
    Billy Ray HARMON and Edward O. Whaley v. MOTORS INSURANCE CORPORATION and Cooper Chevrolet, Inc. COOPER CHEVROLET, INC. v. Billy Ray HARMON and Edward O. Whaley. MOTORS INSURANCE CORPORATION v. Billy Ray HARMON and Edward O. Whaley.
    83-1406, 84-8 and 84-9.
    Supreme Court of Alabama.
    June 19, 1987.
    Rehearing Denied Dec. 23, 1987.
   ON RETURN TO REMAND

STEAGALL, Justice.

The trial court’s order on remand conditioning the denial of a new trial on the plaintiffs’ acceptance of remittitur is affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.

On Application for Rehearing

STEAGALL, Justice.

On application for rehearing, we have again reviewed the extensive order written by the trial court, and we find that the order complies with the requirements set forth by this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986).

In this case the trial judge granted the defendants’ motion for a new trial unless the plaintiffs filed a remittitur of $460,000. The plaintiffs refused to accept the remit-titur, and appealed. Even though we affirm the judgment of the trial court granting the defendants a new trial, we do so conditionally. We believe that we should permit the plaintiffs to elect whether to accept a judgment for an amount less than the amount awarded by the jury. Based on this belief, and pursuant to the authority granted to this Court by Code 1975, § 12-22-71, if the plaintiffs, within 28 days after the date this opinion is filed, file with this Court a remittitur of $460,000, then this Court will remand the case to the trial court with directions to set aside its judgment granting a new trial; otherwise, that judgment will stand affirmed.

We emphasize that our conditional af-firmance is based on the trial court’s specific finding that the verdict was the product of jury bias, passion, and prejudice; thus, our holding is not to be understood as expressing an opinion as to the maximum amount these plaintiffs are entitled to recover in the event of a new trial before an unbiased and unprejudiced jury.

AFFIRMED CONDITIONALLY; APPLICATION OVERRULED.

TORBERT, C.J., and MADDOX, BEATTY, HOUSTON, and ADAMS, JJ., concur.

JONES, ALMON, and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. After reconsideration of the trial court’s order on remand, I would grant the application for rehearing and remand this cause for the trial court’s reconsideration of its order of remittitur. Without the benefit of a further evidentia-ry hearing, the trial court in its order stating its reasons for ordering a remittitur as a condition for denying the defendants’ motion for a new trial, sets out factual grounds not supported by the evidence of record, as well as improper legal conclusions. For example, the order recites the “fact” that any judgment in excess of $40,-000 would have a devastating economic impact on one of the defendants. At trial, there was no issue, and thus no evidence, of either defendant’s financial condition, and no further evidence was taken on remand.

Additionally, the trial court found on remand that the remittitur was justified by the “fact” that the plaintiffs participated in the fraud, in face of this Court’s holding that “[Whether the plaintiffs participated in the fraud] was properly presented to the jury, and the jury found that [the plaintiffs] did not participate in the fraud.” Further, the trial court improperly speculated that “It is conceivable that the judgment against both defendants, Cooper Chevrolet and Motors Insurance Corporation, would ultimately have to be borne by Cooper Chevrolet....”

My dissent is not to be construed as expressing an opinion on the propriety of the trial court’s order of remittitur. Rather, I am saying that our Hammond remand procedure was intended to establish more definitive criteria for more consistent application in post-judgment proceedings where “excessiveness” of a jury’s award is alleged as a ground for a new trial. I continue to believe that our goal is a worthy one; but it is being thwarted, rather than enhanced, when we affirm a Hammond remand order based on evidence de-hors the record and on a misapplication of the law.

ALMON and SHORES, JJ., concur.  