of the award was for compensatory damages and what part, if any, was for punitive damages.
Confronted with this problem, the trial court held that the jury could not have properly found compensatory damages in excess of $5,000. Then, based on that determination, it concluded that all other damages awarded by the jury must have been punitive damages. The trial court then found that $295,000 in punitive damages ($300,000 minus $5,000 compensatory damages) was excessive.
The Forbuses argue that it was “pure speculation” for the trial court “to designate what portion of the verdict was
compensatory and what portion was punitive.” We agree. Who can say with certainty that the jury did not award, for example, $800,000 in compensatory damages, meaning, under the trial court’s reasoning, that a remittitur of $295,000 would have been in order. We do not suggest that this was the case.
To the contrary, ive suggest that any such calculations are speculative and improper.
“[A] court’s right to amend a jury verdict after discharge of the jury is limited to matters of form or clerical errors that are apparent from the record .... ”
Alabama Farm Bureau Mut. Cas. Ins. Co. v. Williams,
530 So.2d 1371, 1377 (Ala.1988). A court’s authority to amend a verdict after the jury has been discharged cannot extend to matters of substance that a jury must determine.
Id.; Alexiou v. Christu,
285 Ala. 346, 232 So.2d 595 (1970).
Therefore, we hold that the trial court erred in its post-trial order.
The trial court improperly apportioned the jury award into punitive and compensatory damages,
and, based on that improper action, erred in ordering a remittitur of punitive damages. We reinstate the jury’s verdict.
Having reinstated the jury’s verdict, we must consider how we are to review it. How can we consider whether the amount of the jury award is excessive when we cannot know what that amount represents?
The Forbuses argue that the $300,000 verdict would be supported in any event, claiming that the award was supported by proof on the question of compensatory damages alone. If the jury verdict of $300,000 would have been supported by the evidence in any event, then our inability to review it in terms of specific punitive damages or compensatory damages would be of no meaningful consequence. So too, it would be harmless error that the trial court failed to comply with Ala.Code 1975, § 6-11-1 (Supp. 1988), which provides:
“In- any civil action based upon tort ..., except actions for wrongful death ..., the damages assessed by the fact-finder shall be itemized as follows:
(1) Past damages
(2) Future damages
(3) Punitive damages”
Although we would hold that some $300,000 combinations of compensatory damages and punitive damages would be supported by the evidence in this case, we would hold, for example, that an award of $300,000 compensatory damages-which the jury might have intended as its award-would not be supported by the evidence. We reject the Forbuses’ arguments to the contrary.
Obviously, in this situation a remand for further proceedings would seem the answer. However, to justify a remand, should there not have been an objection to the court’s action regarding the verdict form? Not only was there no such objection in this case, it appears that the Forbuses, Cochran, and City Realty agreed to the form of the verdict. Perhaps for tactical reasons, these parties agreed with the trial court that it solicit a verdict either wholly in favor of the plaintiff, with a lump sum award, or wholly in favor of the defendants:
In
Green Tree Acceptance[, Inc. v. Standridge],
565 So.2d at 38 [(Ala.1990)], we discussed the situation of unitemized verdicts and § 6-11-1. On appeal, the defendant in that case argued that the trial court’s failure to use verdict forms itemizing compensatory and punitive damages, consistent with § 6-11-1, required a new trial. The defendant had not properly raised this issue in the trial court. We stated: “This Court will not put a trial court in error for failure to
rule on a matter that, according to the record, was neither presented to nor decided by it.”
Id.
at 46. We declined to remand the case on that ground for a new trial.
Here, no one objected to the verdict form and, in any event, we cannot properly remand this case for another jury to determine matters that were not determined in the first instance because of a situation the parties in the Forbus case agreed to. The economic and judicial resources of this state should not be so burdened.
In sum, we hold that the trial court erred in apportioning the verdict of $300,000 into compensatory and punitive damages. We do not disturb the $300,000 verdict.
We cannot say whether it is right or wrong; we do not know what it represents, and it could be either right or wrong, i.e., either appropriate or excessive.
We decline to remand this case for further determinations that would shed light on this issue, because the parties did not object to the undesig-nated verdict at trial.
623 So.2d at 1044-1046 (footnotes omitted)(emphasis added).
IV. Conclusion
Under
City Realty, Inc.,
this Court is not at liberty to speculate whether, or to what extent, the jury intended for any part of its award to represent punitive damages. Moreover, even if this were not an Alabama judgment, it would constitute an improper intrusion on the independent role of the jury for this Court to attempt to distill specific findings from a general verdict, where, under the circumstances, that verdict could have been based on either of two alternative theories, one of which does not permit an award of punitive damages. Therefore this Court concludes that there are genuine issues of material fact and therefore both motions for summary judgment should be denied.
A separate order will be entered in conformity with this opinion.