Johnson v. Investment Co. of South, L.L.C.

869 So. 2d 1156, 2003 Ala. Civ. App. LEXIS 485, 2003 WL 21572960
CourtCourt of Civil Appeals of Alabama
DecidedJuly 11, 2003
Docket2020418
StatusPublished
Cited by1 cases

This text of 869 So. 2d 1156 (Johnson v. Investment Co. of South, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Investment Co. of South, L.L.C., 869 So. 2d 1156, 2003 Ala. Civ. App. LEXIS 485, 2003 WL 21572960 (Ala. Ct. App. 2003).

Opinion

THOMPSON, Judge.

Avis L. Johnson sued Oxmoor Ridge Apartments; Investment Company of the South, Inc.; Investment Company of the South, L.L.C.; Dutch Manor Partners, Ltd.; and ICS Management, Inc. (hereinafter together referred to as “the defendants”), seeking damages for an injury she sustained on January 3,1999, on the premises of Oxmoor Ridge Apartments (“the apartments”).1 The defendants denied liability, and the case was tried before a jury. At the close of Johnson’s case, the defendants moved for a judgment as a matter of law pursuant to Rule 50, Ala. R. Civ. P. After hearing arguments on that motion, the trial court granted the motion and entered a judgment in favor of the defendants. Johnson appealed, and this case was transferred to this court by the su[1160]*1160preme court, pursuant to § 12-2-7(6), Ala. Code 1975.

“An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, supra, at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000) (footnote omitted).

The record indicates that Johnson had been a tenant of the apartments for more than a year. Johnson testified that she first lived in Building 411, apartment number 7 beginning in March 1997. Johnson explained that, at that time, she paid the rent called for under the lease agreement, but her mother was listed on the lease agreement as the tenant leasing the premises. Johnson testified that on September 1, 1998, she entered into an agreement to lease apartment number 7 in her own name. It is undisputed that Johnson immediately fell behind in her rent.

Johnson testified that in mid-November 1998 she received a letter from Jim Sande-fer, the attorney for the apartments, regarding her failure to pay her rent pursuant to the lease agreement. That letter stated, in pertinent part:

“YOU ARE HEREBY NOTIFIED, that in consequence of your default in the failing to pay rent in accordance with your lease or rental agreement concerning the above-referred to premises, that your possessory interests in said premises will terminate TWENTY FOUR (24) HOURS after the service of this Notice. You are then to deliver possession of the said premises to me or my agent or an Unlawful Detainer Action will be filed against you. Should you want to reinstate your lease, you must contact me immediately.”

Johnson stated that she contacted San-defer in November 1998 and again in December 1998; she did not pay any installments of her rent due under the lease agreement during those months. Johnson testified that Sandefer instructed her to move out of apartment number 7. Johnson first testified that Sandefer did not give her an exact date by which to remove her belongings from the apartment, but she later stated that in the third week of December 1998 Sandefer agreed to allow her to stay in the apartment until the first week of January 1999. It is undisputed, however, that in November 1998 Sandefer, on behalf of some of the defendants, instituted an unlawful-detainer action against Johnson and that the court hearing that [1161]*1161action entered a default judgment against Johnson on December 2, 1998. On December 17, 1998, the court in which the unlawful-detainer action was filed issued a writ of execution of its December 2, 1998, judgment in that action. Johnson testified at trial, however, that she had no knowledge of the unlawful-detainer action, the judgment in that action, or the writ of execution issued in that action until after she suffered the injury for which she seeks compensation in this action.

Johnson testified that the manager of the apartments had left her employment in the fall of 1998 and that a notice posted near Johnson’s mailbox instructed tenants, if they wanted to discuss leasing issues, to speak with the manager of another apartment complex, which was presumably also owned by some of the defendants. Johnson testified that in December 1998 she spoke to someone at the other apartment complex regarding her request for additional time to move out of the apartment. Although there were several discrepancies in Johnson’s testimony regarding the details of her agreement with the unidentified person at the other apartment complex, the essence of Johnson’s testimony was that that person agreed that, if Johnson removed her belongings and cleaned her apartment, she could turn in her keys to apartment number 7 during the first week of January 1999.

On the night of January 3, 1999, as Johnson returned to the apartment to retrieve the last of her belongings, she slipped on some ice in the apartments’ parking lot and fell. As a result of that fall, Johnson suffered a broken leg. The evidence tended to indicate that it had rained for the two days before January 3, 1999, that water had been standing in the parking lot during that time, and that, on the night of January 3, 1999, it was very cold outside. At the trial, Johnson insisted that she did not see the ice in the parking lot and that she had no reason to suspect that there might be ice in the parking lot. She also insisted that the defendants knew or should have known of the hazardous condition of the parking lot and should have warned her of that condition. .

During the trial, Itell Linson, another tenant of the apartments, testified on behalf of Johnson. Linson testified that ice tended to form in the parking lot each year in the winter if temperatures fell below freezing during or soon after a rain. Lin-son also stated that the apartment management set out signs warning of the dangers of ice; however, she could not say when those signs were set out or whether they were set out before or after Johnson’s January 3, 1999, fall. As Linson readily admitted, one part of her testimony was different from a portion of a sworn statement she had made to the investigator for Johnson’s attorney; as detailed later in this opinion, Linson explained the reason for that discrepancy. Johnson sought repeatedly to have Linson’s written statement admitted into evidence, but the trial court repeatedly sustained the defendants’ objections to the admission of that statement.

Also during the trial, Johnson called Andrew Graettinger, Ph.D., as an expert witness in the field of geotechnical engineering. Johnson sought repeatedly to elicit from Dr.

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869 So. 2d 1156, 2003 Ala. Civ. App. LEXIS 485, 2003 WL 21572960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-investment-co-of-south-llc-alacivapp-2003.